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The Equal Rights Amendment and the Judiciary:

Many conservative critics of the Equal Rights Amendment, as well as some commenters on my previous ERA posts, claim that the ERA would never be used to strike down liberal policies such as affirmative action for women, because liberal judges would interpret it to avoid this result. As evidence, they cite the interpretation of the Civil Rights Act of 1964 to permit affirmative action, despite the fact that racial preferences seem clearly inconsistent with the law.

This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

It is therefore highly unlikely that the today's judiciary would approach the Equal Rights Amendment in the same way that their predecessors treated the civil rights acts of the 1960s. Unlike in the case of the civil rights acts, where today's conservative judges are to some extent constrained by yesterday's liberal precedents, modern judges will have the chance to interpret the ERA on a blank slate. Even with respect to the civil rights acts, it is worth noting that the more conservative Supreme Court of the 1980s cut back on some of the liberal Warren and Burger Court precedents in this area, only to be swatted down by Congress in the 1991 Civil Rights Act. To paraphrase Donald Rumsfeld, we interpret constitutional amendments with the judges we have, not with those we had decades ago. And that will have a major impact on the judiciary's treatment of the ERA.

FantasiaWHT:
I don't really buy that comparison... The Court in the 60's and 70's upheld new statutes that were supported by a century-old amendment.

Whether or not the current Court would uphold new statutes based on a new amendment isn't the same situation.

It is highly unlikely that the Court won't, at some time in the future, swing back to a nontextualist stance and affirm liberal social policies that the current Court would not.
4.10.2007 3:44pm
Deoxy (mail):
"It is highly unlikely that the Court won't, at some time in the future, swing back to a nontextualist stance and affirm liberal social policies that the current Court would not."

That's what I was going to say, almost exactly.

Just because the judges w have today aren't deranged egomaniacs who redefine plain nglish language at whim doesn't mean we won't in the future - why give them any more ammunition?

And I find the basic premise (that today's judges are better) to be somewhat poor, considering that the Court upheld racial preferences (albeit in a mildly limited way) just last year (or was that the year befor now? The Michigan case...).
4.10.2007 3:52pm
Jim Copland (www):
An interesting point re: affirmative action. As I read Grutter, the Court gave significant deference to Michigan's claim that race preferences were necessary to achieve a "critical mass" of given minority groups for diversity purposes. While the majority was disingenuous in doing so -- given that the purported "critical mass" was twice as large for blacks as for Latinos -- it seems to me that it would be hard for any university to make this argument plausibly for women, excepting perhaps a small number of graduate math and science programs. It would be patently ridiculous to argue that the "critical mass" of women was approaching 50 percent.
4.10.2007 3:55pm
Ilya Somin:
"It is highly unlikely that the Court won't, at some time in the future, swing back to a nontextualist stance and affirm liberal social policies that the current Court would not."

It would take many years of liberal administrations and congresses to get the kind of liberal courts that existed in the 60s and 70s. Given the close balance between the two parties, that is an unlikely scenario. Moreover, even if it did happen, by that time the conservative interpretation of the ERA would be to some extent institutionalized and future liberal judges could not easily junk it completely (just as today's conservative judges have not been able to completely reverse all the liberal precedents of the Warren and Burger eras).
4.10.2007 4:04pm
eforhan (mail):
Respectfully, as one of the unwashed masses of the non-attorney-but-still-concerned, could you please explain to me how we should believe this theory only a week or so after SCOTUS declared carbon dioxide a pollutant from a liberal-friendly case that had no standing to begin with?
4.10.2007 4:07pm
Ilya Somin:
don't really buy that comparison... The Court in the 60's and 70's upheld new statutes that were supported by a century-old amendment.

Whether or not the current Court would uphold new statutes based on a new amendment isn't the same situation.


The Civil Rights Act of 1964 was enacted under the Commerce Clause, not under the 14th Amendment. Given the broad modern interpretation of the CC, it is unlikely that there is any significant legislation that the Congress could pass under the ERA that it lacks the power to pass without it. The principal impact of the ERA would be a consequence of is "self-enforcing" element (the ban on gender classifications), not the power it grants to Congress.
4.10.2007 4:07pm
Ilya Somin:
Respectfully, as one of the unwashed masses of the non-attorney-but-still-concerned, could you please explain to me how we should believe this theory only a week or so after SCOTUS declared carbon dioxide a pollutant from a liberal-friendly case that had no standing to begin with?

You can always find individual liberal decisions. But the overall trend of the judiciary over the last 25 years has been in a conservative direction. In the EPA case, Justice Kennedy was the conservative justice who "defected" to the liberal side. On affirmative action (the relevant issue for the ERA), Kennedy has been fairly consistently conservative, including writing a strong dissent in Grutter.
4.10.2007 4:10pm
Houston Lawyer:
I just don't buy the argument that the judges have gotten more conservative. The courts may not be inventing as many rights as they used to, but damn few liberal precedents have actually been overturned. Conservatives shouldn't rely on the Supreme Court to enforce anything other than liberal orthodoxy. The less discretion they have, the better.
4.10.2007 4:22pm
Richard Riley (mail):
Prof Somin, plainly you're right about the relative conservatism and textualism of today's judiciary. (Anybody with doubts should read a few old J. Skelly Wright decisions from the 60s and 70s, which were liberal but quite mainstream in their day.)

So why, in your view, do so many Federalist Society types go on loudly about liberal judicial activism as though the median federal judge today was Stephen Reinhardt rather than, say, J. Harvie Wilkinson? This doesn't come just from conservatives with an interest in stirring up controversy and (potentially) contributions to their nonprofits, ratings for their broadcasts, etc. Many smart conservatives seem honestly to believe it. It's a puzzle.
4.10.2007 4:23pm
Steve:
The reason why the judiciary didn't interpret the Civil Rights Act of 1964 to ban affirmative action is that nobody thought the law was being passed to ban affirmative action in the first place. There's a reason why affirmative action supporters like MLK wanted to see the bill passed. I suppose it was non-textualist to enforce the common understanding of the law, but it wasn't simply a case of a bunch of liberal judges enforcing their personal policy preference.

I doubt the consensus on this point will be as strong with regard to the ERA. Regardless, if I were looking to start a liberal counter-revolution in the courts, I can conceive of no greater favor than for a conservative judiciary to suddenly start using the ERA as a basis to strike down Title IX funding, unisex bathrooms, and the like.

People have differing opinions on the specific policy topics at issue, but everybody knows that if the ERA gets passed, the purpose isn't to restrict women's rights. As a liberal, I'd welcome passage of the ERA, and I'd welcome conservative judges being as extreme as possible in applying it. Nothing could do more to marginalize textualism in the public mind.
4.10.2007 4:23pm
Richard Riley (mail):
... and as an example of a smart (based on his comments here at the VC) conservative with the implausible view of today's judiciary that I'm asking about, see Houston Lawyer's comment immediately above.

And maybe that's the answer: just leaving the old liberal precedents alone isn't enough; they need to be eliminated. Trust me, Houston Lawyer, I'm not necessarily disagreeing with you - I favor judicial conservatism myself. (I want to leave the liberal social policy to the legislatures!) It's just hard for me to call today's judiciary anything but conservative. I mean, Rehnquist wrote the opinion upholding Miranda. How in the real world will there ever be a more reliably conservative judge than Rehnquist?
4.10.2007 4:31pm
FantasiaWHT:


The Civil Rights Act of 1964 was enacted under the Commerce Clause, not under the 14th Amendment.


You are correct, of course, thank you for correcting that but I think that actually further proves my point about the irrelevance of the makeup of the Court at the time an amendment is passed; how has the jurisprudence of the Court concerning the commerce clause changed in the more than two centuries since it was ratified?

More importantly, look at how the original federal civil rights statutes (against private discrimination) were declared unconstitutional and then decades later declared constitutional by a more liberal court using a different portion of the constitution
4.10.2007 4:37pm
Jake (Guest):
Moreover, even if it did happen, by that time the conservative interpretation of the ERA would be to some extent institutionalized and future liberal judges could not easily junk it completely (just as today's conservative judges have not been able to completely reverse all the liberal precedents of the Warren and Burger eras).

I'm going to have to object to this comment as assuming facts not in evidence. Suppose the ERA passes, is interpreted in a conservative fashion, and then a neo-Warren Court comes into being thirty years later. Would any of those ERA cases be as well entrenched as the various laws that were overturned in the 60s and 70s?

To answer Richard Riley's question, I believe the source of the anxiety felt is the heads-I-win-tails-you-lose nature of the game. Liberal courts mean new liberal precedents, while conservative courts mean only a temporary reprieve from new liberal precedents (at best!). Until we get a conservative West Coast Hotel, the anxiety is likely to continue.
4.10.2007 4:54pm
Daniel950 (mail):

There's a reason why affirmative action supporters like MLK wanted to see the bill passed.


MLK - judge a person by the content of his character not the color of his skin - was an affirmative action supporter? Yeah, sure.


Liberal courts mean new liberal precedents, while conservative courts mean only a temporary reprieve from new liberal precedents (at best!). Until we get a conservative West Coast Hotel, the anxiety is likely to continue.


Put not your faith in men. The Court is liberal, end of story. The challenge is not to hope for yet-another Savior of the Court, yet-another conservative Justice. The challenge is to end legislation-by-Judges for once and for all. The problem is entirely structural.

Let's be frank: We're considering whether a Constitutional Amendment would have ANY meaning at all here. A Constitutional Amendment. If a Constitutional Amendment banning sex discrimination cannot realistically be said to ban sex discrimination, because the JUDGES will just use it to enact liberal policies while not using it to end sex discrimination against men, for example, then the Constitution as a whole has ceased to have any function (at least as a written document).

This is a big, big problem.
4.10.2007 6:02pm
BobNSF (mail):
If one is a "textualist" and frowns on how the courts have largely enshrined the legal equality of women through overly broad interpretation of the 14th amendment -- which had nothing to do with women's rights -- then shouldn't one support the ERA because it directly and clearly makes women equal citizens???

(Unless, of course, one doesn't want women to be equal citizens)
4.10.2007 6:09pm
Ilya Somin:
To answer Richard Riley's question, I believe the source of the anxiety felt is the heads-I-win-tails-you-lose nature of the game. Liberal courts mean new liberal precedents, while conservative courts mean only a temporary reprieve from new liberal precedents (at best!).

This argument ignores the possibility that conservatives (and libertarians) can sometimes win victories in Court that they wouldn't have gotten in the political process (which, BTW, doesn't necessarily make them illegitimate). And that is exactly what has happened on a number of legal issues over the last 25 years, including affirmative action in contracting (Adarand, Croson), property rights (e.g. - Lucas), standing (Lujan), federalism (a number of cases, but particularly on the 11th Amendment); religious free exercise (several cases, including Good News Club). I could list other issues as well, but it is simply not true that only liberal causes benefit from judicial review.
4.10.2007 6:17pm
Zeus:
Conservatives have a knack for appointing judges who turn out liberal, e.g., Souter, O'Connor. However, it almost NEVER happens that Liberals appoint right-wing judges. Even though most federal appeals court judges were appointed by Republicans, it doesn't mean they're conservative.
4.10.2007 6:38pm
Steve:
MLK - judge a person by the content of his character not the color of his skin - was an affirmative action supporter? Yeah, sure.

I literally laughed out loud when I read this comment. I forgot there are people out there who actually buy into the conservative reinvention of MLK as an advocate for colorblindness. Here's a selection of quotes for your consideration:

In 1961, after visiting India, King praised that nation's "preferential" policies that had been put in place to provide opportunity to those at the bottom of the caste system, and in a 1963 article in Newsweek, published the very month of the "I Have a Dream" speech, King actually suggested it might be necessary to have something akin to "discrimination in reverse" as a form of national "atonement" for the legacy of slavery and Jim Crow segregation. The most direct articulation of his views on the subject is found in his 1963 classic "Why We Can't Wait," in which King noted:

Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree, but he should ask for nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man enters the starting line of a race three hundred years after another man, the first would have to perform some incredible feat in order to catch up.


In his 1967 volume, "Where Do We Go From Here? Chaos or Community?," King was even more explicit when he said "A society that has done something special against the Negro for hundreds of years must now do something special for him, in order to equip him to compete on a just and equal basis."

In a 1965 Playboy interview, King spelled out what "something special" might entail, and it was far more substantive than affirmative action. In fact, King stated his support for an aid package for black America in the amount of $50 billion. As King explained:

... for two centuries the Negro was enslaved and robbed of any wages — potential accrued wealth which would have been the legacy of his descendants. All of America's wealth today could not adequately compensate its Negroes for his centuries of exploitation and humiliation.
4.10.2007 6:46pm
Clayton E. Cramer (mail) (www):

So why, in your view, do so many Federalist Society types go on loudly about liberal judicial activism as though the median federal judge today was Stephen Reinhardt rather than, say, J. Harvie Wilkinson? This doesn't come just from conservatives with an interest in stirring up controversy and (potentially) contributions to their nonprofits, ratings for their broadcasts, etc. Many smart conservatives seem honestly to believe it. It's a puzzle.
Hmmm. Why would that be? Romer v. Evans (1994). Lawrence v. Texas (2003). McConnell v. Federal Elections Commission (2003). Ashcroft v. Free Speech Coalition (2001). Massachusetts v. EPA (2007). Why do conservatives see liberals as dominating the court system? It must just be their imagination.
4.10.2007 7:07pm
Daniel950 (mail):
Steve:

I literally laughed out loud when I read this comment.


So you find the idea that people should be judged by the content of their character, as opposed to skin color, amusing?

I don't think your quotes mean what you think they mean. I think that it's easy to read what you cited as King advocating policies for disadvantaged people generally, even if the majority of those disadvantaged people are black. Apart from the out-of context quote referring to "discrimination in reverse," I don't see any support for him disavowing the most memorable line in his most famous public address. And even if he did, it wouldn't be right or prudent.

Ilya Somin: "it is simply not true that only liberal causes benefit from judicial review."

That's technically correct, but it seems that a handful of cases only proves the general "heads I win, tails you lose" argument of conservatives. Moreover, those cases may be exceptions to a general liberal trend (Adarand seems to pale in comparison to the weight of the Court's jurisprudence affirming racial discrimination against whites). THerefore, simply because a conservative case is handed down occasionally doesn't seem to provide a distrustful conservative with enough justification to trust the court, especially when considering whether to provide another weapon to that court in the form of the ERA.

Facing a possible Constitutional Amendment, we're told to simply TRUST THE JUDGES. However, as Zeus has noted, conservatives don't even trust their own judges any more. And that means, basically, that they don't trust the judicial system. Of course, there exists also the liberal side of the country, which proudly and explicitly wants its judges to enact liberal policies, the constitution be darned. It seems that the prudent thing would be to argue for the defeat of the ERA, in the hope that it wouldn't provide an overwhelmingly liberal court (notwithstanding Republican appointees) with yet another weapon to enact liberal policies.
4.10.2007 7:10pm
Steve:
So you find the idea that people should be judged by the content of their character, as opposed to skin color, amusing?

No, I find it amusing that you've swallowed a conservative trope hook, line, and sinker. You're boiling a man's entire body of work down to one sentence and you're shocked that the interpretation you attached to that sentence isn't the same one the man himself would have applied.

Just google MLK and colorblindness for lots more along the lines of what I quoted above. There's little doubt that MLK aspired to achieve a colorblind society someday; there's also little doubt that he believed affirmative action was required for us to ever get there. "For it is obvious that if a man enters the starting line of a race three hundred years after another man, the first would have to perform some incredible feat in order to catch up."

Once you accept that MLK's worldview was about more than just that one sentence, you'll see what I mean.
4.10.2007 7:26pm
Daniel950 (mail):

No, I find it amusing that you've swallowed a conservative trope hook, line, and sinker.


I don't think it's fair to call the plain reading of King's speech "trope."

Even still, it's clear that King and supporters of affirmative action differ greatly. Even if King supported it (wrongly) as a means to a colorblind society, today's advocates of affirmative action support it as a means of perpetuating racial distinctions.
4.10.2007 7:56pm
logicnazi (mail) (www):
People believe this stuff about activist judges because they see the law through the lens of what they find reasonable. The problem is that the way we interpret other people's speech is usually by assuming they said something reasonable and working out from there what they meant. The constitution is written in broad sweeping language that is 200 years out of date. Even apparently straightforward passages often are not when understood in historical context.

However, people like Daniel950 (and his liberal counterparts) read the constitution without extensive knowledge of colonial attitudes and expectations so they arrive at what is 'obviously' what the constitution means by figuring out what someone could have 'reasonably' meant by those words. The only problem is that what they take to be reasonable is heavily infected with their own political and moral beliefs that usually have nothing at all to do with those of the framers.
4.10.2007 8:13pm
Daniel950 (mail):

However, people like Daniel950 (and his liberal counterparts) read the constitution without extensive knowledge of colonial attitudes and expectations...


You mean like colonial attitides of religion in public life? That several states had capital-E Established religions AFTER the Constitution was ratified? That abortion was outlawed for decades before modern times? That every single arrest before Miranda was handed down didn't require the citation of some "right to remain silent" speech? That marriage was universally understood to be a union of a man and a woman and that the equal protection clause of 14th Amendment didn't change that at all?


The only problem is that what they take to be reasonable is heavily infected with their own political and moral beliefs that usually have nothing at all to do with those of the framers.


Let's assume that I'm entirely wrong and you're entirely right, and that everything I think about the Constitution is completeley inaccurate, wrong, etc. What makes you think that the mass of conservatives who think that the judiciary is assaulting the Constitution, twisting the meaning of it, are going to take that kind of assault forever? Do you think that conservative complaints about the illegitimacy of Roe, of judicial decisions regarding racial discrimination against whites and sexual discrimination against men, and the judicial imposition of homosexual "marriage" - do you think those complaints are going to just DIE OUT?
4.10.2007 8:24pm
Dilan Esper (mail) (www):
I don't want to comment on Martin Luther King, but the claim that the Civil Rights Act permits some affirmative action seems to me to be beyond doubt. Of course, it may permit less of it than some supporters claim-- but where there is a clear case of discrimination in violation of the statute, a hiring preference is clearly one type of remedy. To put it bluntly, if a hotel with 250 employees refused to hire any blacks, and was found to discriminate, that hotel could very possibly be ordered to hire a certain number of blacks as a remedy, and this wouldn't violate the Civil Rights Act.

I think the more pertinent comparison with the ERA is the 14th Amendment, which certainly has been interpreted to prohibit most (but not all) race-based affirmative action.
4.10.2007 8:35pm
Steve:
Do you think that conservative complaints about the illegitimacy of Roe, of judicial decisions regarding racial discrimination against whites and sexual discrimination against men, and the judicial imposition of homosexual "marriage" - do you think those complaints are going to just DIE OUT?

Well, it depends on whether we succeed in taking your guns away.
4.10.2007 9:00pm
FantasiaWHT:

If one is a "textualist" and frowns on how the courts have largely enshrined the legal equality of women through overly broad interpretation of the 14th amendment -- which had nothing to do with women's rights -- then shouldn't one support the ERA because it directly and clearly makes women equal citizens???


Whether one is a textualist when interpreting the constitution has nothing to do with how one feels about what should or should not be included within it.
4.10.2007 9:44pm
loki13 (mail):
quote of the day:
Well, it depends on whether we succeed in taking your guns away

man, that's RAZOR sharp!

The one thing I have learned (if anything) in the law is not to be too sure of your opinions. Judicial activism is code for decisions you don't like. The Constitution is tough. The balance of texturalism and stare decisis is tough. Simple things (what rights do we have under the 9th Amendment) are unknown. Things that seem self-explanatory (BofR incorporated by PorI clause of the 14th) become complicated (PorI dies in Slaughterhouse &Cruikshank and is replaced by substantive due process and partial incorporation).

Conservatives whine about the Warren Court.
Liberals will see you the Warren court, and raise ya the Lochner Court.

Give me 9 principled jurists with differing philosophies, and I'm happy. When I see someone complain about 'judicial activism' (or whine, more correctly), I'm usually seeing someone who hasn't really studied the issues. It's possible to disagree with decisions, to even believe they were incorrectly decided, but still understand the rationale for the decisions.

I don't agrre with Roberts on the issue of standing in Mass v. EPA. I think strict standing rules are judge-created* in order to help conservative positions &corporations at the expense of NGOs. But I believe that he made his decision in good-faith.

*Yes, causes and controversies--- Mass certainly had one!
4.10.2007 10:09pm
SimonD (www):
Richard Riley:
So why ... do so many Federalist Society types go on loudly about liberal judicial activism as though the median federal judge today was Stephen Reinhardt rather than, say, J. Harvie Wilkinson? This doesn't come just from conservatives with an interest in stirring up controversy and (potentially) contributions to their nonprofits, ratings for their broadcasts, etc. Many smart conservatives seem honestly to believe it. It's a puzzle.
One bad apple spoils a barrel-full of good ones. On March 5, 2005, the Supreme Court handed down two decisions; one was Roper v. Simmons - without looking, what was the other? Here's a hint: it was an all-but unanimous decision construing the Indian Self-determination and Education Assistance Act. Which case provoked more commentary, and which animates people to talk about it? It may well be true that in many, many cases which don't attract media attention, industrious conservative judges are deciding cases correctly, but it's no wonder that when the big, high-profile cases are Stenberg, Atkins, Grutter, Lawrence, Roper, Massachusetts v. EPA, Carhart and so on, that the idea flourishes that liberals are carrying the day.

I don't entirely agree with Loki13, either, unless his point is merely that as the term "judicial activism" is used by political partisans, it usually means "a decision I don't like" - but I don't agree that the term itself has no meaning just because it is often used poorly (still less because some commentators - Lori Ringhand and Getirtz &Goldner spring to mind - have tried to broaden the meaning of the term into oblivion).
4.10.2007 10:41pm
loki13 (mail):
SimonD,

I believe that 'judicial activism' is *almost* always a canard. I cannot remember the last time I saw it employed that I think it was an accurate assessment of a decision by people who had *read* the case and understood the history behind the decision.

Can there be judicial acitivism? Perhaps? Was Traynor (among others) attempt to institute strict liability as a regime judicial activism? Or was it a shifting of common law? Was Lochner judicial activism? Or was it simply an incorrect placement of a right (freedom of K) into the realm of strict scrutiny? These are philosophical questions... I can come up with cases of judicial activism (my pet peeves are the slaughterhouse/cruikshank duo reading out PorI from the 14th almost right after the 14th was passed), but I think it is a generic sledgehammer term at this point to slander opinions partisans of both sides disagree with.

The law changes. Interpretations of the law changes. Even our understanding of the history that surrounded the Constitution (for texturlists) changes. If 9 people, all smarter than me and more well-versed in the law, can disagree, then maybe I have more to learn.... instead of just plugging my ears and saying they're 'legislating from the bench.'
4.10.2007 11:14pm
eforhan (mail):
Offtopic, but courtzero.org is an attorney-run site fighting judicial activism.
4.10.2007 11:20pm
Daniel950:

If 9 people, all smarter than me and more well-versed in the law, can disagree, then maybe I have more to learn.... instead of just plugging my ears and saying they're 'legislating from the bench.'


So tell me, if the ERA were passed, would discrimination against men be outlawed? Or would it only protect women? Oh, I forgot, it's not called the ERA anymore - it's called the Woman's Rights Amendment. They even managed to kill the idea of equality in the name, so that when future liberal justices look back on it, they can justify future discrimination against men.
4.10.2007 11:20pm
Thomas Alan (mail):
That's pretty convenient.
4.10.2007 11:26pm
whit:
daniel, excellent point ! you beat me to it. :)

the name of the amendment is like a laser guided view into the intent of the people behind this. it's NOT about equal rights. they can't even call it that. it's about WOMEN's rights, the implicit assumption being that only women are discriminated against - the whole victim class and oppressor class mindset.
4.11.2007 12:13am
Jake (Guest):
I pulled out the wrong phrase earlier--I usually apply the "heads I win tails you lose" description to judicial nominations. For landmark opinions, the more apt phrase is "what's mine is mine and what's yours is negotiable".

Right now we have a Supreme Court that is by all historical measures quite conservative, and any sort of "conservative Warren" moves remain unthinkable. Does anybody think this Court will find a constitutional right to school vouchers? Or that the second amendment mandates shall-issue concealed carry permit systems? It's hard for me to come up with other examples because trying to come up with a conservative Miranda is such a strange exercise.

Even the Lochner court was only preserving the status quo, rather than trying to actively move policy rightward.

When one side of a debate is on the wrong end of a one-way ratchet, it's no surprise they get a bit tetchy about the possibility of future ratcheting.
4.11.2007 12:19am
Lior:
Jake,

As you point out, a conservative Court tends not manufacture constitutional rights, even to "school vouchers" or "shall-issue concealed carry permits". However, with Roberts and Alito who seem very "republican" as opposed to "conservative", anything is possible.

A better question would be whether this (or any future) Court will overturn Wickard v. Filburn.
4.11.2007 1:31am
John Jenkins (mail):
Loki,

Off the top of my head, I can think of two utterly lawless decisions that could properly be considered activism: Miranda and Griswold. Both decisions simply made up new "rights". My Crim Pro professor (who clerked for justice Stevens) called Miranda the most lawless Supreme Court decision, and Griswold is not far behind. None of that speaks to whether those cases enuciated good *policy* but they were certainly not enuncuations of what the law was, or even reasonable extensions of then-current law. They were wholesale changes (seriously, a Fifth Amendment right to counsel? Why do that sort of mental gymnastics?). You pointed another one out yourself: the Slaughterhouse Cases. Judicial activism is a cognizable thing, despite attempts to use the term to score political points.
4.11.2007 2:45am
Ship Erect (mail) (www):
Where is anyone getting the idea that it's called the "Women's Rights Amendment"? It's called the Women's Equality Amendment. whit, I hope your 'laser guided view' was not trained on Osama bin Laden, since you definitely missed your target.

it's NOT about equal rights.

Ah yes, 'special' rights and all that. Have you considered that equal rights simply are inherently special?

it's about WOMEN's rights, the implicit assumption being that only women are discriminated against - the whole victim class and oppressor class mindset.

Are you saying that powerful women are oppressing men (in Themyscira, perhaps?), or that victims of oppression should not seek help from the government? Concerning the latter, isn't that a supposed reason we're in Iraq?
4.11.2007 5:42am
steve (mail):
Does anyone think that any Supreme Court, however politically constituted, would overturn Loving vs. Virginia?
4.11.2007 8:13am
FantasiaWHT:
Yes, because as we've been told time and time again, only majorities can be racist, so the same would hold for sexist, right? Oh, wait, there's more women than men.
4.11.2007 9:10am
JunkYardLawDog (mail):
One problem with your analysis is that you state as a fact that Bush I and Bush II are conservatives. Bush I was not a conservative, supported gun control and a "new world order" of globalist policies. He also appointed one of the most liberal members of the Supreme Court. An unethical squirrelly loner. He would have been more at home at the UN than at a middle class Texas republican's home. Bush I's successes came solely as a result of being lucky enough to follow on to what Reagan did. He inherited by default some good things. He did handle Gulf War I well, but what a different result might have obtained for history and peace if with 460,000 troops there in Iraq he had taken out Hussein then.

Bush II, while a bit more right than his daddy is also no traditional conservative. He supports big government, more welfare, and opposes sealing the border. Instead he supports amnesty and an open border. While he has appointed conservative judges he and the rest of the republican party did a really lousy and inattentive job at getting them confirmed.

Says the "Dog"
4.11.2007 11:26am
Alan K. Henderson (mail) (www):
Does anyone think that any Supreme Court, however politically constituted, would overturn Loving vs. Virginia?
The case's bone of contention, the Racial Integrity Act of 1924, allowed for many different types of racially mixed marriages - one nonwhite race with another, one white race with another - but no white/nonwhite marriages. Getting that past the 14th Amendment would be a neat trick.
4.11.2007 12:57pm
whit:
ship, you gotta be kidding me.

again, look at the title.

it is no longer the EQUAL RIGHTS AMENDMENT

the very title belies the bias. women are always victims of discrimination, men never so
4.11.2007 12:59pm
loki13 (mail):
Be careful what you wish for,

Many times, I am astounded by the people decrying the use of stare decisis to uphold decisions (Miranda et al) they don't agree with, and wishing we had more texturalist judges, and a restrained judiciary.

But texturalism is not just a conservative philosophy. There are liberal texturalists as well. They believe that the judiciary should stay out of they way of Congress, and that Congress should be able to regulate almost everything under N&P that they wish (except slavery, which is expressly prohibited). That the commerce clause is a red herring, and that Conservative justice have channeled Congress's powers into the commerce clause over succeding generations. There's a reason that no acts of Congress were declared unconstitutional between Marbury and Dred Scott, after all.

Is an activist judiciary one that expands rights (see the 9th Am.), or one that strikes down acts of Congress? I don't claim to know the answers to these questions (I don't know that anyone has *the* answer), but I think, again, it boils down to the following- if you like the decision, it's a correct interpretation. If you don't, it's activist judging.

What does this have to do with the proposed amendment? I find it interesting that people are against the idea of enshrining, within our Constitution, the idea that women are equal to men (instead of backdooring it via the 14th) because of a fear of decisions that may or may not come along down the road. As a man in American society, I don't feel disenfranchised. I don't see how this amendment will cause any disenfranchisement. As Prof. Somin has ably pointed out, it may have the opposite effect- things (like aff. action for women) that were once subject to intermediate scrutiny under the 14th would be subject to strict scrutiny under the propsed amendment.
4.11.2007 2:16pm
loki13 (mail):
I forgot to make this point-

For those conservatives worried about judicial activism, isn't the proposed amendment a good thing? It is my belief (hope?) that we have gotten to the point as a society where it is noa consensus that women have the same rights as men (or, more correctly, that white male property holder are not privileged above all). Is it not better to place that in writing in the Constitution than to leave that to judges to infer those rights via cramped readings of the 14th Am? There was a time when the Constitution was more open to revision to either poor judicial decisions (11th Am) and changes in society than it is now. Perhaps the reason there is this judicial overreach is that the body politic has gotten used to having the judiciary read in rights as society evolves because we're too darn lazy to get around to changing the Constitution to reflect the truth on the ground.

The judiciary wouldn't need to have a living Constitution if we did a better job keeping it up to date.
4.11.2007 2:48pm
Ship Erect (mail) (www):
again, look at the title.

it is no longer the EQUAL RIGHTS AMENDMENT


Right, I have looked at the title, while you evidently did not. You got it wrong even though you said the specific wording of the title gave a 'laser guided focus' on the intent of its supporters.

the very title belies the bias. women are always victims of discrimination, men never so

Please describe how you derived this from the three words "Women's Equality Amendment."
4.11.2007 6:20pm
Rich Rostrom (mail):
Of the seven SCotUS Justices who concurred in Griswold v. Connecticut_, three (Warren, Brennan, and Harlan) "were appointed by conservative Republican Presidents."

Of the seven SCotUS Justices who concurred in Roe v Wade, five (Blackmun, Burger, Brennan, Stewart, and Powell) "were appointed by conservative Republican Presidents."

Of the five SCotUS Justices who concurred in U.S. Term Limits Inc. v. Thornton, three (Stevens, Kennedy, and Souter) "were appointed by conservative Republican Presidents."

This history does not inspire confidence in jurists "appointed by conservative Republican Presidents."

In any case, surely what is wanted is "a government of laws, not of men"; we should not depend for freedom from oppression on the characters of office-holders.

Of the six SCotUS Justices who concurred in Lawrence v. Texas, four (O'Connor, Stevens, Kennedy, and Souter) "were appointed by conservative Republican Presidents."
4.12.2007 3:18pm