Ruth Bader Ginsburg may have just killed the Equal Rights Amendment - Vox

I had the good fortune to be a student in Ruth Ginsburg's Civil Procedure class in 1970.  In what turned out to be her last semester at Rutgers-Newark she laid out her strategy - inspired by Thurgood Marshall and the NAACP LDEF.  She would step by step establish that gender distinctions in the law were inherently suspect.  She came close to accomplishing it as an Associate Justice writing for the Court in U.S. v. Virginia.  Her explanation that a gender distinction requires an "exceedingly persuasive justification" came very close to what an Equal rights Amendment would have accomplished.  In fact it prompted Antonin Scalia, in a particularly caustic dissent of the sort honed by his high school study of Cicero's orations, to declare that the court had invaded the legislative domain and outlawed same sex public education.  Ironically the "exceedingly persuasive" standard may have fueled the assault on affirmative action to repair the effects of the historic racial injustice for which the Supreme Court deserves much of the shame.


Millhiser is persuasive in his observation that the ERA stands no practical chance of passing it its current form.  Ratified by 38 states several have retracted it and its failure to meet the 1982 deadline leaves the ERA's demise an appropriate date to carve on Phyllis Schlafly's tombstone.

Ruth Bader Ginsburg may have just killed the Equal Rights Amendment - Vox

by Ian Millhiser

Justice Ruth Bader Ginsburg is the most important feminist lawyer in American history. Long before she became a judge, she convinced the Supreme Court to hold that gender discrimination can violate the Constitution. She spent many of the following years working to strengthen those protections for women.

Yet Ginsburg said on Monday that one of her life’s goals — writing a strong prohibition against gender discrimination into the Constitution — must be put on hold.

At an event at Georgetown University’s law school, moderator and federal appellate judge Margaret McKeown asked Ginsburg about an ongoing effort to revive the Equal Rights Amendment (ERA), which provides that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Three-fourths of the states, or 38 total, are required to amend the Constitution. Last month, Virginia became the 38th state to ratify the ERA and one of only three states to do so since 1977 — but there’s a catch. Congress imposed a 1982 deadline on states hoping to ratify the ERA, though there’s doubt about whether this deadline is binding.

Ginsburg’s comments on Monday suggest that she believes this 1982 deadline should be considered binding. “I would like to see a new beginning” for ERA ratification, the justice told McKeown.

“There’s too much controversy about latecomers,” Ginsburg added. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”

According to the Washington Post, five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — voted to ratify the ERA but later rescinded that ratification.

Ginsburg’s comments are likely to be the death knell for the ERA. Without Ginsburg’s vote, it’s tough to imagine that five members of the Supreme Court would agree the ERA was properly ratified. And while Congress could, in theory, start the ratification process over again, it’s also hard to imagine two-thirds of the House and Senate agreeing to do so in an age when Congress often struggles to perform basic functions like funding the government.

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