Justice Ruth Bader Ginsburg is probably the last person anyone would expect to stand in the way of final ratification of the Equal Rights Amendment.
No living woman is more closely associated with the decades-long push to enshrine gender equality into U.S. law than the 86-year-old jurist and feminist icon. But Ginsburg is no fan of the recent efforts to revive the ERA long after the expiration of a congressionally imposed deadline for adding it to the Constitution.
“I would like to see a new beginning. I’d like it to start over,” she told an interviewer on Monday at a Georgetown Law School event to commemorate the 100th anniversary of women’s suffrage. Ginsburg explained that there was “too much controversy” around the question of whether three-fourths of the states had actually ratified the ERA. Virginia this year became the 38th and seemingly final state needed, but along with Nevada and Illinois, it acted more than 30 years after the 1982 deadline for ratification. Further complicating matters? Five other states had previously passed resolutions to rescind their approval of the amendment.
“If you count a latecomer on the plus side, how can you disregard states that said we’ve changed our minds?” Ginsburg asked.
As ERA opponents have noted, Ginsburg had previously hinted at her position by saying in a speech last year that backers of the amendment should start “over again.”
But her comments this week left far less ambiguity, and they could not have come at a worse time for ERA advocates, who were poised to celebrate House passage on Thursday of a resolution formally removing the deadline Congress had originally put in place. Senate Republicans have already cited the justice’s view as validation of their intention not to act on the measure. By weighing in now, Ginsburg cast doubt on the entire pursuit of ERA ratification; the issue will likely be resolved by the courts, and without Ginsburg’s vote, defeat in the Supreme Court is all but certain.
Beyond that, however, Ginsburg’s remarks forced some of the country’s most prominent advocates for women’s rights into the decidedly awkward position of—ever so respectfully, of course—rebutting the Notorious R.B.G. on a matter of law.
Shortly after the House vote, I spoke with Linda Coberly, a veteran appellate lawyer in Chicago who heads the ERA Coalition’s legal task force. She called the timing of Ginsburg’s comment “unfortunate,” but she told me she wasn’t giving up on winning the justice’s vote. “There’s an answer to her question,” Coberly told me, “and if the case came before her, that answer would be provided, and I have every confidence that she would hear and consider those arguments.”
Our interview has been edited for length and clarity.
Russell Berman: What was your immediate reaction to Justice Ginsburg’s comments?
Linda Coberly: I wasn’t surprised to hear her express a preference for a new beginning, because she has said that before.
She was asked a political question, not a legal one, which is, “What is your prognosis for an Equal Rights Amendment?” And she expressed a preference for a new beginning because she fears there’s too much controversy right now in light of the time limit and what she refers to as the latecomers to ratification. And I have a lot of respect for that view, of the strategy and the political concern. But we [are] coming up on 50 years of effort behind ratification of this amendment, and with the House vote today, we are very close to resolving the issue. And I think it is worth seeing that process through.
Berman: Do you think her vote is gone on the Supreme Court? Or do you hold out hope that she would consider the legal arguments and potentially rule in your favor if one of these lawsuits makes it?
Coberly: I certainly hold out hope about that. She was expressing a view about politics and strategy, not about the legality of any position. In fact, she didn’t comment on the pending legislation. She didn’t comment on the pending lawsuit, and that’s exactly as it should be. I wouldn’t expect her to comment on a legal issue that is going to come before her.
There’s a reason why, in our system, judges don’t decide issues in the abstract. They decide issues after those issues are presented by counsel in an adversary proceeding. And on the merits of the legal issues, the arguments in favor of the Equal Rights Amendment at this time are very powerful. The time limit was in a joint resolution by Congress. Congress can change that time limit, and the House took a very important step in that direction this morning.
Berman: You’re characterizing her remarks in the political sense, but her suggestion that you can’t count the late-coming states without counting those that have rescinded their ratifications is at the heart of one of the legal arguments against this current effort.
Coberly: You’re right about that, and there’s an answer to her question. And if the case came in front of her, she would be presented with the answer. The answer is the reasons for counting what she referred to as the latecomers are entirely separate from the reasons for not taking into account a subsequent vote by a legislature purporting to rescind a ratification. They are really two completely different legal questions, and there’s no reason why they should be linked together.
So there’s an answer to her question, and if the case came before her, that answer would be provided, and I have every confidence that she would hear and consider those arguments.
Berman: Were you surprised or disappointed that she commented at all, given that this case very possibly will come before the court?
Coberly: I think it’s unfortunate, obviously, because this is a very exciting week for the Equal Rights Amendment. I think the timing of her comments on Monday was unfortunate.
The fact that she repeated them this week is unfortunate, because it has created a talking point for opponents of the ERA and it has raised questions that a lot of people have been focusing on. But the reality is, it’s not clear to me that the case would come before the court, and that’s because if the House vote leads to a vote in the Senate, where Congress decides that the time limit should be removed, that choice is probably not reviewable in court at all.
There’s a very strong argument under Supreme Court case law that a challenge to a deadline removal would not be justiciable, because it would be a political question that the courts should not resolve at all. And I have no reason to believe that the Supreme Court, no matter how it’s constituted, would change its existing precedent on that question.
Berman: Of all the people you might have thought would have stood in the way of this at the 11th hour, did you ever imagine it would be her?
Coberly: [Laughs.] It’s unfortunate for advocates to have disagreement in a public way about the strategy. That is unfortunate, and Justice Ginsburg is obviously an icon in so many ways, and specifically in respect to her work on sex equality, which has been so important both before and after her appointment to the bench. She is such an icon, and I think that’s why her comments are getting so much attention, because she has played such an important role in the movement. I just think that as in any movement, there can be disagreements, and reasonable disagreements, about political strategy, and I think that’s what this is.
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