Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment

• Author: Julie C. Suk
• Position: Professor of Law, Fordham University School of Law, and Florence Rogatz Visiting Professor of Law, Yale Law School
• Pages: 1391-1436

Justice Ginsburg’s Cautious Legacy for the Equal

Rights Amendment

JULIE C. SUK*

History will remember the late Justice Ruth Bader Ginsburg (RBG) as

the “founding mother”of constitutional gender equality in the United

States. This Article unpacks her legacy for inclusive constitutional

change, unearthing her lifelong commitment to the Equal Rights

Amendment (ERA), which was adopted fifty years ago by Congress in

1972. It took nearly half a century for the Amendment to be ratified by

the thirty-eight states required by Article V, with Virginia becoming the

last state to ratify it in 2020—the year of Justice Ginsburg’s death.

Because the last three ratifications occurred decades after congression-

ally imposed time limits, RBG publicly expressed doubts about the viabil-

ity of the ERA, as it was being disputed in Congress and in the courts.

This Article unpacks RBG’s ambivalent stance toward the ERA, tracing

it to her understanding of the process of constitutional change toward

greater inclusion, located in her legal scholarship of the 1970s. As a

scholar, RBG focused not only on sex discrimination but also on legal

procedure. She was keenly aware that the procedural paths taken toward

important socio-legal changes, including women’s equal citizenship,

would shape their potential to endure as law. This Article puts the spot-

light on RBG’s often-neglected writings as a scholar before her judicial

career. RBG’s transformative vision of constitutional gender equality

had an institutional and procedural dimension that accompanied its am-

bitious substantive ideals. A modern constitutional democracy would

fully include women in the rights and responsibilities of citizenship and

power, by eliminating gender stereotypes from the law and by implement-

ing public policies to enable the participation of people of all genders.

Legislatures, rather than courts, are best equipped to complete this pro-

ject. To legitimize such large-scale constitutional change, RBG viewed

Congress as the appropriate institutional driver of the constitutional

* Professor of Law, Fordham University School of Law, and Florence Rogatz Visiting Professor of

Law, Yale Law School. ©2022, Julie C. Suk. Many thanks to law school audiences at events and panels

featuring my research on the Equal Rights Amendment’s legislative history and recent resurgence,

recounted in greater detail for a general audience in We the Women: The Unstoppable Mothers of the

Equal Rights Amendment. This Article grew out of reflections on the challenging questions raised at

those events, including at Harvard Law School’s Nineteenth Amendment and Equal Rights Amendment

event, Columbia Law School’s launch of the new Equal Rights Amendment Project, Boston College

Law School’s Constitution Day event, and the University of Virginia Law Review’s symposium titled

From the ERA to Black Lives Matter. Many thanks to Joseph Blocher, Pamela Bookman, David Pozen,

and Reva Siegel; the participants in the Yale Law School ACS Progressive Scholarship workshop for

critical comments and suggestions which have greatly improved the piece; and Varshini Parthasarathy

and A. Lulu Zhang for excellent research assistance.

1391

amendment process. Accordingly, Congress had plenary power over the

procedural incidents of constitutional amendments such as the ERA,

including ratification time limits and rescissions. RBG’s legislative con-

stitutionalism on both the substance and procedure of the ERA point to

cautiously viable paths forward for both the resurgent ERA and future

amendments aiming to secure the inclusion of previously disempowered

people in our democracy.

TABLE OF CONTENTS

INTRODUCTION..................................................... 1393

I. THE FALL AND RISE OF THE EQUAL RIGHTS AMENDMENT. . . . . . . . . . . . . 1396

II. THE UNFINISHED BUSINESS OF EQUAL PROTECTION.................. 1407

A. MOTHERHOODANDTHEERA............................... 1408

B. THE FRAMERS’ INSTITUTIONAL VISION FOR LEGISLATURES. . . . . . . . 1411

III. FURTHER LIMITS OF ADJUDICATING SOCIO-LEGAL CHANGE........... 1416

A. A SILENCE OF EQUAL PROTECTION LAW: SESSIONS V. MORALES-

SANTANA .............................................. 1416

B. RBG’S DIALOGUE WITH CONGRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1419

IV. CONGRESS’SLEGITIMIZING ROLE IN THE AMENDMENT PROCESS . . . . . . . . 1422

A. RBG ON THE 1978 ERA DEADLINE EXTENSION. . . . . . . . . . . . . . . . . . . 1422

B. “THE IDEA GENERATES FEARS”: THE CASE FOR MORE TIME. . . . . . . . 1424

V. THE SPECIAL PROCEDURAL CHALLENGES OF CONSTITUTIONAL INCLUSION 1428

A. THE DIFFICULTY OF AMENDMENT UNDER ARTICLE V. . . . . . . . . . . . . 1428

B. LESSONS FROM THE NINETEENTH AMENDMENT . . . . . . . . . . . . . . . . . 1429

VI. THE ERA’SVIABLE PATH FORWARD............................. 1433

CONCLUSION...................................................... 1435

1392 THE GEORGETOWN LAW JOURNAL [Vol. 110:1391

INTRODUCTION

History will remember the late Justice Ruth Bader Ginsburg (RBG) as America’s

“founding mother”of constitutional gender equality,

1

whoin2020diedan immortal

feminist and pop culture icon.

2

This Article unpacks RBG’s legacy for the future of

women’s constitutional rights.

The year 2022 marks the fiftieth anniversary of Congress’s adoption of the

Equal Rights Amendment (ERA), the Amendment that would have guaranteed

that equal rights could not be abridged on account of sex, an ideal RBG embraced

while litigating the sex discrimination cases that made her famous. In recent

years, however, she criticized recent efforts to revive the ERA ratification pro-

cess.

3

RBG’s seemingly ambivalent stance toward the ERA has deep roots in her

thinking as a legal scholar whose work focused not only on sex discrimination

but also on civil procedure. She had a heightened appreciation for the challenges

of establishing the procedural legitimacy of important socio-legal changes. A

constitutional transition toward a more inclusive democracy faced enormous pro-

cedural barriers, and thus necessitated exceptional paths whose legitimacy would

be questioned. Months after Justice Ginsburg’s death, her landmark sex equality

opinion in United States v. Virginia

4

reached its twenty-fifth anniversary while a

global pandemic eroded a generation of women’s progress toward equal partici-

pation in the workforce and the nation’s economy.

5

As efforts to add the ERA to

the Constitution continue in Congress and the courts,

6

RBG’s body of work as a

1. See ‘The Most Important Woman Lawyer in the History of the Republic:’ How Did Ruth Bader

Ginsburg Change America? More Than 20 Legal Thinkers Weigh In.,P

OLITICO (Sept. 18, 2020, 11:59

PM), https ://www.po litico.co m/news/ma gazine/2 020/09/18 /ruth-bad er-ginsb urg-legac y-418191

[https://perma.cc/LG6U-YPVD] (compiling opinions of twenty legal thinkers, including Kenji

Yoshino, who called her the “founding mother –or simply founder –of our nation’s sex equality

jurisprudence”). Throughout RBG’s career, the laws that adva nced women’s rights used the term

“sex,”such as the Nineteenth Amendment of the U.S. Constitution (guaranteeing thatthe right to

vote would not be abridged “on account of sex”), U.S. CONST.amend.XIX,TitleVIIoftheCivil

Rights Act of 1964 (prohibiting discrimination in employment “because of . . . sex”), 42 U.S.C.

§ 2000e-2(a)(1), and Title IX of the Education Amendments Act of 1972 ( prohibiting exclusion

from educational opportunities in federally funded institutions “on the basis of sex”), 20 U.S.C.

§ 1681(a). Justice Ginsburg explained decades later thatshe chose to use the term “gender”in lieu

of “sex”in her briefs, in part to deflect male audience attention away from the ordinary

associations with the word “sex.”See Columbia Law School Honors Justice Ginsburg, C-SPAN,

at 41:25–42:15 (Nov. 19, 1993), https://www.c-span.org/video/?53194-1/columbia-law-school-

honors-justice-ginsburg[https://perma.cc/S9D6-CLJ8].

2. See Linda Greenhouse, Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87, N.Y.

TIMES (Sept. 24, 2020), https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html.

3. See sources cited infra note 12.

4. 518 U.S. 515 (1996).

5. See generally Titan Alon, Sena Coskun, Matthias Doepke, David Koll & Michèle Tertilt, From

Mancession to Shecession: Women’s Employment in Regular and Pandemic Recessions (Nat’l Bureau

of Econ. Rsch., Working Paper No. 28632, 2021).

6. See 166 CONG.REC. H1140 (daily ed. Feb. 13, 2020) (statement of Rep. Scott) (discussing the

House floor vote on H.J. Res. 79, removing the deadline for the ratification of the ERA); Virginia v.

Ferriero, 525 F. Supp. 3d 36 (D.D.C. 2021) (hearing lawsuit by three states seeking declaratory

judgment that the ERA is part of the Constitution, with five intervening states seeking declaration that

ERA has expired). New resolutions have been introduced in the 117th Congress to remove the deadline

2022] JUSTICE GINSBURG’SCAUTIOUS LEGACY 1393