Strict Scrutiny - The Ghost of Phyllis Schlafly

Episode Date: March 2, 2020

Kate and Melissa join forces with Lauren Moxley, creator of The Ginsburg Tapes, for an exploration of the Equal Rights Amendment. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. I'm one of your hosts, Kate Shaw. And I'm Melissa Murray.

And we are here today with a special crossover episode featuring guest Lauren Moxley, who's the host and creator of the podcast, The Ginsburg Tapes. Hey, Lauren. Welcome to Strict Scrutiny. Thank you, Kate. Excited to talk all things Equal Rights Amendment today. A lot of our listeners will probably know the Ginsburg tapes, but for those who don't, it's a limited edition podcast in which Lauren takes the audio of Ruth Bader Ginsburg's Supreme Court arguments, and actually in one instance, an important case she worked on but didn't actually argue, and uses that audio to anchor a discussion of Ginsburg's litigation strategy, which was essentially to dismantle formal legal inequality in the United States.

So the podcast features these very long excerpts from the arguments. Listeners to our podcast will know that Supreme Court argument audio is available online. So we play little clips, but Lauren plays these very— We also use some of it in our intro music, which is really kind of kooky too. Which also intersects with Lauren's project. So yeah, so we'll talk about that. But she uses these very long excerpts and then kind of pauses and intersperses the audio with her own commentary on the cases, on the advocacy, on the justices, often including these wonderful insights gleaned from deep dives into the justices' papers. And one thing that comes up a lot in all the episodes is the Equal Rights Amendment or the ERA. So this had actually passed in Congress and was pending before the states for ratification while Ginsburg's cases were being litigated in the federal courts. We had been wanting to do a deep dive on the ERA here on Strict Scrutiny anyway.

So we thought that this would actually be a great vehicle for a crossover episode. So, Lauren, thank you again for being here. And before we turn to the ERA, can you tell us a little bit about the origins and sort of the goals of your podcast project, The Ginsburg Tapes? Yeah, absolutely. So I am a lawyer. I'm a litigator here in D.C. And I learned that Supreme Court oral arguments dating back to 1955 are available on the OIA's website. And so I started listening to these tapes in my free time, and I found them to be incredibly moving pieces of history. I was particularly struck by the tapes of Ruth Bader Ginsburg's oral arguments back from when she was an advocate. And you get to hear Ginsburg then in her 30s and 40s make her case to an all-male Supreme Court that sex equality

deserves a home in the U.S. Constitution. And there is just so much RBG love out there for everyone's favorite gangsta feminist grandmother, and I thought that there had to be some subset of her fan base that would want to learn and listen to these tapes with me so we could learn more about Ginsburg, about advocacy, about constitutional law in the Supreme Court. And one of my major goals with the podcast was that it wouldn't be just another piece of hagiography, but a real history project where we could look back. And as I reach the end of the podcast, the final episode is dropping next week. I've used this occasion to reflect on the important ways that her movement succeeded

and the ways that it fell short. Okay, so we're obviously going to go deeper on all of that. And as we said, we're going to turn squarely to the Equal Rights Amendment a little bit later in the episode. So let's actually start by laying a bit of groundwork. Our readers may not know if you're not a regular reader of the Constitution, and there really is no reason why you should be. Well, we law professors have to read it from time to time. We have to read it. Our law students have to read it. But most people have never read the Constitution. And many people are actually quite surprised to find that the original Constitution framed in 1787 actually doesn't contain any mention of women anywhere, right? And the next major moment for the Constitution really comes after the Civil War when the Reconstruction Amendments, the 13th, 14th, and 15th Amendments, are passed to abolish slavery, guarantee the rights of citizenship, and then provide for the franchise for African-American men.

Those amendments don't say anything about women either, although the question of women's rights is certainly in the social and political milieu at that time. Prior to the Civil War, first wave feminists were making the argument that women had to be included as part of the body politic and that any effort to promote abolition should also be thinking about women's rights as well. And they are roundly disappointed with the Reconstruction Amendments, which seek to secure the rights of newly freed African-American men, but don't say anything specifically about women. And so they begin a very protracted campaign to gain women's rights. And that ultimately culminates in 1920 with the ratification of the 19th Amendment, which for the first time actually gets women into the Constitution by

allowing them the right to vote. And Reva Siegel at Yale has argued for many years that the 19th Amendment, when it was first sort of imagined, was actually meant to be more broadly encompassing than just the franchise, that it actually was meant to, as she says, democratize the family by thinking about all of the ways in which women's citizenship had been subordinated to men. And the franchise was part of that. But the idea behind the franchise was that when women voted, they could also then subsequently change these other things. So the idea was that the 19th Amendment would actually be much more broad than just the vote. It turned out, of course, that it wasn't as broad as the vote. In fact,

it wasn't even as broad as the vote because it wasn't ever really enforced. And so lots of women, despite the fact of the 19th Amendment, didn't enjoy the opportunity to vote. And this is particularly women of color. And so we have this really odd moment where there's one amendment in the Constitution as of 1920 that speaks to women, but women are still very much a part of this longstanding legal framework in which their rights and their identities as legal subjects are actually subordinate to those of men, and in particular, their husbands and fathers. And the Supreme Court is actually part and parcel of this project. The Supreme Court, in a number of cases, re-enshrined this idea of women's equal citizenship, but not quite as equal as everyone else. And so in a lot of different cases, Gossert versus Cleary, Radice versus New

York, Bradwell versus the state, the Supreme Court over and over again enshrines this idea that women can be protected by law, that they are passive, that their role as mothers and the progenitors of the next generation mean that law can take steps to actually keep them out of the body politic. And this endures for some time until a young woman named Ruth Bader Ginsburg comes along and decides that she's had enough. Okay, so before we get to Ruth Bader Ginsburg, Lauren, do you want to add anything in terms of this sort of overview, the early kind of absence of women and sex as a concept from the Constitution? Sure. I mean, I think one notable thing here is that you might chalk up the fact that there were no women at the Constitutional Convention to the time and say, oh, this is the 1700s. This is the founding, not exactly the wokest time in American history. But contemporaries of the founders also found women's absence from the Constitutional Convention to be objectionable.

We all remember Abigail Adams, remember the ladies letter back from when we learned about it in grade school. But that letter was actually a lot more threatening than is often remembered. She said, we are determined to foment a rebellion and will not hold ourselves bound by laws in which we have no voice or representation. It is amazing. That one line is such a sanitized version of this pretty radical document, actually. Exactly. Yeah. Does she make good on this, though? Abigail talked a good game. What happened when John came back home to Branson? Not much, not much. Another example of contemporaries of the founders who found it objectionable that women were not at the Constitution

is the Iroquois Confederacy. Gloria Steinem loves to tell the story about how advisors from the Iroquois came to visit Philadelphia. And their first question was, you know, where are the women? This leads up to the founding. We see the lack of a commitment to sex equality in the Reconstruction Amendments. There is this initial moment in 1920 where it seems like women are going to be introduced into the body politic. It fails to a certain degree with the 19th Amendment through a lack of enforcement and sort of a broader vision for sex equality. So how is it then, Lauren, that Ruth Bader Ginsburg comes to find a home for women in the Constitution itself? So about 10 years before Ginsburg came on the scene and about 100 years following the 19th amendment, a visionary lawyer and thinker named Polly Murray came up with the idea to actually locate a

guarantee to sex equality in the 14th amendment. So the 14th amendment was enacted in the wake of the Civil War and its central purpose was to eliminate invidious racial discrimination. But Polly Murray co-authored this article called Jane Crow in the Law. And she envisioned this strategy that there could be a guarantee to sex equality in the 14th Amendment. So can we talk a little bit about Polly Murray for just a minute? So she's probably, I think the New Yorker did an amazing profile of her a few years back where they called her the civil rights leader you've never heard of, like the most important civil rights leader you've never heard of. And she's actually this amazing African-American woman.

She's a graduate of Howard Law School. She then goes on to get an LLM at the University of California, Berkeley, before then going to Yale Law School to get her JSD. I think she's the first African-American woman to work at Paul Weiss, the notable New York law firm. And she's also the first African American woman to become an ordained Episcopalian priest. And Thurgood Marshall even notes that she really is the architect of this idea of sort of incrementally chipping away at these laws that prevent sex equality. And she relies largely on this strategy that Thurgood Marshall himself used to eliminate racial discrimination, to sort of incrementally chip away at it. And this is all chronicled in a terrific book called Reasoning from Race by Serena Mayeri, who is a legal historian

at the University of Pennsylvania. And she really chronicles this whole journey that Polly Murray takes and notes that probably if not for her race and her sexuality, Polly Murray is sort of bicurious at this point or what we might call bicurious. But she's sort of waffling between heterosexuality and being gay. of shut out from mainstream legal culture because both her sex as a woman, her race as an African-American, and then her sexual orientation, which for some people is sort of fuzzy at this point. And she doesn't really get her due at this moment. But her ideas are so exciting that Ruth Bader Ginsburg, who comes upon them, is actually energized by them and sees a way forward using these ideas. Yeah, I think that's exactly right.

Pauli Murray should be and often is given to her due credit for coming up with a strategy and for just being so ahead of her time on so many of these issues. And so Ginsburg often gives a hat tip to Pauli Murray, for example, in the Read vs. Read brief, which is the first brief that the ACLU Women's Rights Project filed in the Supreme Court. They listed Pauline Murray as an author, along with Dorothy Kenyon and Alan Durr, just to acknowledge how important they were to getting to that moment. Yeah, no, I think it's right that she is acknowledged by insiders in these movements as this kind of intellectual godmother of this sort of legal strategy. But I also think the New Yorker's headline accurately captures her erasure from history largely. This conversation is making me think that we should try to dig up Murray Audio if we can find some.

Because even if folks haven't read her work or Mayra's book – She has a terrific autobiography, Songs in a Weary Throat. Oh, really? That's available. Okay. So I should also read that. But taking the opportunity to sing as loudly as we can. Like Murray needs more recognition than she has been given.

But I do think to Ruth Bader Ginsburg's credit, she did not simply take and run with Murray's ideas. She fully did profoundly credit her. And yet history I don't think has quite given her her due. Yeah, I think that's right. Well, I'm certainly here for the Polly Murray audio, if we find some. The Polly Murray tapes, let's get them. Let's do it. Next. Yeah, so in the 1970s, Ginsburg and the ACLU Women's Rights Project set out to put Murray's strategy into action. And they started challenging laws that discriminated on the basis of sex as unconstitutional under the 14th Amendment. Do you want to walk through some of the cases that

you catalog in the podcast? Yes, I'd be happy to. So I'll go through three cases rapid fire. So case one, we have Frontiero versus Richardson. In that case, a military servicewoman and her husband challenged a law that automatically entitled military wives to certain dependence benefits, but made the husbands of female military service members prove that they were dependent on their wives for over half of their support. And so Ginsburg showed how the assumption that wives were economically dependent, but husbands were not, served to perpetuate these deeply embedded notions about a woman's proper place. And they won that case. It was Ginsburg's first oral argument in the

Supreme Court, and eight justices voted to strike down the law. But it was only a plurality opinion that was authored by Justice Brennan that ruled that sex was a suspect classification. So they fell just one justice short of the five needed for strict scrutiny review. Okay, so needed to make it law, right? So it's, you know, a nine-member court. You basically need five votes to create an opinion of the court in which that opinion, the reasoning in it, has binding legal effect on future Supreme Courts and on lower federal courts. A plurality opinion, less than five, here we had four votes, agreed that classifications, lines drawn on the basis of sex, should be subject to strict scrutiny, something that laws that distinguish on the basis of race is, and at the time was,

already subject to. So this was Ginsburg's effort. She was an amicus right in front here. She actually wasn't the party council, but she was in there on behalf of the ACLU, but really pressing the argument both as to this particular case, but as a broader legal principle that all laws of this sort should be given the closest legal scrutiny and should rarely survive. And this was a big question because the case that preceded Frontiero is a case called Reed versus Reed, which challenged an Idaho probate law that basically said in discussions over who would be the executor of a state, the preference would always be for men. In fact, men were mandated as the specific executor. And the idea behind this was that men knew math. I mean, that's reductive. That's basically what

it boils down to. Men knew math and maybe women didn't, and so men should be the executors. When that case was decided, again, in the godmother brief that Ruth Bader Ginsburg writes on behalf of the Women's Rights Project, they are pushing for strict scrutiny, but the law is actually struck down under rational basis review, which is the lowest form of review that a federal court can undertake. And it's usually very deferential to the government. So the fact that the Idaho provision was struck down under rational basis review, it really shows that there was no legitimate reason for preferring men to women in determining who would be the executor of an estate. But Ginsburg worried that even though it had worked in Reed, rational basis review might not always be as availing for women's rights in other areas where the question perhaps

was closer. And the military certainly was one of these areas, a predominantly male institution relying on stereotypes about who were breadwinners and who were dependents. It might be harder to strike down the military ruling on rational basis review. So she was pushing for strict scrutiny. This was also, I think, a little controversial at the time because many people were arguing that the 14th Amendment, which had eliminated or was professed to eliminate discrimination on the basis of race, was explicitly about

race. So sort of reasoning from the 14th Amendment and trying to make sex the same as race seemed for many people to be a bridge too far because the 14th Amendment explicitly was not about sex equality. And so this was the roadblock that she kept running into. And in Frontiero, although William Brennan gets four people to agree to strict scrutiny, he cannot get that crucial fifth vote. And a lot of it depends on this question of what is the 14th Amendment for? And Lauren, you do some excavating of the possibility of a fifth

vote in Frontiero, and it has a lot to do with the ERA. So let's tease that a little bit now. Do you want to talk about sort of what you find in the archives and sort of just how close Ruth Bader Ginsburg did get to a fifth vote? Excruciatingly close. And it was so ironic that it was because the ERA was seeming likely to pass at this moment in history. So what is the ERA? The Equal Rights Amendment is an amendment that was proposed first in 1920 and then every session of Congress again until 1972. And it would state that no right shall be abridged or denied on account of sex. And this was proposed

after the 19th Amendment, again, because the women's rights movement that was critical in getting the 19th Amendment passed recognized immediately that their efforts to secure the franchise would not go far enough to secure their equal citizenship. So as soon as the 19th Amendment is passed, they begin working on this other amendment, what they call an equal rights amendment. And they begin introducing it in Congress, but it never gets much traction. Yeah, that's exactly right. So as Melissa just highlighted, in Reed v. Reed, the Supreme Court struck down a law that discriminated on the basis of sex as unconstitutional. And the court there applied rational basis review, which is a very flimsy constitutional standard. But the court applied it with some heft in that case. And at the conference in Frontiero, most of the justices

were on board to strike down the sex discriminatory benefits scheme for military couples under rational basis review. Justice Brennan circulated a draft along those lines, and in his cover note, he said that this case might be an appropriate vehicle to announce that sex was a suspect classification and to raise that bar to strict scrutiny. And at the urging of his law clerk, Jeffrey Stone, he ended up writing a new version of his opinion that would do just that. But Justice Brennan could not get five votes for that opinion. He only ended up getting four votes, making his decision a plurality decision. And Justice Powell actually declined to join Justice Brennan's draft, and he argued that the court can't decide whether sex

is a suspect classification until it knew the outcome of the ERA. Justice Stewart also was making a political assessment about the ERA, and he thought that it was going to be likely to pass, and so he just thought the court should wait. It should hold off from announcing this new standard. Justice Stewart actually tried to barter his vote with Justice Brennan, saying that he'd promised to sign on to strict scrutiny for sex classifications at the next opportunity if Brennan agreed to go with his original draft. And they thought that when the Equal Rights Amendment was passed, it would actually formally make sex equality a requirement of constitutional law. And this would by itself make strict scrutiny the appropriate standard of review for classifications that discriminated on the basis of sex.

So the court didn't necessarily have to read into it in Frontiero. They could simply wait for the ERA to be ratified, and then this would be a matter of constitutional law. That's exactly right. And I think one of the central ironies of this situation is that it was because the ERA was so successful in the states initially that these justices declined to become that fifth vote to give us strict scrutiny. And then as we'll talk about later, as the popularity of the ERA declines, that also contributes to the justices'

unwillingness to raise the bar to strict scrutiny review. So it works both ways. Yeah, it works both ways, apparently. Okay, so we'll get back to the kind of ratification process in the States. But you want to talk about a couple of the other cases that you go deep on in the Ginsburg tapes? Sure. Okay, case example two is Weissenfeld versus Weinberger, which is everyone's favorite case. So there, a man named Stephen Weissenfeld's wife died giving birth to their son. And Stephen wanted to stay home and care for their son. But he was denied benefits available to sole surviving mothers with modest incomes, about $14,000 a year in today's dollars, and he was told that these benefits are not available to

sole surviving fathers. Ginsburg represented Stephen in challenging the social security law, and the court unanimously ruled to strike it down. One particularly wild feature of this case is that no one could believe that Stephen wanted to raise his son on his own. Government lawyers actually argued that Stephen did not present a case or controversy because it was not credible that he would want to be the primary caretaker. And behind the scenes, when you're looking at these justices' notes at oral argument, you can see all sorts of question marks and wows.

And when Ginsburg joined the court 20 years later, Justice Rehnquist asked her, tell me this, did he really want to care for the baby? So this is wild. And again, this is probably the best example I can come up with for why women are needed on all kinds of multi-member bodies. But no one thought that he wanted to raise his own child. They thought Stephen Weissenfeld was lying. Like the idea that a man who was widowed with a baby would actually be raising the baby himself was just like they could not even imagine this possibility. That's right. And yeah, I mean, there's some reporting from the time that Stephen Weissenfeld's

mother-in-law even told him, you know what, just give up the child for adoption and move on for your life, which just really shows just how deeply embedded these stereotypes were then and, you know, obviously still are today. And we should say that Ruth Bader Ginsburg always said that this was her favorite of the cases that she argued, right? She was, you know, it's just like this incredibly compelling story. And there are these three kind of discrete individuals who are impacted by the operation of this discriminatory law.

There is this baby who has a willing and able caregiver who just needs to be able financially to make that arrangement work. Which the Social Security Administration and scheme is supposed to do. Designed to do and yet fails in this instance prior to the successful challenge. You have this woman who, you know, paid into this benefit scheme, died in childbirth, right? And this widower who is being denied both by these kind of financial constraints, but also these kinds thwarted by these kinds of assumptions that he's encountering at every turn. They think he's lying, that he's trying to cheat. Or that there's something wrong with him. Right. To want to raise a child.

Yes. And I think that Ginsburg stayed in touch for many, many, maybe still is in touch with, you know, now obviously grown Stephen Weisenfeld. Is that right? She officiated his wedding many, many years later at the Supreme Court. So that's sort of one of these cases kind of in the middle of the trajectory. Okay. So and then you were talking about one more. Yeah.

I think probably the last case that bears mentioning here is Craig versus Boren. So Ginsburg actually didn't argue this case, but she was very involved in case strategy and she served as an amicus to an extremely colorful lawyer who she nicknamed Ranger Fred. In that case, the court struck down an Oklahoma near beer law. This law allowed women to buy 3.2% alcohol beer at age 18, but made men wait until they're 21. And it is in this beer case that the Supreme Court chooses to, for the first time, carve out a new middle tier of review for discrimination on the basis of sex, and that remains the law today. So why the distinction for women and men on the drinking of near beer?

So women get to drink near beer at 18, men have to wait until they're 21. Why? What's the logic behind this law? So Ginsburg used this case to show a different side of the sex role stereotypes that are being manifested than in the two prior examples. So in discriminating between social security benefits, I think that really shows the sexual stereotypes about women's proper place in the home as economically dependent on man. And in Craig versus Boren,

Ginsburg had a bit of a different argument. She said, this shows the assumption codified in and perpetuated by this law that women are society's quiescent companions, members of the other or second sex. So women are much more docile and compliant and therefore can be more trusted than wild men. And, you know, this is a great example of how these stereotypes are always a double-edged sword. They reflect assumptions about both sexes. And one of Ginsburg's central goals was to show that these types of sexual stereotypes can hold us all back from full participation in American life. So one of the things that Ginsburg is, I think, roundly criticized

for by second wave feminists is her reliance on primarily male plaintiffs. So Sharon Frontiero is kind of an exception here because she's a female plaintiff, but most of the plaintiffs. So Sharon Frontiero is kind of an exception here because she's a female plaintiff, but most of the plaintiffs that the Women's Rights Project files claims on behalf of are men. So Stephen Weisenfeld, on the one hand, the men in Craig versus Boren. Right. So Craig, it would be 19-year-old male drinkers and like tavern owners. Is that those the plaintiffs? Yes, exactly. A female tavern owner. Okay, got it. But the idea they say is that in pursuing these claims on behalf of men, Ginsburg is ultimately

crafting a kind of formal legal equality that makes, that focuses on making men and women formally equal without really sort of understanding the underlying equities that are in play. And I think Ginsburg would resist this characterization and argue that instead what she is doing is actually dismantling a system of sex role stereotypes that cast women as dependent and quiet and passive and responsible, while also casting men as the breadwinners or the wild ones or the ones who cannot be trusted and require a sort of domesticating influence. And her point, as you say, is that these stereotypes might work out well for people sometimes, but they actually have this kind

of double-edged sword in that what if you're a woman who isn't dependent? What if you're a man who's not a breadwinner? What if you're a man who's incredibly responsible and not wild and in need of a domesticating influence? That these stereotypes cut both ways, and it's not always clear that these stereotypes hold true. That's right. I mean, I think Ginsburg was always careful to say if a woman chooses to stay at home, that's okay. But if a man chooses to stay home, a man chooses to raise his child like Stephen Weissenfeld, that needs to be OK, too. And that when our laws codify these stereotypes, they control our choices or they affect our choices is probably a better way to say that.

Constrain, right? conscious about the possible critique that this was too kind of cold and formalistic a conception of inequality and equality, but that if you actually sort of probe, it is quite a savvy strategy, one that is exquisitely sensitive to these kinds of dynamics. And I think the one other thing we should say is it was also quite self-consciously designed to appeal to an all-male Supreme Court and an almost all-male federal judiciary. group of individuals so fully socialized into those norms and expectations was going to be an uphill battle and that this was a different cut at the same set of problems that was at least potentially going to receive a more receptive hearing. Possibly. I mean, so I mean, I think you were exactly right that, you know, were women to come to the court as Sharon Frontiero did. Maybe the court would be skeptical that these laws that were ostensibly aimed at women's protection

were actually, as William Brennan put it, a cage and not just a pedestal for them to be on. But some of these men, I think, as Lauren has told us, also produce skepticism from the court. I mean, a lot of the men who are the plaintiffs here are kind of gender bending in an interesting way. Like Stephen Weisenfeld is a single mother, basically. I mean, and I don't say parent. I mean, he's actually mothering his son, which is why the court is like, what do you mean? Like, why is he giving this child up for adoption? In the same way, there's an earlier case that she pursues, a Tenth Circuit case called Moritz. It's a tax case where there is a bachelor who is caring for his elderly mother who is bedridden.

And, you know, again, the idea that he would be doing this himself as opposed to outsourcing it and he doesn't have a wife who would care for his mother, that too strikes the court or could have struck the court as being incredibly unusual and indeed unbelievable. So there's a way in which, yes, the fact of men plaintiffs might cause the court to be perhaps a bit more empathetic or think about their own positions. But also, I think it could have been even more distancing. Like, these are not men like we're men. Like, these are different kinds of men. Right, or threatening or something to the justices. Okay, right. So potentially, it's an even bolder and riskier strategy.

Yeah, or I mean, it could be all of these things, which might be the genius of it. It is both comforting and deeply unnerving all at the same time. I think there's an important pragmatic reason why she represented men in so many of these cases, which is that so many of the laws that she was challenging were these so-called protective legislation, laws that were according women, some special Social Security benefits, some special tax exemption, some exemption from the duty to serve on juries. And so her goal was to show how this short-term so-called protective law was not worth it in the long run, whatever short-term benefit, because these laws actually served to pigeonhole both sexes. And I think that men were the natural plaintiffs in a lot of these

so-called benevolently sexist laws because they were the ones who were being denied the same benefits, so to speak, as women. Right. That's a great point. The women who are the beneficiaries, whatever philosophical discomfort they may have had, just the kind of constraints of a requirement of a concrete injury that our law imposes would have been an obstacle to bringing a lot of these cases with a female plaintiff. Yeah, that's a very important kind of practical point. So I should just flag for strict scrutiny listeners that one of the lines that opens our podcast, which is Ruth Bader Ginsburg in her first Supreme Court argument, Frontiero, quoting the 19th century poet, abolitionist, feminist Sarah Grimke, I ask no favor of my sex. All I ask of our brethren is that they take their feet off our necks, comes from that argument. And so we are sort of paying homage to that particular argument every time we open our

podcast. Okay, so we started to get a little bit into the kind of origins and history of the ERA as Lauren was walking through some of these cases. So just to get everybody back up to speed, you know, that's sort of the courts. The fight for sex equality has long been waged in lots of other venues apart from just courts and in particular for purposes of this conversation in the political branches of government. So as Melissa and Lauren said earlier, the idea of amending the Constitution to explicitly include a guarantee of sex equality in a broad and standalone way apart from the 19th Amendment's guarantee of the franchise, whatever its potentially kind of broad interpretation from

the perspective of kind of equal citizenship may have been, in practice, it turns out to be quite constrained. So in the early 1920s, we actually have the formal introduction of the first iteration of the Equal Rights Amendment. It's introduced a number of times, right, following that early 1920s introduction. So then, Lauren, do you want to just get us back up to speed, sort of what happened starting in 1970? So from 1923 to 1970, some form of the ERA is introduced in every session of Congress. But the ERA finally makes it out of committee for the first time in 1970. Around this time, a newly elected representative named Shirley Chisholm gave a very powerful speech in favor of the amendment on the House floor. And then a

representative named Martha Griffith resurrected the ERA and forced it onto the floor with a discharge petition. And so critically, this version provided that equality of laws shall not be abridged or denied on account of sex, which paved the way for a more encompassing embrace of sex equality than the original proposal, which was guaranteeing equality under law for men and women. So, OK, so 1970, we finally get this thing out of committee. It's on the floor of the House. And we should say that Article 5 of the Constitution, which is the article that sets forth the process for amending the Constitution, is pretty specific in terms of what is required to amend the Constitution.

So two-thirds – a two-thirds vote in each house of Congress is required to pass a constitutional amendment out of Congress. But before it can become part of the Constitution, it needs to be ratified in the states. states need to affirmatively, acting through their legislatures, or I think they can do it by convention, need to affirmatively agree to adoption of this amendment in the Constitution. So supermajorities in each House of Congress, supermajority in the state legislatures, you know, a high bar. It's only happened, you know, 17 times since the Bill of Rights out of the first 10 amendments to the Constitution. So that's the process that is set in motion in 1970 when the ERA finally makes it out of committee and onto the floor of the House. That's right. So in 1972, both houses of Congress passed the ERA by over two-thirds majority and send this to the states for ratification. It's initially extremely popular. And between 1972 and 1973, 30 states ratify the amendment.

So it's well on its way to the 38 states needed. But then the tide starts to turn and there is a backlash that starts to happen. I'm curious what your all's take is on what happened to turn the tide. Three words. Effing Phyllis Shafley. I was like, I know two. What's the tide? Three words, effing Phyllis Schlafly. I was like, I know two, what's the third? The third is not suitable for our non-adventure rating, right? We're going to keep this one clean. Exactly. Keep This a Family podcast, effing Phyllis Schlafly and her campaign Stop ERA. So Phyllis Schlafly is a St. Louis housewife, and she begins this campaign that is

both stunning in its alacrity and its vitriol. So she begins this campaign that argues that the ERA is going to, one, completely take away the privileges that American women have under existing law. And that's the first part of this acronym, STOP ERA, Stop Taking Away Our Privileges, ERA. And so the privileges that she's speaking of include special protectionist legislation that would give women protections in the labor force or in benefit schemes. And ironically, these are the same kinds of complaints that working class women had lodged against the ERA when it was first proposed in the 1920s. So the women who actually put forth the ERA are upper class and middle class women, and their claims for sex equality are roundly objected to by working class women who are in the working force and actually want

these kind of workplace protections. Phyllis Schlafly capitalizes on this, and she again says that the ERA will take away these protections that women need, and more importantly, that they want. She's also very much hammering away on this idea that the ERA will conscript women into the armed services. And this is a very timely and time-sensitive argument because the Vietnam War is coming to a close, but it is wildly unpopular. The draft is wildly unpopular. And women, she argues, want no part of selective service or conscription. So that's a big part of it. The other arguments are, I think, will seem more anachronistic to us, but she argues that the ERA will absolutely undermine and destroy the traditional family, one, because it will make abortion on demand radically accessible and possible. Two, it will allow for same-sex marriage and what she calls

homosexual rights. This is actually, I think, kind of interesting to think about today because, one, when she is proposing this, Roe versus Wade has just been announced, so abortion is now legal. It will slowly, again, there will be a moment of retrenchment, as we've discussed on this podcast, as the years go on. But in 1973, abortion is legal. Same-sex marriage is not yet legal. But as we know, there will be continued advances, both in the court and outside of it, that will ultimately culminate in the legalization of same-sex marriage and the broad acceptance of same-sex relationships and LGBTQ people more generally. So it's interesting to think about the campaign that she's waging because parts of it might seem anachronistic to us today,

but it's incredibly effective when she's on the road and she's going. I mean, what's interesting, she's a housewife who's constantly on the road trying to stop the ERA. And she thanks her husband at every speaking engagement for allowing her out of the house to be able to stop the ERA. But she makes a very forceful claim and she is incredibly effective in turning the tide that had been so clearly in favor of ratification, and she stops the ERA in its tracks. Yeah, sort of single-handedly. I mean, the one other thing I would say about, I mean, she is sort of violently anti-LGBTQ. Yes.

And certainly marriage is a piece of her platform, but I think bathrooms also were. Yes. So to the extent that some things seem anachronistic and some things are so distressingly still under consideration and debate, like, you know, in the Bostic Title VII oral argument, the justices were, it literally did feel like Phyllis Schlafly was in the room. The ghost of Phyllis Schlafly. She really was kind of there, right? There was just a shocking and bizarre amount of bathroom talk, but right, but she sort of would return to the specter of the unisex bathroom in her kind of stump speech. What would she have done with Ally McBeal?

Do you remember Ally McBeal? Yes, but I don't remember any bathroom. Oh, there was a unisex bathroom at her law firm? Am I dating myself? I remember Ally McBeal. So if you are, I am too. We are older workers. Lauren, do you remember?

No, Lauren is not an older worker, so I doubt she'll like us. Sorry, guys. Lauren is not an older worker for purposes of the Age Discrimination and Employment Act, but Kate and I are. Okay. Yeah. So just to add on there, I mean, I think that Phyllis Schlafly's campaign both contributed to and coincided with this pre-existing rise of the moral majority.

And before Schlafly's movement started to take off Stop ERA, the ERA was largely seen as nonpartisan. It was actually supported by every president from 1945 to the 1970s, from Truman to Carter. And Schlafly managed to make the ERA such a political issue. I think this is a great point. So what Schlafly did to the ERA, the moral majority does, I think, to lots of other issues in American life, and particularly abortion. When Roe versus Wade is announced in 1973, reproductive rights is a bipartisan issue. Like Roe versus Wade is announced by a Nixon appointee, Harry Blackmun. Prescott Bush, the senator from Connecticut who is the father of George H.W. Bush and the grandfather of George W. Bush, is one of the co-chairs of the Connecticut Planned Parenthood League.

His son, George H.W. Bush, as a representative from Texas, champions Title X and other family planning measures so much so that he's actually known in Congress as Rubber's Bush. I know. Hold on to that. Hold on to that. Dwight Eisenhower, Republican president, is the national chairperson of the Planned Parenthood League. So I mean, there was wide bipartisan support for these things that today we understand as ideologically, like sort of ideologically pure issues. Yeah, I think that's right. And that Schlafly's movement really fanned the flames of what would become this self-dubbed moral majority. And there was so much, as you guys are just talking about, defined by what it was opposed to. It was opposed to the ERA, to gay rights, to reproductive freedom. And I think it was a real stroke of political genius that is reverberating through our society today that Schlafly managed to tie the ERA to the abortion rate and then to politicize both. And I also think one of the reasons that Schlafly was just so dominant in this discussion was because she was a beneficiary of the Fairness Doctrine.

So this was the era of network television, and networks are required to air both sides of an issue. And on the pro-ERA side, there are hundreds of female voices that you could elevate. And on anti-ERA,, there are hundreds of female voices that you could elevate. And on anti-ERA, she really was the only female voice. And so as a result of that rule, she was everywhere. It made this seem like way more of a women against women fight than it really was, which made people think that the ERA was maybe less obviously good for women than clearly they initially did in that first wave of ratifications in the States. Fascinating. So, okay. So obviously,

Philip Schlafly has gotten a lot of play on this podcast. Fortuitously, I guess, I'm not sure, depending on your perspective. I think it will be useful for people who aren't familiar with her kind of historical role to get some exposure to her. So in April, there is a new miniseries, Mrs. America. It's coming out on Hulu. Coming out on Hulu, starring Cate Blanchett as Schlafly. And there's like a two or three minute preview online you can watch. And it looks absolutely terrifying. It looks absolutely terrifying. It's a star-studded cast, right? So I think Uzo Aduba from Orange is the New Black is playing Shirley Chisholm. Rose Byrne is playing Gloria Steinem. John Slattery from Mad Men is Mr. Phyllis Schlafly,

who allows his wife out against his will. I think they also hone in on the sort of extra, the marital tension that her advocacy foments. So I know nothing about that part of the story, so that is fascinating. So anyway, we will, I know nothing about that part of the story. So that is fascinating. So anyway, we will, I am sure, be returning to the topic. We'll have to do a Ginsburg tape Strix scrutiny watch party nationwide. Will we be hate watching it? Because I actually enjoy hate watching sometimes. Yes.

Like, that's fun. Yeah, that's what this will be. We should hate watch it. Will you host? I will totally host. I'll make popcorn, red wine, like all of it. Okay. Okay. So let's go back to the sort of where we are in the 1970s. So as Lauren described, this is initially, it really looks like it is racing to ratification in the States. It is justlafly's kind of ascent on the scene, things grind to a halt, right? And ratification is stuck at 35 states and it takes 38. So

the country is three states short of actually ratifying this thing and getting it added to the Constitution. So Congress sort of in recognition of this kind of delayed progress extends the original deadline that they had included in a resolution attached to the amendment. So initially ratification was – the seven-year deadline was in 1979. In 78, I think, Congress extends the deadline to 82. But that extension doesn't garner any additional ratification. So everything stays at 35 for decades. And then all of a sudden in 2017, there is a renewed interest in ratification.

And Nevada first ratifies in 2017. And Illinois then ratifies in 2018 and in 2020. So January of this year, Virginia becomes the 38th state to ratify the ERA. So both houses of the Virginia legislature vote on January 15th to ratify. This happens to be almost exactly a century after the ratification of the 19th Amendment. So all of a sudden, we have 38 states. So, okay, first basic question. So why is there this resurgence after decades of inaction in 2017? So Lauren, what are your thoughts on this? Well, there are two precursors to this that emerged in the 1990s. First is this 202-year gap in time between the proposal and enactment of the 27th Amendment,

which is our most recent amendment to the Constitution. And that has to do with congressional pay. So this amendment was proposed by James Madison, and he wanted it to be part of the original Bill of Rights. It would essentially state that Congress can only raise its own pay for future Congresses, so congressmen would have to face voters before giving themselves a pay raise. So a 19-year-old sophomore at University of Texas named Gregory Watson wrote about this amendment for a school paper. He got a C on the paper, but that motivated him to launch a movement, and he made it his goal to get this part of the Constitution. It did become part of the Constitution in 1992. This gap in time actually provided some ammunition for those on the ERA side who argued that just as the 27th Amendment could be subsequently ratified after a 202-year gap in time, certainly the ERA might be able to be ratified after what was surely a much smaller gap in time, though a substantial gap in time nonetheless. So this provides a new ground

for people to begin thinking about the ERA, the work of the 27th Amendment. Right. So that's definitely right. But that's 92, right? So we still have to explain why there's this inaction between 92 and 2017. Five words. You got five? Grab them. Bye. I was thinking Donald effing Trump. No need to go on.

Donald Trump. Yeah, I think that's right. In 2017, there's just this amalgamation of interrelated forces, this collective reeling from the affront to women that is the election of Donald Trump culminating in the Women's March and the powerful forces of the Me Too era. I think at the same time, there's this mainstreaming of feminism, the rise of feminism as a dominant worldview in a way that just wasn't the case for so much of American history. And in this milieu that we're currently living in, opposition to sex equality is becoming

an increasingly difficult political proposition. In terms of the fairness doctrine, I'll say like not all women believe this. I mean, there's a substantial number of women who support Donald Trump and continue to support Donald Trump. But I think you're exactly right in terms of what galvanizes support for the ERA anew in 2017 is the fact of the 2016 election, the confluence of the Me Too movement, and the sort of mobilization of women's political energy around these series of women's marches throughout the country. And needing a sort of legal outlet for that, many begin to focus on picking up the banner of the ERA, which has been dormant since the 1980s. Yeah. And I think we should say there are, I think there are grassroots kind of on the ground stories in each of these states in which sort of a number of activists worked incredibly hard. So I think some beginning before 2017, although not much before. And all of these labors sort of bore fruit in beginning in 2017 and then quickly with 2018 and 2020 ratification. Okay. So we have 38 states that have ratified the ERA. That's what

Article 5 seems to require. So does this mean that the ERA is now part of the Constitution? Not so fast, says the Office of Legal Counsel. So Kate and I talked about this on an earlier episode, but a few weeks ago, almost a month ago, I think, the Office of Legal Counsel, which is part of the executive branch, issued a memo suggesting that the ERA, even though Virginia had become the 38th state to ratify, was not part of the Constitution. And this memo was directed to the United States archivist. This is part of the Constitution because, one, this question of the lapse in time between the 1980s when things looked like the tide was turning and these is the end of it or merely the beginning of what will be a kind of protracted legal battle over the legitimacy of the ERA, whether this can go into the Constitution as a ratified amendment or whether the women's rights movement must start

afresh and rebuild and start anew to gather the 38 states it needs. So, OLC has weighed in. Now, I think that most people agree that the Office of Legal Counsel inside the executive branch cannot have the final word on the effectiveness of the ratification of a constitutional amendment. That just can't be right. That is exactly right. So, I mean, it was like, thank you, next, right? I mean, yes and no. I mean, I think that they certainly can provide binding legal guidance to the archivist. And the archivist does have this important ministerial role in actually certifying an amendment for inclusion in the Constitution. So in the very short term, their, you know, non-binding in other venues opinion, which you're right, is kind of just them giving their view, actually does have real legal force, which is the archivist doesn't certify it and it doesn't become part of the Constitution.

But as a constitutional matter, the question of the ratification of amendment seems committed to Congress and the states and leaves the executive out almost entirely. I mean, Article 5, I think very conspicuously, doesn't have any role even for the president in ratification. It is the houses of Congress. It is the states. It's pretty interesting. Most lawmaking has a role for the president, not amending the Constitution. President doesn't get any role. Certainly this subordinate officer,

the, you know, assistant attorney general for the Office of Legal Counsel, can't possibly bind the entirety of the federal government. And yet that, you know, there is a bottleneck that OLC represents or this is a blockage point in terms of the ERA actually achieving. And I think it's also symbolic, too, that the Office of Legal Counsel is raising, I think, might actually be justifiable objections to this, or at least worth puzzling out. Arguments that could carry the day, but that OLC can't be sort of the final arbiter of. Right. I mean, they can't be the final arbiter, but they can certainly surface these objections in the first instance, and they have. Absolutely. So there's that.

So we've got some lawsuits, not surprisingly. We are a litigious culture. So what are the lawsuits? Who's bringing these lawsuits? And what are they arguing about the ratification of the ERA? So two of the major lawsuits were actually brought by states. So Virginia, Illinois, and Nevada, the three states that ratified most recently, filed suit seeking a declaration that the ERA is now part of the Constitution. And Alabama is leading a sort of mirror lawsuit that is seeking to prevent the ERA from becoming part of the Constitution. And I think two big issues that are going to be played out in these cases are the deadline for ratification and the purported, the effect of purported rescissions. So on the deadline, as we've discussed, the deadline was originally 1979, and then it was

extended to 1982. And Virginia argues in their suit that this deadline is not dispositive. One of their arguments is that the deadline is actually in the preamble, in the joint resolution proposing the amendment, and not in the actual text of the amendment that the states votes on. The second is that the deadline is committed to Congress's discretion. As we were just talking about, Congress has so much authority in deciding whether an amendment is part of the Constitution. So Congress has extended the

deadline once, and the argument goes that they can extend that deadline again. Right. So that argument still does require some congressional action, but I think that the states are arguing that a simple majority vote in each House of Congress is sufficient, that Congress controls the mechanism of ratification, and that Congress has every authority, if it chooses to, to extend a deadline either within the window of an original deadline or even after an original deadline has lapsed. There's, I think, one more textual argument in addition to the fact that – so other constitutional amendments have had deadlines. The 27th didn't, and that's maybe significant, but others have. But those deadlines have actually been worded differently, not only located in the text of the proposed amendment itself, but also earlier amendments contained language saying that the amendment will be inoperative unless it shall have been ratified by three-fourths of the states by this particular date.

The ERA resolution says the following article is proposed as an amendment, which shall be valid when ratified. So shall be valid when ratified. So shall be valid when ratified rather than inoperative unless ratified. So maybe that's a significant distinction that creates the seven-year window that isn't binding in the same way as the deadlines in the previous amendments. But also to this kind of deeper point about Congress's discretion, you know, the argument in the Supreme Court has made clear that Congress really runs the show when it comes to deciding, you know, the sort of specifics of constitutional amendments. And, you know, whether or not, to Melissa's point, so OLC makes some totally plausible legal arguments in its memo, but whether or not those are the best legal

arguments is not really the question that Congress is required to answer. Congress is able to make more of a kind of political and even moral judgment about what, you know, what the Constitution should look like, what mechanisms should exist for changing the Constitution's composition, and that it can make that judgment in a way that is legal or in a way that encompasses other kinds of considerations. And again, this still, I think, requires both houses of Congress to act. I mean, there's two distinct arguments. One is that the ERA is already in the Constitution now. But I think that probably the stronger argument is that it can be, but only if both houses of Congress act. And I think actually, you know, the latter argument really just says this isn't a purely legal determination. And Congress can decide on whatever basis it chooses to extend.

Congress's authority also comes in with the second big issue that's going to be litigated in the state's cases, and that's this issue of rescissions. So five states have purported to rescind their original ratification of the 14th Amendment. And there's an argument here that it's ultimately Congress's decision as to whether to recognize these rescissions. There's also a textual argument in this context that Article 5 says that once ratified, an amendment shall become part of the Constitution, and it doesn't envision conditional ratification. There's also a strong historical precedent argument in the rescissions context, which is that states have tried to rescind their ratification of prior amendments, including the 14th, 15th, and 19th Amendment. And Congress did not recognize those purported rescissions.

Right. So the argument there, too, is it's within Congress's discretion to choose not to recognize these purported rescissions. Okay. So let's say Virginia, Nevada, Illinois succeed either because the court somehow decides to have the final word on this or because the court says this is the ball is in Congress's court and Congress decides to recognize the ratification and not the ratifications and not the rescissions. This sort of substantive question, I think, is that what will the ERA do that we don't already have through Ginsburg's efforts and through the intermediate scrutiny, which is the place that the court ultimately lands in the sex discrimination context? Like, what would it do, the ERA? So I think there's a really strong symbolic argument here. We are the only country with a written constitution that includes a Bill of Rights that does not include a guarantee to

equality among the sexes. And so the ERA would give sex equality that permanent home in the Constitution. I mean, ultimately, intermediate scrutiny is a judge-made doctrine, and it is subject to the whims of the judiciary. And the ERA would give sex equality a permanent home that would be exceedingly difficult to take away. Would it necessarily require strict scrutiny? I mean, this seems to be a point that advocates for the ERA keep making. And I wonder, one, is it true that it will require strict scrutiny? And if yes, it does require strict scrutiny because the natural analog is race in the 14th Amendment, is that even a good idea? Because we have seen in the context of race that-

To return to double-edged swords. even a good idea because we have seen in the context of race that strict scrutiny has been a double-edged sword in the race context. Yeah. I think that you, among law professors, there's a degree of skepticism about some of the sort of claims made by advocates that strict scrutiny, A, will be automatically required by the ERA, but I think, B, that it will necessarily redound to the benefit of women. I think it's like all of the Constitution means almost nothing by its words alone, right? All of it is filtered through judicial review. And so a lot turns on what the courts and this Roberts Court decides to do with the ERA.

In fact, it becomes part of it. And we're a little skeptical, I think. Well, look at the 14th Amendment. I mean, the 14th Amendment is passed in what, 18, it's ratified in 1868, and it meets a very hostile reception at the court, which at every turn really cabins the meaning of the 14th Amendment and renders it- State action, privileges and immunities. Yeah. There's all these limitations overlaid. I mean, it's almost a nullity until like after the Lochner era in 1954 when the court decides Brown.

And then, of course, it becomes the Equal Protection Clause in particular become wildly important, you know, among the most important provisions in the Constitution. But it took a while. It took a while. And, you know, and I think that there is a fear that even where we are right now, the Equal Protection Clause is in some danger of being a more potent weapon as against race conscious affirmative action programs by government than in terms of vindicating discrimination claims.

I mean, this is the question of strict scrutiny. I mean, is it going to be strict in theory, fatal in fact for everything? Yeah. And for whom? Yeah. And so I think that that's – maybe this is like cold water on something that I think is like very pure, the sort of movement for ratification. But I think it's just, it is worth pausing to ask, or at least it is

worth counseling a bit of hesitation about what exactly the words as written would require when filtered through the lens of judicial review. I don't think we're trying to like, I mean, again, I don't think we're trying to be the turd in the punch bowl here. But I do think we are suggesting like putting all of your eggs in this basket without more is perhaps problematic. And I think there are very, there are a number of scholars raising real questions who are asking, haven't we already created through judge-made doctrine what essentially amounts to a de facto ERA. Why don't we work on defending that line of cases as opposed to introducing this new element that might completely upend the apple cart? In terms of the de facto ERA, right, like there are some law professors we've already talked about, Reba Siegel, but she has made the argument that in some ways

the line of cases that Lauren has been discussing represent some kind of de facto ERA that the court basically does through interpretation of the 14th Amendment much or most of what the ERA would have done through explicit constitutional amendment, which is to read the Constitution as protecting against discrimination on the basis of sex, whatever the particular doctrinal formulation, intermediate scrutiny versus strict scrutiny. And so that the ERA in the 1970s succeeds in a way that success and failure are not measured simply in ratification or, you know, 37 versus 38 states, that actually it's much more nuanced than that. And that forcing kind of popular and cultural change and then doctrinal change is a form of success that should be recognized that the original ERA achieved and that, you know, in you could in theory imagine this renewed push for ratification achieving in another way. Yeah. So, I mean, just to go back to your early points of kind of about the uncertainty that has to be on the top of the mind of any law professor. I think it's true that you cannot say with a straight face

that we can predict with certainty what is going to happen with the Equal Rights Amendment. And I often think about it kind of as an analogy to some of the Bill of Rights. So much like the founders decided to elevate the right to freedom of speech and enshrine it in the Constitution in the First Amendment, the Equal Rights Amendment would enshrine sex equality among our country's highest values. And I think like the First Amendment at the time of the founding, I don't think anyone can say with certainty what will happen with the ERA. But just as the founders couldn't have predicted necessarily that the First Amendment would give rights to citizens united, the Equal Rights Amendment would have the potential to affect a number of substantive areas in ways that intermediate scrutiny have not reached. So those are areas like pregnancy discrimination,

equal pay, and domestic violence laws. And I think a lot of the work that would be done there would be in the second clause of the Equal Rights Amendment, which actually gives Congress the power to enforce the sex equality guarantee. I also think it's worth saying that the ERA would give us a fresh start on equality. We could, this could be the equal or the sex equality for 2020. We could re-envision this as a way that prioritizes an intersectional framework and is a more encompassing view of what sex equality can mean, including all gender identities and sexual orientations. Yeah, I think those are all great points. And I do think it's important to kind of to bring Congress into this part of the conversation, which is that whatever an ERA would mean for individual rights claims and how they might fare differently under an ERA framework than under an existing intermediate scrutiny framework,

arguably the ERA would give Congress affirmative warrant to act on all sorts of things like paid family leave and more robust pregnancy discrimination and violence against women and other things that they have either failed to act on or encountered affirmative constitutional obstacles in attempting to enact. And thus, this kind of legislative constitutionalism component of the ERA is as important as whatever doctrinal change it might usher in. And the ERA also, I think, and this is a lesson that we saw in, I guess, the first iteration of the ERA in the 1970s and 80s, is that it can actually prompt state-level responses that are incredibly generative

of individual rights. So in the 1970s and 1980s, when the ERA was being debated, a number of states enacted their own equal rights amendments into their state constitutions, which has proven to be incredibly effective for securing at the state level some of these protections that Kate has mentioned are now being debated on the federal level. And that's happening again now. So from the perspective of, yes, spurring other kinds of debate and change and popular engagement with the Constitution. We only have, you know, half the states or something like that, maybe half state level ERA. So there's a long ways to go. So even if this renewed push only spurs more states to amend their own constitutions if the federal constitution isn't successfully amended, that would be a very significant result of this particular wave of kind of action and activism. But again, I do think there is something to this question of the symbolism

of it, like to be formally included in the Constitution. I'd like to just go back to 1787 and the Iroquois being like, where are your ladies? What's going on? There is, I think, something to that. But, you know, symbolism can also come with stasis. And, you know, we saw the 14th Amendment was incredibly symbolic and led to a period of 100 years where race discrimination just took different but equally potent forms. So we alluded to this earlier in the conversation, but Justice Ginsburg actually recently said at an event at Georgetown, when asked about the ERA, she basically said, meh, I think it needs to start over. I'm sure everyone was like, thank you so much. Thank you for that is a good summation of the response. You and OLC.

We appreciate your opinions. It's a dash of cold water, I think. It definitely was. And this is definitely not her first time speaking out on public issues. She said that she would move to New Zealand if Trump was elected. She said that sexism played a prominent part in why Hillary's Clinton campaign failed. Around same-sex marriage, she said the public can handle it. And, you know, Ginsburg, when Ginsburg speaks out, it generates a ton of attention. And the ERA is a great example of that. So after she made that comment at Georgetown, the House was voting to extend the deadline. And the first demonstrative on the House floor was about Ginsburg's comments. There was an article in Vox that was titled, Ruth Bader Ginsburg probably just

dealt a fatal blow to the Equal Rights Amendment, which of course is not true. It's of course not true. And I think it obfuscates the fact that Ginsburg has always supported the ERA as a substantive matter. And she's simply voicing some of these real doctrinal issues that we were talking through earlier. So this speaks to, I think, a couple of different things, like irrespective of the ERA. But one, justices weighing in on issues that are political, legal in nature, potentially could become part of the court's docket. So there's that question. And also this idea of the justices in the wild, like the celebrity justice on whose word we are all hanging, because that is surely a more modern perspective. I don't think we've ever lived in an age outside of this

one where the justices have been celebrities in quite the way they are today. Certainly, Justice Ginsburg is a celebrity and is well known and is known on site, but so are some of her colleagues. And Rick Hassan did this piece for Green Bag a few years ago about the phenomenon of celebrity justices. And he used some metric of counting public speeches and things like that. And I think he found that nine of the ten most sort of public-facing justices in our history are the nine current justices. I think like Arthur Goldberg maybe was the ten. Yeah, he was number three. But the rest are the current.

So to be fair to the justices. I mean, I guess this is pre-Gorsuch and Kavanaugh. But this is the nine justices on the 2016 court. But to be fair, I mean, like Rick Hasen is counting speeches. And not all speeches are public. That might not be the only metric. That might not be the only metric. But it's interesting regardless.

He found an eight-fold increase in just Justice's public appearances between 2005 and 2014. Wow. Well, some of it is Justice Sotomayor had a very popular book that she was promoting, and that could certainly explain a lot of public appearances. And I actually think that Sotomayor – so book promotion, he identifies as one explanation for the phenomenon. But I think Sotomayor herself also very self-consciously views herself as playing this role of kind of demystifying the court, expanding conceptions of what a justice can look like, where a justice can come from. I think David Fontana at GW called her the people's justice. And I think she embraces that label and that role. Yeah, I think that's right. You know? And so I think for her, it's not that I don't think she views herself as having constituents in some political sense, but that she views the kind of civic and educational function of her role as an important dimension of it. So for her, I think it's those kinds of considerations that drive her to be more public facing.

Well, and I don't think that's just about her time on the court. I mean, although I think her, her position as a justice amplifies that, but even as a judge on the second circuit, I think she felt compelled within New York to play a more public facing role. I mean, she was always the judge on the second circuit who would go and talk about the importance of jury duty, or would talk, she was, you know, like, she was involved in like sort of mentoring students at high schools and elementary schools and middle schools in the area. So there was an element of that that I think is amplified by her elevation to the court. But she is not alone. And I think that's actually really important, too. And I think you can't really think about this without the rise of groups like the Federalist Society and ACS, which have really provided important fora for the justices to actually speak to audiences. So, I mean, I think a number of these speeches that Rick is chronicling

in his study in the green bag are actually happening at the Federalist Society and the Heritage Foundation and ACS. So, I mean, the rise of those organizations, too, I think are part of this. And I do think, you know, you think about the kind of the function of these different speeches. So we've, I think, described – so to Mayer's Justice Scalia's when he was on the court was, I think, entirely different. You know, he was really doing the work of promotion of a particular mode of constitutional interpretation, right? He was out there, you know, as sort of a proponent of originalism. Bang in the drum for originalism. Yes. And I think it got him a lot of adherence. Now, did it actually turn our court into an originalist majority court? I think still no, although jury is not out. It made originalism a part of their vernacular at a public level.

I mean in a way he's kind of like the Billy Graham of originalism, which is incredibly interesting. And while he's also doing that, he and Justice Ginsburg are showing up at the opera and they're playing roles at the opera, too. So, I mean, he's public facing in a very particular way, but then also in this kind of more general, like, you just know them in the wild, which, you know, no one, I don't think anyone, like, you know, what did Justice Harlan look like? Could you pick him out of a lineup? Nobody could. Yeah, I mean, Rick Hassan wrote about this in his LA Times op-ed on celebrity justices, that no conservative justice has spoken at ACS and no liberal justice has spoken at the Federalist Society. And I think bringing up Justice Ginsburg and Justice Scalia in that conversation makes sense, as both often spoke to large, adoring fan bases, both on the right and the left. And often spoke together in many ways. So I think it's a really, it's an interesting moment. I don't know if it says something about the current, of our culture, which I think is much more steeped in a kind of awareness of the court and legal issues more generally. And maybe that's because of the rise of cable news or whatnot. But I just think the court has become much more of a flashpoint than it ever was.

So I have some kind of inchoate thoughts about the kind of celebrity justice phenomenon. And so I want to kind of try them out and see what you guys think. So I'm thinking about this phenomenon sort of vis-a-vis the president in particular. So for better or worse, the president occupies this hugely important place in our national imagination and has for many decades, but especially does now, right? Daphna Renan has this great piece, The President's Two Bodies, in which she refers to like the personal or charismatic president as compared to the institutional president. But so the president has, you know, obviously the bully pulpit, addresses the public constantly, has this kind of really powerful speech platform. And speech and public address are these key tools of presidential governance and sources of power. And corpse are-

Well, you just wrote about this in this terrific new article that you have out on the impeachment and presidential speech. So just this idea of the president speaking, but also interacting with the other branches. So I've been writing about, well, thank you for plugging my article, Melissa. We have no law. I've been writing about presidential speech for a while, but this is actually something that I've been thinking maybe I should write about. But yeah, so courts speaking outside of their ex cathedra, like through judicial opinions context and as this kind of a form of kind of interbranch rivalry that on some level might be driving some of this. And in fact, if they're going to be this important check or counterweight to the president, maybe it's important that they have some degree of a public profile, that there is sort of authority that flows from that. Now, I'm not sure that's a good development and I'm not sure it's animating the justices in any deliberate or intentional kind of way. But is there something to that dynamic?

And if so, there aren't a lot of rivals for presidential power right now. Congress is actually, you know, not proven up to the task and the courts in some ways are rising to the occasion in the age of Trump, although the Supreme Court in a very mixed way. Well, but this is like to your point though, I mean, like Chief Justice Roberts coming out in that very, you know, sort of strident and pointed speech, there are no Obama judges, there are no Trump judges, there are just members of the federal judiciary doing their level best. And it was actually a written statement, but it was like it came from the press office and everyone was floored because people submit questions all the time to the public information office

and no one ever comments. And all of a sudden, Roberts responds with, as you said, this really sharply worded rebuke to the president. And the way it was covered was not as, I mean, like it was a written statement, but when it was covered in the press and particularly on television news,

both cable and broadcast, it was with a picture of the chief justice alongside the statement and someone reading the statement as a voiceover. And so you kind of associated the figure of the chief justice with it. the recent impeachment trial and having, you know, perhaps more sustained contact with the American public than he ever does is also a means of sort of elevating the profile of not just him, but also the body he leads. Although, as we've discussed, I'm sure he would have been happy to avoid that particular turn in the spotlight. I mean, it was like the worst birthday you could ever have. The horrible, horrible. At the end or whatever it was. He could barely talk. I know. I felt bad for him. But anyway, so is there something to that? It's a new forum for separation of powers.

Yeah. Disputes potentially or at least dynamics. I mean, kind of making sure that the court or the other branches maintain as robust a profile as the president is. And this may be— No one can. I mean, they're not on Twitter. This is my point, right? I mean, like, so Kate has written lots of things about the president's Twitter profile.

I mean, like, she's actually written, like, this idea of presidential speech now sort of filtering into social media. The court can't have social media. So does it have to step it up a notch and be publicly available and visible in order to continue to remain an effective check in the minds of the people. Right, which are, you want to ask of them. Well, that's all we have time for today in this episode of Strict Scrutiny. I want to thank our guest, Lauren Moxley, from the Ginsburg Tapes. This was a crossover episode that I think Shonda Rhimes would have been really proud of. Thank you for joining us. I loved being here.

We loved having you. It was great to have you, Lauren. For those of you who are regular listeners of Strict Scrutiny and want to support the work that we are doing here, we would love to have your support. You can find us on our website, www.strictscrutinypodcast.com. You can also find on that website awesome merchandise that can give you a strict scrutiny glow up just as we've been glowing up wearing our strict scrutiny merchandise. So there are trucker hats, tricolor tees, baseball tees, sweatshirts, everything that you need, dog bandanas, you name it. We've got it.

Get me a trucker hat. Everyone needs a trucker hat, even the Chief Justice. And if you're also interested in subscribing to our GLOW campaign, you can also support the pod that way. And you can find that at glow.fm backslash strictscrutiny. You can follow all of us on Twitter and follow the pod at strictscrutiny underscore. And at this point, we would like to thank everyone who's helped us out today. Lauren Moxley from the Ginsburg Tapes, Greg Addison here at NYU for the production support, Eddie Cooper for our music, and Catherine Fink and Melody Rowell for their great producing

assistance. Thank you so much to everyone. And we will see all of you later. See you next time.