Ruth Bader Ginsburg Versus the Equal Rights Amendment

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in the political sense, but her suggestion that you can’t count the late-coming states without counting those that have rescinded their ratifications is at the heart of one of the legal arguments against this current effort.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.

Russell Berman is a staff writer at The Atlantic, where he covers politics.