Earlier this year, Virginia claimed to ratify the Equal Rights Amendment. According to ERA supporters, Virginia was the 38th state to ratify. As a result, 3/4 of the states voted to ratify, and a new 28th Amendment should become part of the Constitution.
Virginia’s ratification status is now pending in several courts. Alabama, joined by Louisiana and South Dakota, filed suit in the Northern District of Alabama. They argued that the deadline for ratification had already passed. The Office of Legal Counsel weighed in and also concluded that the deadline had already passed. Another lawsuit was filed in the District of Massachusetts, arguing that the ratification is proper. And Virginia, joined by several other states, filed a lawsuit in the District of the District of Columbia to order the Archivist of the United States to certify the 28th Amendment.
This issue will almost certainly go to the Supreme Court. However, at least one judge had already ruled on it. Last year, Justice Ginsburg said, “I hope one day it will be put back into the political hopper, starting from scratch, getting the necessary number of states together to ratify it.”
And today, she once again spoke out on the issue. Here is the report of CNN:
Justice Ruth Bader Ginsburg, a longtime supporter of the Equal Rights Amendment, suggested late Monday that the deadline to ratify the measure as a constitutional amendment had expired and the decades-long effort should start over. .
“I would like to see a fresh start,” Ginsburg told an audience at the Georgetown University Law Center.
“I wish it would start again,” she added.
Ginsburg was responding to a question from the event’s moderator, Judge M. Margaret McKeown of the 9th Circuit Court of Appeals, who asked if there would ever be an equal rights amendment at the federal level.
The ERA would prohibit discrimination on the basis of sex and guarantee women’s equality under the Constitution.
Ginsburg’s comments appeared to throw cold water on a recent effort by Virginia and other states that argue that after Virginia became the 38th state to ratify the amendment last month, states had reached the threshold necessary to amend the Constitution.
Nodding in response to the question about the dispute, Ginsburg said “there’s too much controversy about latecomers,” and she added that Virginia’s decision came “long after the deadline expired.”
By all accounts, Justice Ginsburg long ago decided whether the ERA’s ratification deadline had passed. And she continues to publicly express that view, even though litigation is pending in the lower courts.
ERA supporters are unlikely to file a motion to disqualify Judge Ginsburg. (Such a step would be an apostasy). But I don’t know how RBG could approach this case in a neutral way.
Update: ABA Journal offers more remarks from Ginsburg:
“I would like to see a fresh start,” Ginsburg told his interviewer at the event, Judge M. Margaret McKeown of the United States Court of Appeals for the 9th Circuit in San Francisco. “I would like to start again. There is too much controversy over latecomers [like] Virginie well after the time limit expired. In addition, a number of states have withdrawn their ratification. So if you’re counting a latecomer on the positive side, how can you ignore the states that said, ‘We’ve changed our minds’?”
It also seems to suggest that states can revoke their ratifications.