Patrick Strawbridge, a partner with Consovoy McCarthy, speaking in 2018. Credit: Diego M. Radzinschi / ALM

The litigation boutique Consovoy McCarthy, representing several Republican-led states hoping to derail the revival of the Equal Rights Amendment, filed court papers Wednesday that rely in part on an unlikely voice: Justice Ruth Bader Ginsburg.

The firm, which has been a leading advocate for President Donald Trump in court and has become more broadly a go-to firm for conservative legal causes, pointed to Ginsburg's comments that the ratification effort needed to "start over again."

Consovoy McCarthy lawyers appeared on the court filing with state attorneys general from Alabama, Louisiana, Nebraska, South Dakota and Tennessee. The five states moved to intervene in a suit filed in Washington's federal trial court by Virginia, Illinois and Nevada against David Ferriero, archivist of the United States and the gatekeeper for adding amendments to the U.S. Constitution.

The three states, the latest to ratify the ERA, contend in their lawsuit that it must now be added to the U.S. Constitution. But not so fast, according to the lawyers for Alabama, Louisiana, Nebraska, South Dakota and Tennessee.

"As Justice Ginsburg put it, the ERA cannot be ratified unless it's 'put back in the political hopper' and its proponents 'start over again, collecting the necessary number of states,'" the Republican states' court filing said.

Virginia, Illinois and Nevada ratified the ERA in 2020, 2018 and 2017, respectively. They argue in their lawsuit that the ratification threshold—38 states—has been met. The archivist in a January statement said his office will abide by a U.S. Justice Department legal counsel opinion, that the deadline for ratification has expired.

The Consovoy McCarthy team, including partner Patrick Strawbridge, a former clerk to Justice Clarence Thomas, along with state attorneys general of Alabama, Louisiana, Nebraska, South Dakota and Tennessee, contend the district court should allow them to intervene as defendants because the lawsuit "would force the Archivist to wrongly count them among the ratifying states and to illegally convert their rescinded ratification papers into live legal documents."

Nebraska, South Dakota and Tennessee have rescinded their ratification while Alabama and Louisiana rejected the ERA.

Citing Ginsburg again, this time from comments she made this month at Georgetown, Strawbridge and the state attorneys general wrote: "As Justice Ginsburg recently explained, 'a number of states have withdrawn their ratification [of the ERA],' so 'if you count a latecomer [like Virginia] on the plus side, how can you disregard states that said, 'We've changed our mind'?'"

In the motion, lawyers for the states said their interests in the lawsuit are "at a minimum" equal to the plaintiffs' interests. "If plaintiffs have standing to ensure their 'yes' votes are counted and the ERA is added to the Constitution, then movants have standing to ensure their 'no' votes are counted and the ERA is not added to the Constitution," the motion stated.

The states also contend that if they are allowed to intervene, they will raise defenses that may not be raised by the archivist, including whether the Constitution imposes deadlines on amendments and whether states can rescind their ratification of constitutional amendments.

Two additional lawsuits against the archivist raising similar issues involving ERA ratification are pending: one also filed by Consovoy McCarthy in the U.S. District Court for the Northern District of Alabama by the states of Alabama, Louisiana and South Dakota and the other filed in the U.S. District Court for the District of Massachusetts by Equal Means Equal, The Yellow Roses and Katherine Weitbrecht, represented by Wendy Murphy of New England Law | Boston.

Linda Coberly of Winston & Strawn

Winston & Strawn partner Linda Coberly, chairwoman of the National Equal Rights Amendment Coalition's Legal Task Force, told The Atlantic recently that Ginsburg's latest remarks expressed "a view about politics and strategy, not about the legality of any position."

"She didn't comment on the pending legislation. She didn't comment on the pending lawsuit, and that's exactly as it should be," Coberly, chairwoman of the firm's appellate and critical motions practice, said. "I wouldn't expect her to comment on a legal issue that is going to come before her."

Consovoy McCarthy has played a leading role in several major cases in trial and appellate courts, and the Supreme Court, in recent years. Working with Strawbridge on the ERA case are Cameron Norris, an associate and former Thomas clerk, and associates Alexa Baltes and Tiffany Bates.

The firm has current or completed contracts with various states, including Alaska and Louisiana. Name partner William Consovoy's standard hourly rate is $985, but the firm has offered discounts to state clients, contract records show. Strawbridge and other Consovoy McCarthy lawyers billed Louisiana $385 hourly for work on a U.S. Supreme Court case last term.

The firm has defended Trump's objections to congressional and state grand jury subpoenas aimed at his accounting firm and his family's financial dealings with Deutsche Bank. The justices will take up that dispute March 31. Lawyers from the firm also brought an unsuccessful lawsuit, now on appeal, accusing Harvard College of discriminating against Asian American student applicants.

The ERA case in Washington is pending before U.S. District Judge Rudolph Contreras of the District of Columbia.

 

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