Ruth Bader Ginsburg Justice Ruth Bader Ginsburg speaking in September in Washington. Credit: Diego M. Radzinschi / ALM

The campaign to include the Equal Rights Amendment in the U.S. Constitution should "start over," Supreme Court Justice Ruth Bader Ginsburg said Monday.

"I would like to see a new beginning," Ginsburg said at an American Bar Association event celebrating the 100th anniversary of the 19th Amendment, which established that the right to vote could not be denied "on account of sex."

Ginsburg's statement could complicate the new effort to revive the ERA in the wake of Virginia's recent ratification of the amendment, the 38th state to do so. Virginia, Illinois and Nevada have gone to court to assert that the amendment, approved by Congress in 1972, has, in fact, been ratified, even though the Justice Department claims that the deadline for ratification has come and gone. Several other federal courts are also weighing the status of the amendment.

"There's too much controversy about latecomers [such as] Virginia long after the deadline passed," Ginsburg said at the event, which took place at Georgetown University Law Center. "Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, 'We've changed our minds?'"

Ginsburg's long history and preeminence on the issue of women's rights and the ERA may make her viewpoint difficult to ignore as the revival effort continues. Her comments also quickly drew criticism for setting forth her opinion on the matter as litigation, which could reach the Supreme Court, is pending.

"There is little chance ERA supporters would file a motion to recuse Justice Ginsburg. Such a move would be an apostasy," constitutional scholar Josh Blackman wrote at The Volokh Conspiracy Monday night. "But I don't know how RBG could approach this case neutrally."

During the event Monday, Ginsburg insisted that the ERA is needed, even though protection for women's rights have been established in other ways.

"I've been asked many times, 'Well, haven't you, through the vehicle of the 14th Amendment's equal protection clause, gotten to about the same place where you would be with the ERA?' And my answer is, 'Not quite,'" Ginsburg said. "Every constitution in the world, written since the year 1950, even Afghanistan, has the equivalent of an equal rights amendment, and we don't."

She added, "It should be right up there with free speech, freedom of religion, and discrimination based on race or national origin. So I think, you know how the Constitution says, 'We the people, in order to form a more perfect union,' the union will be more perfect when that simple statement that men and women are persons of equal citizenship stature is part of our fundamental instrument of government. So even if the argument is it's largely symbolic, it is a very important symbol."

Ginsburg also seemed to acknowledge that achieving consensus on this and other issues may be difficult. "Yes, there are things that make us all worry, like a dysfunctional Congress, the parties so sharply divided," she said. "I am hopeful that there will be leaders on both sides of the aisle who will say it's time to get together and work for the good of the country. That is my hope and I would be content if I could see it happen in my lifetime."

Judge McKeown Judge M. Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit. Credit: Jason Doiy/ ALM

Ginsburg's comments came in a dialogue with Judge M. Margaret McKeown of the U.S. Court  of Appeals for the Ninth Circuit, who chairs the association's commission celebrating the 19th Amendment's anniversary.

ABA President Judy Perry Martinez also spoke, warning that even though voting rights cannot be denied because of race or sex, "many voters still face ballot restrictions. New constructs evolved, some by misguided if not malignant design, to strip away the right to vote from otherwise eligible persons. Other challenges continue today, including accessibility to polling places for people with disabilities."

 

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