Many conservative critics of the Equal Rights Amendment, as well as some commenters on my previous ERA posts, claim that the ERA would never be used to strike down liberal policies such as affirmative action for women, because liberal judges would interpret it to avoid this result. As evidence, they cite the interpretation of the Civil Rights Act of 1964 to permit affirmative action, despite the fact that racial preferences seem clearly inconsistent with the law.
This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today’s federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O’Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today’s presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.
It is therefore highly unlikely that the today’s judiciary would approach the Equal Rights Amendment in the same way that their predecessors treated the civil rights acts of the 1960s. Unlike in the case of the civil rights acts, where today’s conservative judges are to some extent constrained by yesterday’s liberal precedents, modern judges will have the chance to interpret the ERA on a blank slate. Even with respect to the civil rights acts, it is worth noting that the more conservative Supreme Court of the 1980s cut back on some of the liberal Warren and Burger Court precedents in this area, only to be swatted down by Congress in the 1991 Civil Rights Act. To paraphrase Donald Rumsfeld, we interpret constitutional amendments with the judges we have, not with those we had decades ago. And that will have a major impact on the judiciary’s treatment of the ERA.