For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.
Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.
Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.
Female soldiers’ ineligibility for combat roles was the basis for the court’s rejection of the equal-protection argument posed by the 1981 case, Rostker v. Goldberg. “This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups,” Justice William H. Rehnquist, not yet the chief justice, wrote for the 6-to-3 majority. “Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.”
In his ruling, Judge Miller noted that in 2016, following the Pentagon’s opening of combat jobs to women, Congress removed a proposal to extend draft registration to women from the National Defense Authorization Act. While Congress provided no official explanation for why it did so, Judge Miller noted that a group of senators opposed to expanding registration had declared that “we should not hinder the brave men and women of our armed forces by entrapping them in unnecessary cultural issues.”
“It appears,” Judge Miller continued, “that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”
Assumptions and overly broad stereotypes? Isn’t that Ruth Ginsburg speaking?
Well, yes, it is.
As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opinion declaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.
What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.
For instance, in establishing that the two men who brought the case against the male-only draft registration had standing — that they actually suffered harm from the fact that they had to register while women don’t — Judge Miller quoted a line from a 1984 Supreme Court decision, Heckler v. Mathews: “Discrimination itself, by perpetuating ‘archaic and stereotypic notions,’ can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”
Heckler v. Mathews was not one of Ruth Ginsburg’s cases; she was by that time a federal appeals court judge. But the case is in a direct Ginsburg line of descent. The phrase “archaic and stereotypic notions” comes from a 1982 opinion by Justice Sandra Day O’Connor, Mississippi University for Women v. Hogan. One of Justice O’Connor’s first opinions — she had been on the Supreme Court for less than a year — this important sex discrimination decision found unconstitutional the exclusion of men from a state-run nursing program. Any “gender-based classification,” Justice O’Connor wrote, “must be applied free of any fixed notions concerning the roles and abilities of males and females.”
For this proposition, Justice O’Connor cited a 1973 Supreme Court decision, Frontiero v. Richardson. This decision, invalidating a military benefits program’s built-in assumption that husbands could not be considered their wives’ dependents. The case was Ruth Ginsburg’s first Supreme Court argument.
I found much to admire in Judge Miller’s opinion, particularly the way he dealt with the government’s request to delay any decision in order to give time for a federal commission to come up with a recommendation to Congress on what to do about draft registration. Judge Miller responded that Congress has been debating the subject “for decades with no definite end in sight.” He said that “the court’s time and effort is likely best spent on the case at this stage, rather than at some indefinite time in the future.”
I don’t know what will happen next with draft registration. It’s not true that women now have to register, as the lead plaintiff, the National Coalition for Men, proclaims on its website, Judge Miller did not issue an injunction or dictate a remedy. The remedy for an equal-protection violation is to correct the inequality, either by placing the burden on both classes — in this instance, requiring women to register — or by eliminating registration for everyone. Judges faced with such a choice try to figure out what Congress would have intended.
The Supreme Court explained this approach most recently in an opinion two years ago by Justice Ginsburg in an immigration case concerning a statute that favored unwed mothers over unwed fathers in their ability to confer American citizenship on a child born overseas. The court’s remedy for the constitutional violation it found was to achieve equality between parents by increasing the burden on mothers rather than reducing it for fathers.
Of course, the Trump administration might decide to appeal in the draft registration case. An appeal would go to the United States Court of Appeals for the Fifth Circuit, one of the most government-friendly of the federal appeals courts. Where the government’s interest actually lies, though, is far from clear. The military has no appetite for reinstating a draft, which ended in 1973. Women now make up 16 percent of the enlisted forces and 18 percent of the officer corps. The culture wars have moved on to other targets. The courts might save Congress from itself. It’s happened before.
Still, it’s hardly out of the question that the issue would reach the Supreme Court. I’d like to think that it’s an easy case by now, even for the most conservative justices. But even if it proves possible to get a good debate going, the argument would inevitably take place on Ruth Ginsburg’s ground. Young women these days may tattoo her image on their biceps, and mothers may dress little girls in R.B.G. costumes for Halloween. But at the end of the day, as this case shows us, it’s the law that matters, the law that Ruth Ginsburg made and is making still.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.
We and our partners use cookies on this site to improve our service, perform analytics, personalize advertising, measure advertising performance, and remember website preferences.Ok
Home » Analysis & Comment » Opinion | Why R.B.G. Matters
Opinion | Why R.B.G. Matters
For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.
Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.
Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.
Female soldiers’ ineligibility for combat roles was the basis for the court’s rejection of the equal-protection argument posed by the 1981 case, Rostker v. Goldberg. “This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups,” Justice William H. Rehnquist, not yet the chief justice, wrote for the 6-to-3 majority. “Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.”
In his ruling, Judge Miller noted that in 2016, following the Pentagon’s opening of combat jobs to women, Congress removed a proposal to extend draft registration to women from the National Defense Authorization Act. While Congress provided no official explanation for why it did so, Judge Miller noted that a group of senators opposed to expanding registration had declared that “we should not hinder the brave men and women of our armed forces by entrapping them in unnecessary cultural issues.”
“It appears,” Judge Miller continued, “that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”
Assumptions and overly broad stereotypes? Isn’t that Ruth Ginsburg speaking?
Well, yes, it is.
As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opinion declaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.
What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.
For instance, in establishing that the two men who brought the case against the male-only draft registration had standing — that they actually suffered harm from the fact that they had to register while women don’t — Judge Miller quoted a line from a 1984 Supreme Court decision, Heckler v. Mathews: “Discrimination itself, by perpetuating ‘archaic and stereotypic notions,’ can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”
Heckler v. Mathews was not one of Ruth Ginsburg’s cases; she was by that time a federal appeals court judge. But the case is in a direct Ginsburg line of descent. The phrase “archaic and stereotypic notions” comes from a 1982 opinion by Justice Sandra Day O’Connor, Mississippi University for Women v. Hogan. One of Justice O’Connor’s first opinions — she had been on the Supreme Court for less than a year — this important sex discrimination decision found unconstitutional the exclusion of men from a state-run nursing program. Any “gender-based classification,” Justice O’Connor wrote, “must be applied free of any fixed notions concerning the roles and abilities of males and females.”
For this proposition, Justice O’Connor cited a 1973 Supreme Court decision, Frontiero v. Richardson. This decision, invalidating a military benefits program’s built-in assumption that husbands could not be considered their wives’ dependents. The case was Ruth Ginsburg’s first Supreme Court argument.
I found much to admire in Judge Miller’s opinion, particularly the way he dealt with the government’s request to delay any decision in order to give time for a federal commission to come up with a recommendation to Congress on what to do about draft registration. Judge Miller responded that Congress has been debating the subject “for decades with no definite end in sight.” He said that “the court’s time and effort is likely best spent on the case at this stage, rather than at some indefinite time in the future.”
I don’t know what will happen next with draft registration. It’s not true that women now have to register, as the lead plaintiff, the National Coalition for Men, proclaims on its website, Judge Miller did not issue an injunction or dictate a remedy. The remedy for an equal-protection violation is to correct the inequality, either by placing the burden on both classes — in this instance, requiring women to register — or by eliminating registration for everyone. Judges faced with such a choice try to figure out what Congress would have intended.
The Supreme Court explained this approach most recently in an opinion two years ago by Justice Ginsburg in an immigration case concerning a statute that favored unwed mothers over unwed fathers in their ability to confer American citizenship on a child born overseas. The court’s remedy for the constitutional violation it found was to achieve equality between parents by increasing the burden on mothers rather than reducing it for fathers.
Of course, the Trump administration might decide to appeal in the draft registration case. An appeal would go to the United States Court of Appeals for the Fifth Circuit, one of the most government-friendly of the federal appeals courts. Where the government’s interest actually lies, though, is far from clear. The military has no appetite for reinstating a draft, which ended in 1973. Women now make up 16 percent of the enlisted forces and 18 percent of the officer corps. The culture wars have moved on to other targets. The courts might save Congress from itself. It’s happened before.
Still, it’s hardly out of the question that the issue would reach the Supreme Court. I’d like to think that it’s an easy case by now, even for the most conservative justices. But even if it proves possible to get a good debate going, the argument would inevitably take place on Ruth Ginsburg’s ground. Young women these days may tattoo her image on their biceps, and mothers may dress little girls in R.B.G. costumes for Halloween. But at the end of the day, as this case shows us, it’s the law that matters, the law that Ruth Ginsburg made and is making still.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.
Source: Read Full Article