V.M.I. AND THE FIVE
The fight for the rights of blacks and women can be compared to a mountain climb, with progress being made in increments, rather than leaps and bounds. This pattern of small victories, built upon previous victories, has traditionally proven to be reliable with no major backsliding. This lack of downward mobility in 14th amendment claims is due in large part to the entitlement nature behind the decisions. Although it seemed unlikely at the time with a six justice majority, Justice Ginsburg’s majority opinion in United States v. Virginia (1996) has broken that mold by attempting to go too far too fast, a pace against which other Justices rebelled.. After the Virginia decision it was speculated that system of gender classification could withstand the new level of review. The Court proved otherwise, however, in upholding a gender classification found in naturalization laws. As an advocate before the Court, it was to Ginsburg’s advantage for her reach to exceed her grasp, but as a Justice in United States v. Virginia she reached too far. A backslide for the standard of review applied to gender classifications, and injects instability into what had seemed an established area of law.
In order to understand recent events it must be noted that the Justices cannot be understood by means of their written opinions alone, as those decisions must be read in light of their personal ideology, the line of precedent in the area of law at issue, as well as their judicial ideology. Ginsburg can most closely be identified with the egalitarian branch of feminism, which believes there should be no distinctions based on gender within the law. This is not to say they believe men and women are interchangeable in every fashion, but rather that the law should be gender neutral. Equal protection, rather than special protection, is the goal of an egalitarian feminist (Rosen, par. 2). This stance is evident in Ginsburg’s writings both before and after her judicial appointments, but is even more clearly demonstrated in her work with the American Civil Liberties Union’s Women’s Rights Project. During her tenure as Director of that project she led the ACLU in challenges against both regulations that disadvantaged women, such as in Fontiero v. Richardson (1973), as well as regulations that sought to protect women, often using gender as a shorthand for economic need, as in Weinberger v. Wiesenfeld (1975).
Running throughout Ginsburg’s briefs for her ACLU cases, as well as the oral arguments she presented before the Court is a call for the Court’s application of strict scrutiny in cases of gender classification, the same standard of review used against racial classifications (Olney, par. 26). Despite her litigation strategy, and in spite of some recent hopeful signs, a majority of the Court has never adopted such a standard, coming closest in the four-justice plurality decision in Fontiero.
While having been one of the most outspoken champions for the application of strict scrutiny when she appeared before the Court as an advocate, Ginsburg has never written an opinion—majority, concurring or dissenting—that calling for such a standard of review. This highlights the fact that understanding Ginsburg’s judicial philosophy and judicial role orientation is key to understanding her record on the Court. Whereas she was a judicial prophet with the ACLU, she has taken the role of judicial priest on the bench (Rosen, par.20). Repeatedly, in her writings and public remarks, she seeks to define herself as part of a legal tradition, referring to those Justices and decisions before her as “pathmarking.” This does not mean that the law is stagnant and unchanging to Ginsburg, but rather that change in the law should be brought on in gradual steps, through slowly altering precedent, rather than with quick radical shifts. “Doctrinal limbs too swiftly shaped” Ginsburg says, “may prove unstable (1992, Ginsburg).” Gradualism is also preferable to quick shifts for Ginsburg because it allows opportunity for the courts to engage in “dialog” with the legislative body on contentious issues rather than deciding them unilaterally. All of this underscores the fact that while Ginsburg’s underlying views remain unaltered, she draws a sharp distinction between her role as an advocate and that of a judge (Ray, par. 82).
With this eye towards precedent, it is important to understand the previous momentum of the Court. Beginning with Reed v. Reed (1971), the Court has in halting steps raised the level of review applied to cases dealing with gender classification. The most recent major milestone has come in Craig v. Boren (1976), which established the use of intermediate scrutiny in gender classification cases. This form of “heightened scrutiny” has traditionally been a two-pronged test requiring there be an important governmental objective to a classification based on gender, and that the means of the classification are substantially related to the stated objective (1978, Ginsburg, pars. 88-90).
This was the position of the Court when Ruth Bader Ginsburg was appointed in 1993. While her own notions of judicial modesty prevented her from simply attempting to make gender a suspect classification at the first opportunity, it did not stop her from going farther than others had before. In the view of many, her first major opinion in this area, United States v. Virginia (1996), was intended to bring the Court closer to being able to take that final step and declaring gender, like race, to be a suspect classification.
United States v. Virginia
In United States v. Virginia, more commonly know as the VMI case, the Supreme Court took up the question of whether Virginia's creation of a women's-only academy, as a comparable program to the male-only Virginia Military Institute, was enough to satisfy of the Fourteenth Amendment's Equal Protection Clause caused by the VMI’s. Having had their male-only admissions policy found unconstitutional by the Fourth Circuit Court, Virginia proposed to create the Virginia Women’s Institute for Leadership (VWIL) as a parallel program for women. Despite the fact that the Fourth Circuit Court had noted the different levels of prestige between the two schools, they found the VWIL to be “substantively comparable” and sufficient to remedy the constitutional violation of VMI. While writing for the majority, Ginsburg reversed the lower court’s findings on the remedy proposed by Virginia, and in three key areas moves the Court closer to adopting strict scrutiny (518 U.S. 515, 1996).
First, her heavy reliance upon the phrase “exceedingly persuasive justification” is significant. In effect, Ginsburg is attempting to add a third prong onto the intermediate scrutiny’s two-prong test. By requiring states to show an “exceedingly persuasive justification” for maintaining a gender-based classification this ruling creates a standard of review classified by some as “intermediate scrutiny plus.”
Secondly, Ginsburg’s insistence that the objective, such a classification, must “be genuine, not hypothesized or invented post hoc in response to litigation” is representative of the general increase of scrutiny represented in VMI (518 U.S. 515, 1996). Citing no previous precedent what Ginsburg portrayed as an established standard of review in this area is indicative of this increased level of scrutiny. Ginsburg uses this more searching analysis in rejecting Virginia’s proffered explanations, finding that “neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options.”
Third, Ginsburg’s focus on the intangibles in the remedy proposed by Virginia is important because of how she seeks to parallel its remedial process to the case to Sweatt v. Painter (1950). Sweatt, a black man, had applied for admission to the University of Texas Law School, but due to a law restricting access to the University to whites only he was automatically rejected. When Sweatt challenged this law in court, the University attempted to remedy the constitutional challenge by providing separate, but equal facilities for black law students (339 US 629, 1950).
While it is not difficult for one to draw similarities between these two cases, Ginsburg’s doing so becomes significant because she associates racial discrimination, which is subject to strict scrutiny, with gender discrimination. That she is seeking to tie the two cases together is undeniable; she even cites Sweatt as the controlling precedent in striking down the proposed second school, saying that the ruling is “in line with Sweatt.” In Sweatt, as well as in VMI, there is a focus not only on the tangible assets of the two schools, but also evaluation of the intangibles. Quoting from Sweatt, Ginsburg notes that:
Those qualities which are incapable of objective measurement but which make for greatness in a school, including reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige (518 U.S. 515, 1996,
internal quotation marks omitted).
Further, the paralleling to Sweatt is a significant indicator of Ginsburg’s intent in VMI. Sweatt was decided in a line of cases that not only gutted the separate but equal doctrine, but that also found race to be an inherently suspect classification deserving the most searching of scrutiny in all cases. Perhaps this desire for a gradual rise to suspect classification is the truest parallel to Sweatt.
In all of these ways the VMI case represents a ratcheting up of the level of scrutiny applied to gender discrimination. While there is some scholarly debate over the meaning of Ginsburg’s majority opinion, and if in fact it was intended to change the level of scrutiny to classifications based upon gender, one only has to look to the other two opinions present in the case to see that this belief was at least held by two members of the court.
In his opinion concurring with the judgment of the court, Chief Justice Rehnquist clearly recognizes, and disagrees with, the court’s departure from traditional intermediate scrutiny, arguing that:
While terms like “important governmental objective” and “substantially related” are hardly models of precision, they have more content and specificity than does the phrase “exceedingly persuasive justification.” That phrase is best confined, as it was first used, as an observation on the difficulty of meeting the applicable test, not as a formulation of the test itself (518 U.S. 515, 1996).
Similarly, as the sole dissenter, Justice Scalia also finds that “the Court proceeds to interpret ‘exceedingly persuasive justification’ in a fashion that contradicts the reasoning of Hogan and our other precedents.”
From such a de facto standard of intermediate scrutiny, plus it seemed unlikely that any gender classification within the law would be able to stand, and had come the Court much closer to accepting the argument that gender should be a suspect classification. Ginsburg’s view of this case “as the culmination of the 1970s endeavors,” underscores this point (2002, Ginsburg). But while it seemed clear to the two Justices who did not join the majority opinion that VMI did represent a significant alteration of the court’s current direction in gender classification cases, what was not yet apparent was if the six-justice majority were all of that same mind as well.
Miller v. Albright
Despite being hailed by Ginsburg as a significant move towards the culmination of all of her earlier efforts on women’s rights, the Virginia decision did not have the landslide effect hoped for in future decisions. Just two years later, another case involving gender classification was brought before the Court in Miller v. Albright. The Miller case centers on the citizenship claims of Lorelyn Miller, who was born in the Philippines to a Filipino national woman and an American soldier. Upon applying for US citizenship, citing her American father, she was rejected by the State Department for failing to meet the statutory requirements. At issue here is 8 U.S.C. Section 1409, which governs the claims of children born out of wedlock outside of the United States to an American parent and a foreign national. Specifically the basis for the suit was a challenge to the differing standards of determination for a child of an American father, and a child of an American mother.
For although section 1409(c) established at birth the citizenship of an illegitimate foreign-born child whose mother was an American citizen, the State Department did not provide the same instant citizenship for children of American fathers, such as Miller. Instead four preconditions were placed on the children of American fathers before their citizenship claims would be accepted:
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years–
(A) the person is legitimated under the law of the person’s residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.
Since Miller had not completed the requirements prior to turning 18 her application was rejected. This refusal to treat the children of citizen fathers and citizen mothers alike formed the claim of a denial to the father’s due process inherent in 8 U.S.C. Section 1409, and became the central question before the court in Miller. While no majority opinion emerged, the judgment of the Court in upholding the gender classification—one of the last remaining in the law—was a blow against the more stringent scrutiny that VMI sought to create, though not a substantial one.
The three opinions which sustained the statute are as follows: Stevens and Rehnquist in the judgment of the Court upheld the statute on its face they used language of intermediate scrutiny, as articulated in Boren, to find that the classification survived that heightened standard of review. O’Connor and Kennedy concur with the judgment of the Court, although they did not reach the merits of the case. Rather they found that Lorelyn Miller did not have standing to challenge the classification; only her father in this case did, and since he had been removed from the suit by a lower court in Texas, the suit lacked standing. Finally Scalia and Thomas concur on the grounds that Congress’ powers are plenary in this area and that the “Court has no power to provide the relief requested” (523 U.S. 420, Scalia).
In the dissent, Ginsburg and Breyer, joined by Souter, argue for striking down the classification on the grounds that had been set forth in VMI (523 U.S. 420, 1998). While not having enough votes to strike down the statute, Ginsburg still sates her belief that the classifications here are based upon the traditional stereotypes of the sexes and remains confident that a majority of the court would have supported that decision had the unrelated question of standing not arisen. O’Connor’s opinion, although part of the fractious coalition upholding the statute, supports Ginsburg’s belief. For though O’Connor does not reach the petitioners’ claims, she does not in dicta that, although she joins the judgment of the court in upholding the statute, she “does not share Justice Stevens’ assessment that the provision withstands heightened scrutiny.” Thus, it can be reasoned that without the question of standing, the classification would have been struck down in a 5-4 decision. Perhaps of greater significance than the actual judgment of the court in this case is the defection of Stevens from the VMI majority. The importance of that shift is better understood when viewed in conjunction with a nearly identical case brought before the court three years later, one which lacked the divisive question of standing that came before the court in Miller.
Tuan Anh Nguyen v. INS
Nguyen deals with the same statutes as does Miller, and is similarly situated, except that the question of standing which had fractioned the Miller decision does not arise. . In many ways, Nguyen was thought to provide a stronger challenge to the statute because, unlike in Miller, the citizen-father had been the primary caretaker of the petitioner. In her Miller dissent, Ginsburg had expressed confidence that the statute would have been struck down without the question of standing, but this belief was proved to be incorrect by Nguyen. With that consideration no longer before the two Justices who previously concurred in the Miller judgment, they split. O’Connor joined the Miller dissenters and Kennedy joined the majority in the reasoning as well as the judgment. Also in a shift from Miller, Scalia and Thomas join the reasoning of the Court in this case rather than merely joining the judgment.
While Miller could be explained as an anomaly in the precedent, which VMI seemed to set, that explanation no longer seems plausible in light of Nguyen’s affirmation of the Miller decision. Since these cases could no longer be seen as anomalies, those who were seeking to still support the VMI decision, or those who were seeking to find continuity in the court’s 14th Amendment jurisprudence, now attempted to find distinguishing grounds that could explain the two divergent lines of precedent. But despite this desire to distinguish VMI and create continuity within the law, none of the arguments put forth can be substantially distinguish these latter cases..
First, it has been proposed that whereas the VMI case was about gender differences in the abstract--the different learning styles and disposition-- the Miller case is about their differences in the biological realm, specifically pregnancy (Rogus, par.15). Childbirth, unlike educational barriers, is uniquely sexual in its origins. This sexual component is recognized by those critics of §1409, a statute that deals exclusively with unmarried mothers, who view the statute as a punishment for “casual sex,” a punishment that is disproportionately placed upon noncitizen mothers (Weinrib, par.54). While this can no doubt be felt in the undercurrent of the decision, it does not create a foundation to truly separate the two cases and their two divergent approaches.
Secondly, those who support the outcome of this case argue that it is further distinguished by the fact that in VMI the court confronted a classification that placed a higher burden upon females than males whereas the classifications in Miller and Nguyen placed the burden of the classification upon males rather than females. While this belief that the Court has differing standards for discrimination cases where men are disadvantaged, and cases has some bases in the early case law it cannot be said to survive today. Both Hogan and J.E.B. v. Alabama ex Rel. T.B. (1994) implicitly reject this notion of differing standards of review, stating that those cases rest upon a right “that extends to both men and women” equally (511 U.S. 127, 1994, Blackmun). While not issuing as pointed a rebuke to this notion of differing standards as is present in J.E.B. the majority in Nguyen also used a gender-neutral trigger in their application of intermediate scrutiny, noting that it is used when a “gender-based classification” is present (533 U.S. 53, 2001, Kennedy)
The plenary power doctrine has also been proposed as justification for the majority not strictly adhering to the tenets of the VMI decision. And distinguishing of the INS cases from the VMI precedent supporter of the position argue that the court’s use of a less searching review, such as rational basis, should be expected in cases that deal with areas that fall under Congress’ plenary powers, such as in matters concerning immigration and naturalization (Stobaugh). This argument must likewise be discarded as being the main impetus behind the decision, for the court itself explicitly discards it from the reasoning. While this plenary powers doctrine is at the heart of Scalia’s concurring opinions in both Miller and Nguyen, in both cases the opinion only gained two votes, Scalia and Thomas.
Rather than being distinguished from VMI, Nguyen and Miller represent a backlash within the court, an attempt to revert to pre-VMI gender discrimination jurisprudence. Once again, the language of intermediate scrutiny that is applied here is from Craig v. Boren, rather than from Ginsburg’s opinion in VMI. Although the language of an intermediate review is present, the dissenters would argue that in fact the majority is actually using some less stringent standard that fell closer to rational basis (Stobaugh, par. 29). In her dissent, O'Connor argued that, as in rational basis review, the Court hypothesized governmental interests and failed to show that those interests were the actual purposes in enacting the statute. Under intermediate scrutiny it is the government that must bear the burden of justifying such classifications; it is only for the Court to weigh such justifications, not for them to hypothesize interests that the government itself has not offered. This criticism of the majority is further strengthened by O’Connor’s citing VMI’s instance that a rationale must be genuine and not invented post hoc in response to litigation. “[A] far less than the rigorous application of heightened scrutiny that our precedents require,” is how O’Connor characterizes the majority opinion (533 U.S. 53, 2001, O’Connor dissenting).
The dissenting Justices also argue that even if the State was found to have sufficient reason to insist on such a difference of treatment, that the majority did not sufficiently examine the means the government had chosen to accomplish these goals closely enough. The idea that the interests advanced gender classification could have been achieved through a gender-neutral alternative is not something the majority opinion considered. Requiring regular contact between the citizen parent and the child for a certain period of time; dismissing compliance with the formal requirements under the statute once the father-child relationship is established; or requiring both parents' acknowledgement of the birth are all gender neutral. The dissenters propose to accomplish the same goals (Stobaugh, par. 33). Once again, the majority's failure to cite these gender-neutral mechanisms leads the dissenters to suspect a rational basis, rather an intermediate scrutiny. While the majority rejects these gender natural approaches because “fathers and mothers are not similarly situated with regard to the proof of biological parenthood,” and because of these differences should not necessarily be treated equally (533 U.S. 53, 2001, Kennedy). O’Connor challenges this position, while noting the unique opportunity that birth provides mothers and not fathers for establishment of paternity, she goes on to differ from the majority that a mother’s birth relation, while uniquely variable, is not necessarily uniquely variable to the INS. Since mothers are not any more uniquely positioned in regard to the INS than fathers are, the dissenters find no basis for differing gender standards and characterize the majority’s analysis in this area as dismissive (533 U.S. 53, 2001, O’Connor dissenting).
The phrase “exceedingly persuasive justification,” so key to Ginsburg’s VMI case, which had enough Justices join to give it the weight of precedent, only appears twice in Kennedy’s decision here, and neither appearance is sustentative as in VMI. The first time it appears it is only to say that the "exceedingly persuasive" standard had been met. And although in that instance he is stating that the proportion between the means employed and the “important end” is exceedingly persuasive, he offers no rationale on how he came to that conclusion.
The second time, it is even more explicitly against Ginsburg’s use of the phrase, reducing it once again to a definition rather than a third prong to the heightened review test. This takes it back to the pre-VMI understanding that an “exceedingly persuasive justification” need not be established on its own, but rather is shown when a classification serves an important governmental objective, and is closely related to that objective (533 U.S. 53, 2001).
Such examples show that in many ways, Miller, and even more so Nguyen, represent a narrowing of precedent in much the same way as Ginsburg stretched precedent in VMI (Stobaugh, par. 37). This is the attempt of five Justices to back the Court away from declaring sex a suspect classification. This backlash against the VMI heightened stance is further evidenced in the voting shift between Miller and Nguyen. The shift of O’Connor from the majority coalition in Miller to the dissenters in Nguyen is not noteworthy, however, she is in effect deciding two different questions of law, judging on standing in Miller, and then judging on the statute in Nguyen. Despite Kennedy’s similar renderings the two cases, it is significant that he remained with the majority because he was part of the original six Justice VMI decision.
Kennedy’s switch from his VMI position to his authoring the majority opinion in Nguyen is more difficult to understand that Stevens’ early defection, after all, not only did Kennedy join VMI, but he also joined O’Connor’s concurring opinion in Miller that included in dicta her intention to strike the statute down when the question of standing was not present. While such a shift could not have been predicted from these cases Kennedy’s concurring opinion in J.E.B. does provide some foreshadowing for this switch, if only in retrospect. It is significant that Kennedy quotes from Rehnquist’s Dissenting opinion in Craig concerning to the meekness of the intermediate scrutiny test. When confronted with it’s application to future cases, it is likely that Kennedy viewed VMI as adding to that uncertainty in the standard. It is also of note that Kennedy writes separately in J.E.B. concurring in the judgment of the court but following a differing line of precedent to reach that conclusion. Conspicuously lacking from Kennedy’s opinion is reference to Personnel Administrator of Mass. v. Feeney (1979), from which the phrase “exceedingly persuasive justification” has its genesis. The omission of this phrase so key in VMI can also be seen as a sign of the uneasiness which must have grown leading up to Nguyen.
While the departure of Kennedy and Stevens from their VMI stances is significant, the most telling sign of the backlash that Nguyen presents is the voting shifts of Scalia and Thomas between the two cases. Although in the majority in both cases, it is only in Nguyen that Scalia and Thomas not only join the judgment of the court but reach the petitioner’s equal protection claims as well. Though they issue a concurring opinion that states the court is powerless to provide relief in the case they also sign onto Kennedy’s majority opinion that explicitly rejects their own argument in the concurrence. While Miller certainly muddled what was seemingly a well established area of law, it did not technically change the precedent set by Ginsburg in VMI., despite the five Justice majority there was no majority present in regard to the reasoning, only a two Justice judgment.
Scalia and Thomas’s assent to that opinion would not have given it the force of precedent. It would have still been one vote shy and VMI would still control. But Kennedy joining the judgment created a majority and thus provided an opportunity to alter the direction of precedent. This shift provided the impetus for Scalia and Thomas, while not abdicating their early stance on the plenary powers of Congress, to join an opinion that stood in direct opposition to their own.
That two Justices would join the reasoning of the Court that they had previously rejected, in a similarly positioned case is clear evidence of their desire to change the line of precedent, a backlash against the decision in VMI. The fact that the majority also seems to be applying a basement level of intermediate scrutiny, if not rational basis review, is further evidence of the backlash.
But the blame for this recent juggling of precedent cannot be laid at the feet of the Nguyen majority alone, for Ginsburg is also to blame. If Ginsburg had written more modestly in VMI, striking down Virginia’s refusal to admit women on the traditional intermediate scrutiny test alone, she still could have accomplished much. Most notably it would have brought Chief Justice Rehnquist into the majority, providing a strong six Justice majority to build future cases upon. It is reasonable to believe that such a coalition would have proven more cohesive than the VMI majority because Rehnquist, Kennedy and Stevens would not have been drawn away by the need to reign in VMI. While such a decision would not have been as strong as the one that was handed down, it would have been better in the long run, allowing the Court to continue its forward momentum rather than backsliding and injecting significant uncertainty into this area of law. The standard intermediate scrutiny test, consistent with the language and application of Craig, appears to be stronger than the test that was applied Nguyen.
Also, the women’s movement has previously been able to rely upon past victories, that assurance is no longer intact in the wake of these recent decisions. Just as the majority of the Court is ignoring the precedent set in the VMI case, so O’Connor’s dissent seeks to nullify the majority decision in Nguyen:
No one should mistake the majority's analysis for a careful application of this Court's equal protection jurisprudence concerning sex-based classifications. Today's decision instead represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny to such classifications to determine whether a constitutional violation has occurred. I trust that the depth and vitality of precedents will ensure that today's error remains an aberration (533 U.S. 53, 2001, O’Connor dissenting).
We see here the most disturbing trend set in motion by Ginsburg’s decision: the general willingness of the Justices not only to dissent, but also to ignore those contrary decisions that have the force of precedent. Both Miller and Nguyen were written as though VMI did not exist, or as though it did not represent an important shift in the Court’s treatment of the issue. By trying to reach too far too fast, Ginsburg not only caused a backlash against heightening the standards applied to gender classification cases, she also caused a destabilization of the court’s reliance upon precedent, an adherence which is paramount to Ginsburg’s own jurisprudence.
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J.E.B. v. Alabama ex Rel. T.B. (1994) 511 U.S. 127
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Tuan Anh Nguyen v. INS (2001) 533 U.S. 53