Somin in Legal Times: Revived Equal Rights Amendment May Surprise Supporters

If the newly revived Equal Rights Amendment (ERA), renamed the Women's Equality Amendment, becomes law, its full effect may produce some unexpected results, maintains Professor Ilya Somin in a Legal Times op-ed.

Somin points out that courts have relied on the equal protection clause of the 14th Amendment to accomplish most of the objectives of the original ERA. If the ERA passes, says Somin, laws with gender classifications will likely be subjected to the strict-scrutiny standard. Somin expects that application of that standard would result in unintended consequences, such as the elimination of government affirmative action for women and the invalidation of public school programs providing targeted assistance to African-American boys.

Be Careful What You Wish For, Legal Times, June 4, 2007. By Ilya Somin.

"In the 1960s and '70s, most federal judges were politically liberal and skeptical of textualism. As a result, they were sometimes willing to deviate from the text of the law to reach liberal results.

"Today, the judiciary is largely made up of judges appointed by conservative Republican presidents who tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to legal interpretation. Almost 60% of today's federal courts of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice Sandra Day O'Connor by Justice Samuel Alito Jr., the Supreme Court now has a majority that is generally hostile to affirmative action.

"Unlike their predecessors several decades ago, today's judges are likely to enforce the conservative implications of the ERA as stongly as the liberal ones, if not more so."

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