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Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.
In Reed v. Reed (1971), a case that Ginsburg helped litigate, the Supreme Court held for the first time that the Constitution limits the government’s ability to discriminate on the basis of gender. Over time, the Court gradually expanded this holding, eventually concluding that “a party seeking to uphold government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification.”
Yet while these decisions are now firmaments of American constitutional law, they were controversial among conservatives for many years. As a young lawyer working in the Reagan Justice Department, for example, future Chief Justice John Roberts wrote several memos and other documents suggesting that these anti-gender-discrimination decisions represent “an unjustified intrusion into legislative affairs.”
The Supreme Court currently has a 6-3 conservative majority, Roberts is widely considered the most moderate member of that majority, and many of the conservative justices have shown a disregard for certain precedents — including Kavanaugh. So it was far from clear that at least five of the current justices would vote to uphold the Court’s gender equality decisions if confronted by a case challenging those decisions. Until today, there appeared to be a real risk that Ginsburg’s legacy could be overruled by a conservative bench.
But that risk now appears greatly diminished, thanks to a move by Justice Kavanaugh.
On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.
That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.
In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.
Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.
So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.
That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.
The Court’s gender equality decisions, briefly explained
As mentioned above, the Court did not hold that gender discrimination can violate the Constitution until the early 1970s. That’s likely because of a conflict between the 14th Amendment’s text and the historical context that led to the amendment’s ratification.
The 14th Amendment prohibits states from denying “to any person within its jurisdiction the equal protection of the laws,” and, as the Court held in Bolling v. Sharpe (1954), the Fifth Amendment imposes these limitations on the federal government as well. This reference to the “equal protection of the laws” is quite expansive, and could potentially be read to prohibit many forms of discrimination.
But the 14th Amendment was also ratified in 1868, just a few years after the United States ended a civil war fought over slavery. The original purpose of this amendment was to ensure racial equality, especially for formerly enslaved people, not to protect women from discrimination.
The Supreme Court squared this circle by holding that the Constitution places fairly significant limits on the government’s ability to discriminate on the basis of gender, but that these limits are less strict than the limits imposed on race discrimination.
When the government engages in race discrimination, its actions must survive a test known as “strict scrutiny,” which, as its name implies, is very hard to overcome. To prevail in a race discrimination case, the government must show that such discrimination is “precisely tailored to serve a compelling governmental interest.”
Gender discrimination, meanwhile, is only subject to a test known as “intermediate scrutiny” — which, as its name implies, is less rigorous than strict scrutiny. The Court initially applied this somewhat weaker test to laws that engage in gender discrimination in Craig v. Boren (1976). Later decisions established that the government must have an “exceedingly persuasive justification” for gender discrimination — so laws that discriminate on the basis of gender are still treated with a fair amount of skepticism — but the Court has never applied strict scrutiny to gender discrimination cases.
Many conservatives resisted this compromise approach to gender discrimination cases, however. As recently as 2011, Justice Antonin Scalia argued that lawmakers may enact laws that treat men differently from women. “Certainly the Constitution does not require discrimination on the basis of sex,” the late justice said in a decade-old interview. “The only issue is whether it prohibits it. It doesn’t.”
In 1981, future Chief Justice Roberts penned a draft article explaining the conservative objection to cases such as Craig. “Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment,” Roberts wrote. But “extension of heightened scrutiny to other ‘insular and discrete’ groups ... represents an unjustified intrusion into legislative affairs.”
Roberts, in other words, took the position that the 14th Amendment must be read exclusively in light of its narrow historical purpose — to protect against race discrimination — and that its equal protection guarantee should not be applied to gender (or any other form of) discrimination.
Roberts, it should be noted, wrote these words in a draft article prepared for publication by his boss, then-Attorney General William French Smith. So it’s unclear whether Roberts was expressing his personal views or the views of his superiors. But the young Roberts also wrote several other documents suggesting that he disagreed with decisions like Craig, and several women’s groups criticized his nomination to the Supreme Court, in part due to fears that he would overrule these decisions.
In any event, it now appears that at least one member of the Court’s six-justice conservative majority is unpersuaded by the conservative critique of decisions like Craig. Justice Kavanaugh’s decision to join Sotomayor’s opinion in the Selective Service case is significant because it signals that at least one Republican appointee to the Supreme Court will vote to strike down laws and policies that discriminate on the basis of gender.
So what does this mean for the future?
If the Court does hear a case in the future asking it to overrule decisions like Craig, Kavanaugh’s vote is not enough to prevent that outcome. Though the Court’s three liberal members would undoubtedly reject an attack on Craig and similar cases, those three liberals plus Kavanaugh only add up to four of the Court’s nine votes.
But there’s also good reason to believe that at least one of the remaining five justices would reject an attempt to toss out decades of precedents establishing that the Constitution frowns upon gender discrimination. Although Roberts is very conservative, he’s also more cautious about overruling precedents than his other conservative colleagues. Indeed, last June, he broke with those colleagues and voted to strike down an anti-abortion law because the law was nearly identical to one that the Court had already declared unconstitutional.
Whatever Roberts may have thought about gender discrimination and the Constitution back in the Reagan years, he’s likely to be more cautious today about striking down a line of decisions that stretch back half a century.
As a law professor, Justice Amy Coney Barrett also warned that there are certain past precedents that “no serious person would propose to undo even if they are wrong,” and, in her brief time as a justice, Barrett has occasionally broken with the rightmost faction of her Court. So it’s also possible that she would vote to preserve the Court’s gender discrimination decisions.
This is not to say that feminists should heave a sigh of relief and expect the Court to preserve every past decision that advances women’s equality — if you expect Kavanaugh or Barrett to vote to uphold Roe v. Wade, or if you expect Roberts to cast another vote for abortion rights in the future, then you should be prepared to be gravely disappointed.
But, at the very least, Kavanaugh’s move in the Selective Service case suggests that some of the most important feminist victories of the past several decades will not be overruled.
