Perhaps they hope that some gratuitous conservative-bashing will distract their political allies from what they are saying.
Susan Matthews and Mark Joseph Stern write in Slate that “there are obvious reasons to be frustrated by conservative efforts to scorn ERA revival as a brazenly unconstitutional joke.” But that’s exactly what the revival is.
The key problem: Congress proposed the amendment in 1972, stipulating that the constitutionally required 38 states would have to ratify it within seven years. Only 35 did. ERA proponents used a constitutionally dubious gambit to extend the deadline for three more years, but they didn’t get any more states. Until 2017-2020, when they got three more states to ratify it — decades too late. Some activists are trying to get the national archivist to declare that the amendment has been ratified, notwithstanding this pesky detail. Then, they fantasize, the courts will treat it as a valid amendment and use it to strike down various policies and impose others.
Matthews and Stern do not favor this strategy. They recognize some of its absurdities. They acknowledge that Ruth Bader Ginsburg repeatedly noted that advocates of the ERA would have to start over, getting two-thirds of each chamber of Congress to propose it anew and then garnering 38 ratifications. While they claim that “reasonable people can disagree about whether there’s a lawful path forward for the amendment right now,” their hearts aren’t in that proposition enough even to outline what a reasonable case for having the national archivist amend the Constitution would look like.
Instead they make two points that don’t amount to such a case: The Article V process for amending the Constitution has been stretched before, and there is precedent for ignoring the decisions of five states that rescinded their ratifications. The first point does not justify pretending that Congress put no time limit into its resolution proposing the amendment. And that’s the basic problem, not the five rescindments. Note that the article they link in labeling conservative arguments about the amendment “frustrating,” which is by me, was agnostic about whether states can rescind their ratifications.
Matthews and Stern say that getting the archivist on board would not achieve anything.
The Supreme Court is not occupied by reasonable people; it is occupied by a far-right Republican majority that just overturned Roe v. Wade. Even Ruth Bader Ginsburg did not believe that a handful of states could drag the ERA across the finish line decades after the deadline. But we are asked to believe that John Roberts will? How about Clarence Thomas and Sam Alito? It is impossible to imagine these six jurists brushing aside so many procedural regularities in order to ratify the ERA by judicial decree.
The Republican justices would of course be right to reject this maneuver to counterfeit the ratification of a constitutional amendment. The authors very nearly admit as much. But they can’t just come out and say that the justices would be right, or that those conservative efforts to portray the activists’ strategy as an unconstitutional joke are right too. Perhaps they hope that some gratuitous conservative-bashing will distract their political allies from what they are saying: that those allies, by waging this campaign, are acting like lunatics.