Per ethics rules, judges are not supposed to lobby at all, and certainly not on laws that they themselves will rule on. But the chief justice took a very public stand against the legislation, claiming it would flood the federal courts with “a whole host of millions of domestic relations disputes” and “be invoked as a bargaining tool within the context of divorce negotiations”—implying that women would lie about violence in divorce proceedings.
After the Civil War, the Supreme Court cut back on the meaning of equality under the 14th Amendment, creating a series of precedents that would support segregation in the South for almost a hundred years. As a result of these rulings, Black Americans could sue to declare a law unconstitutional or a state official’s actions unconstitutional, but private individuals and entities were not covered under the amendment.
The work done by Ginsburg focused on state laws that expressly discriminated—laws that, for instance, prohibited women from administering estates. Such laws were actions by the state.was different: The question was whether Congress had the power to create a federal civil rights remedy based on states’ failure to act to remedy gender discrimination.
Of course, that logic is as tortured in the 21st century as it was in the 19th. Even Rehnquist recognized Brzonkala’s injury, writing, “If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States.
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