What does judge Bett Kavanaugh think of the precedent? Here’s another clue | Staff columnists


As the name “intermediary” suggests, the doctrine was a kind of semi-victory for women’s rights advocates like then-professor Ruth Bader Ginsburg when they argued cases in court in the 1970s. and 1980. Feminist lawyers wanted the court to apply strict review, its highest and strictest form of review, to discrimination based on sex. Burger’s court would not go that far, reserving a strict review for discrimination based on race. Nonetheless, the doctrine of intermediate control proved strong enough to give feminists many of the victories they wanted.

As Ian Millhiser notes in a helpful column, the fact that Kavanaugh joined a Sotomayor review in which she cites cases setting the mid-review standard means he’s unlikely to vote in the future to change. this standard. In this sense, he joined Sotomayor in reaffirming the previous one.

But that’s only half the story. In the opinion, Sotomayor also criticized a Supreme Court precedent: the 1981 decision Rostker v. Goldberg in which the judges upheld the exclusion of women from enrollment in the project and stated that this did not violate equality of protection because women were “excluded from the fight” and would not be necessary in a project in case of war. Since 1981, Sotomayor wrote, “the role of women in the military has changed dramatically.” Women are now used in combat in a wide variety of roles.

Sotomayor – and Kavanaugh – therefore strongly implied that the 1981 precedent should be overturned because circumstances and attitudes have changed. The opinion concluded by saying that it was not necessary for the Supreme Court to hear the case now, as Congress could amend the law that governs the project, the Selective Service Act, in the near future.

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