Re-viewing History: The Use of the Past as Negative Precedent in United States v. Virginia

Yale Law Journal

Volumn 108, Issue 1, 1998, Pages 237-266

  Widiss, Deborah A ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042069515     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797474     Document Type: Review

References (137)

1. Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
2. For a recent interdisciplinary collection of articles on the use of history in law, see Symposium on the Critical Use of History, 49 STAN. L. REV. 1023-1221 (1997). See also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS L. REV. 303 (summarizing approaches that feminist legal scholars have taken towards history and tradition); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984) (summarizing and critiquing the traditional vision of "law-in-history that has tended to . . . dominate liberal legal scholarship" and introducing approaches taken by Critical Legal Scholars); John Philip Reid, Law and History, 27 LOY. L.A. L. REV. 1707 (1996) (using traditional concepts of historical scholarship to criticize lawyers' use of history); Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. (forthcoming June 1999) (discussing the use of history in legal interpretation).
3. For a recent interdisciplinary collection of articles on the use of history in law, see Symposium on the Critical Use of History, 49 STAN. L. REV. 1023-1221 (1997). See also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS L. REV. 303 (summarizing approaches that feminist legal scholars have taken towards history and tradition); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984) (summarizing and critiquing the traditional vision of "law-in-history that has tended to . . . dominate liberal legal scholarship" and introducing approaches taken by Critical Legal Scholars); John Philip Reid, Law and History, 27 LOY. L.A. L. REV. 1707 (1996) (using traditional concepts of historical scholarship to criticize lawyers' use of history); Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. (forthcoming June 1999) (discussing the use of history in legal interpretation).
4. For a recent interdisciplinary collection of articles on the use of history in law, see Symposium on the Critical Use of History, 49 STAN. L. REV. 1023-1221 (1997). See also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS L. REV. 303 (summarizing approaches that feminist legal scholars have taken towards history and tradition); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984) (summarizing and critiquing the traditional vision of "law-in-history that has tended to . . . dominate liberal legal scholarship" and introducing approaches taken by Critical Legal Scholars); John Philip Reid, Law and History, 27 LOY. L.A. L. REV. 1707 (1996) (using traditional concepts of historical scholarship to criticize lawyers' use of history); Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. (forthcoming June 1999) (discussing the use of history in legal interpretation).
5. For a recent interdisciplinary collection of articles on the use of history in law, see Symposium on the Critical Use of History, 49 STAN. L. REV. 1023-1221 (1997). See also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS L. REV. 303 (summarizing approaches that feminist legal scholars have taken towards history and tradition); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984) (summarizing and critiquing the traditional vision of "law-in-history that has tended to . . . dominate liberal legal scholarship" and introducing approaches taken by Critical Legal Scholars); John Philip Reid, Law and History, 27 LOY. L.A. L. REV. 1707 (1996) (using traditional concepts of historical scholarship to criticize lawyers' use of history); Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. (forthcoming June 1999) (discussing the use of history in legal interpretation).
6. For a recent interdisciplinary collection of articles on the use of history in law, see Symposium on the Critical Use of History, 49 STAN. L. REV. 1023-1221 (1997). See also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS L. REV. 303 (summarizing approaches that feminist legal scholars have taken towards history and tradition); Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984) (summarizing and critiquing the traditional vision of "law-in-history that has tended to . . . dominate liberal legal scholarship" and introducing approaches taken by Critical Legal Scholars); John Philip Reid, Law and History, 27 LOY. L.A. L. REV. 1707 (1996) (using traditional concepts of historical scholarship to criticize lawyers' use of history); Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. (forthcoming June 1999) (discussing the use of history in legal interpretation).
7. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 139 n.11 (1994).
8. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
9. Louisiana v. United States, 380 U.S. 145, 154 (1965).
10. 518 U.S. 515 (1996).
11. See Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 1029 (1990).
12. The schematic description of the mechanics and traditional justifications for precedent that follows is adapted from Frederick Schauer's comprehensive treatment of the subject. See Frederick Schauer, Precedent, 39 STAN. L. REV. 571 (1987); see also id. at 571 n.3 (listing other authors' standard treatments of precedent). Schauer's highly influential work has been used by numerous commentators as a starting point for discussions of the justifications for deferring to precedent. See, e.g., Clayton P. Gillette, Rules and Reversibility, 72 NOTRE DAME L. REV. 1415, 1415 (1997);
13. The schematic description of the mechanics and traditional justifications for precedent that follows is adapted from Frederick Schauer's comprehensive treatment of the subject. See Frederick Schauer, Precedent, 39 STAN. L. REV. 571 (1987); see also id. at 571 n.3 (listing other authors' standard treatments of precedent). Schauer's highly influential work has been used by numerous commentators as a starting point for discussions of the justifications for deferring to precedent. See, e.g., Clayton P. Gillette, Rules and Reversibility, 72 NOTRE DAME L. REV. 1415, 1415 (1997);
14. Kronman, supra note 7, at 1037-39; Gerald J. Postema, Integrity: Justice in Workclothes, 82 IOWA L. REV. 821, 821 (1997); Mark Tushnet, Self-Formalism, Precedent, and the Rule of Law, 72 NOTRE DAME L. REV. 1583, 1583 n.a (1997).
15. Kronman, supra note 7, at 1037-39; Gerald J. Postema, Integrity: Justice in Workclothes, 82 IOWA L. REV. 821, 821 (1997); Mark Tushnet, Self-Formalism, Precedent, and the Rule of Law, 72 NOTRE DAME L. REV. 1583, 1583 n.a (1997).
16. Kronman, supra note 7, at 1037-39; Gerald J. Postema, Integrity: Justice in Workclothes, 82 IOWA L. REV. 821, 821 (1997); Mark Tushnet, Self-Formalism, Precedent, and the Rule of Law, 72 NOTRE DAME L. REV. 1583, 1583 n.a (1997).
17. See Schauer, supra note 8 at 576-88 (discussing how categories of relevance are established).
18. Id. at 575.
19. The following discussion is adapted from Schauer's article. For a full description, see id. at 595-602.
20. See Kronman, supra note 7, at 1041 ("Since the past cannot be undone, the only way to treat later cases like (identical) earlier ones is to conform the later cases to them; this is a consequence of the rather obvious fact that time flows in one direction only."). Time only flows one way, but a similar "fairness" argument also can be used in the present with bearing on the future: Consider the common environmental plea that natural resources should be routinely conserved and pollution should be abated because it is "unfair" that future generations should suffer simply because they were born later. See generally, e.g., EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS (1989) (arguing that each generation has a duty to pass on the Earth in a condition at least as good as that in which it received it and a duty to repair any damage done by the failure of previous generations to do the same).
21. See Kronman, supra note 7, at 1041 ("Since the past cannot be undone, the only way to treat later cases like (identical) earlier ones is to conform the later cases to them; this is a consequence of the rather obvious fact that time flows in one direction only."). Time only flows one way, but a similar "fairness" argument also can be used in the present with bearing on the future: Consider the common environmental plea that natural resources should be routinely conserved and pollution should be abated because it is "unfair" that future generations should suffer simply because they were born later. See generally, e.g., EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS (1989) (arguing that each generation has a duty to pass on the Earth in a condition at least as good as that in which it received it and a duty to repair any damage done by the failure of previous generations to do the same).
22. See id. at 1043-68. For other commentary on Kronman's argument, see Bartlett, supra note 2, at 306-08; and David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035, 1040-60 (1991).
23. See id. at 1043-68. For other commentary on Kronman's argument, see Bartlett, supra note 2, at 306-08; and David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035, 1040-60 (1991).
24. Kronman, supra note 7, at 1067.
25. Id. at 1066.
26. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161, 1174 (1988).
27. This is a common practice. A current situation, X′, is similar to X. Assume that society now considers the original result "wrong." Since the first step in the decisionmaking process is factual, a different treatment of X′ can be justified by showing that it is different from X. Distinguishing X′ thus becomes a means to an end: establishing a new controlling precedent for the universe of Xs. X′ then becomes a baseline; its scope is gradually expanded until it applies to the entire universe of Xs (and thus implicitly includes the original X). Arguments made back to the original case then would be futile. Distinguishing presents the possibility of a progressive, one-directional growth without any explicit denunciation of the rule of precedent. For a recent and well-known example of this, see the progression from Fullilove v. Klutznick, 448 U.S. 448 (1980), which found a federal affirmative action program constitutional under intermediate scrutiny; to City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), which held a municipal affirmative action program modeled on the one approved in Fullilove to be unconstitutional under strict scrutiny and distinguished Fullilove on the ground that Congress, but not Richmond, has an affirmative grant of power to enforce the Equal Protection Clause; to Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), which announced a policy of congruence that, expanding Croson and discounting Fullilove, required courts to evaluate federal affirmative action programs under strict scrutiny.
28. A related, but logically distinct, practice is citing a dissent from a now discredited decision to lend support for the opposite proposition. Judges, litigators, and commentators do this with some regularity; the dissents most commonly cited are probably Justice Harlan's in Plessy v. Ferguson, 163 U.S. 537, 552 (1896), and Justice Holmes's in Lochner v. New York, 198 U.S. 45, 74 (1905).
29. Note that if the original shift away from X was through a process of distinguishing rather than an explicit overruling, see supra note 17, arguing from past precedent in this manner is essentially "undistinguishing."
30. See, e.g., Kronman, supra note 7, at 1051. David Luban, noting this tendency, suggests that Kronman's reasoning is fatally flawed, in part by its failure to admit explicity that some historical actions are not worth following. See Luban, supra note 13, at 1056-57. I think Luban is unfair in his criticism. Kronman does not suggest that we must slavishly adhere to all of the actions of the past. Nor does he ignore the possibility of intergenerational progress. Rather, Kronman circumscribes his conclusions: As humans, "we are bound, within limits, to respect [the past] for its own sake . . . ." Kronman, supra note 7, at 1066 (emphasis added). See also id. at 1039 ("[T]he past deserves to be respected merely because it is the past - not, of course, uncritically or unconditionally, but for its own sake nonetheless." (emphasis added)). Luban's critique, however, is important in recognizing the limits of the traditionalist argument as described in Kronman's article. But rather than discarding Kronman's underlying premise, I suggest moving the lines to expand the scope.
31. Kronman introduces the traditionalist approach as an alternative explanation for a society's reference to the past both "in the law and outside it." Id. at 1047. Any reference to a past legal decision expresses a society's intergenerational memory and, because law adheres to precedent (in part to achieve fairness, predictability, and efficiency), law serves such traditionalist impulses by its ongoing reference to past decisions. But the key to the traditionalist argument is not that the past event is a legal event; reference to a Renaissance play or the restoration of a crumbling cathedral serves tradition as well. See id. at 1053-55. In fact, a legal opinion is an imperfect means of expressing society's intergenerational memory precisely because it also serves to promote fairness, predictability, and efficiency. Whereas the traditionalist rationale would emphasize the particular personalities involved, see id. at 1065, the utilitarian objectives of precedent require a process of abstraction that creates (at least the illusion of) a controlling precedent distinct from individual fact patterns. See supra text accompanying note 9. For an influential discussion of the significance of such depersonalization, see John Noonan's analysis of the decisions in, and the legal commentary on, Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), in JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 111-51 (1976).
32. See, e.g., Schauer, supra note 8, at 572 (noting that such reasoning is familiar even in such nonlegal institutions as the family).
33. For example, due process protects "fundamental, liberties" that are often defined as those "deeply rooted" in the country's traditions. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)). For an influential discussion of the way in which the Equal Protection Clause positions itself against deep-seated traditions while the Due Process Clause is used to maintain such traditions, see Sunstein, supra note 16.
34. See infra Parts III and IV.
35. 518 U.S. 515 (1996).
36. For a comprehensive treatment of VMI's own history, see Dianne Avery, Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case, 5 S. CAL. REV. L. & WOMEN'S STUD. 189 (1996). Avery argues that the school created a largely artificial rhetoric of "unchanging" traditions as a strategic element of its defense, but that in fact the school - including its famed adversative method - has evolved greatly over time. For a different perspective on the narrative strategies employed in the case, see Valorie K. Vojkik, At War: Narrative Tactics in the Citadel and VMI Litigation, 19 HARV. WOMEN'S L.J. 1 (1996) Vojdik suggests that the school cast itself as a "single-gender" college rather than a traditional male military college to shift the focus away from the exclusion of women and argues that that the absence of individual plaintiffs in the VMI litigation disadvantaged the United States because it was unable to harness narrative sympathies. See also Larry Catá Backer, Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 TULSA L.J. 361 (1997); Lucinda M. Finley, Sex-Blind, Separate But Equal, or Anti-subordination? The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089 (1996). For fuller treatments of the history of the case itself and the particular implications that the decision will have for VMI, see, for example, Raymond F. Runyon, Note, VMI and Virginia Lose Again: United States v. Virginia, 32 TULSA L.J. 681, 702-05 (1997) (filling in the context for many of the concerns that Justice Scalia expresses in his dissent); Collin O'Connor Udell, Note, Signaling a New Direction in Gender Classification Scrutiny: United States v. Virginia, 29 CONN. L. REV. 521 (1996) (situating the decision within gender equal protection jurisprudence); and Shanon M. Gregor, Case Comment, Constitutional Law - Equal Protection - Gender Discrimination: The Virginia Military Institute Is Given the Opportunity to Create "Citizen-Soldiers" out of Qualified Women, 73 N.D. L. REV. 323 (1997) (giving a positive reading of the changes required by the decision and recounting the case's history).
37. For a comprehensive treatment of VMI's own history, see Dianne Avery, Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case, 5 S. CAL. REV. L. & WOMEN'S STUD. 189 (1996). Avery argues that the school created a largely artificial rhetoric of "unchanging" traditions as a strategic element of its defense, but that in fact the school - including its famed adversative method - has evolved greatly over time. For a different perspective on the narrative strategies employed in the case, see Valorie K. Vojkik, At War: Narrative Tactics in the Citadel and VMI Litigation, 19 HARV. WOMEN'S L.J. 1 (1996) Vojdik suggests that the school cast itself as a "single-gender" college rather than a traditional male military college to shift the focus away from the exclusion of women and argues that that the absence of individual plaintiffs in the VMI litigation disadvantaged the United States because it was unable to harness narrative sympathies. See also Larry Catá Backer, Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 TULSA L.J. 361 (1997); Lucinda M. Finley, Sex-Blind, Separate But Equal, or Anti-subordination? The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089 (1996). For fuller treatments of the history of the case itself and the particular implications that the decision will have for VMI, see, for example, Raymond F. Runyon, Note, VMI and Virginia Lose Again: United States v. Virginia, 32 TULSA L.J. 681, 702-05 (1997) (filling in the context for many of the concerns that Justice Scalia expresses in his dissent); Collin O'Connor Udell, Note, Signaling a New Direction in Gender Classification Scrutiny: United States v. Virginia, 29 CONN. L. REV. 521 (1996) (situating the decision within gender equal protection jurisprudence); and Shanon M. Gregor, Case Comment, Constitutional Law - Equal Protection - Gender Discrimination: The Virginia Military Institute Is Given the Opportunity to Create "Citizen-Soldiers" out of Qualified Women, 73 N.D. L. REV. 323 (1997) (giving a positive reading of the changes required by the decision and recounting the case's history).
38. For a comprehensive treatment of VMI's own history, see Dianne Avery, Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case, 5 S. CAL. REV. L. & WOMEN'S STUD. 189 (1996). Avery argues that the school created a largely artificial rhetoric of "unchanging" traditions as a strategic element of its defense, but that in fact the school - including its famed adversative method - has evolved greatly over time. For a different perspective on the narrative strategies employed in the case, see Valorie K. Vojkik, At War: Narrative Tactics in the Citadel and VMI Litigation, 19 HARV. WOMEN'S L.J. 1 (1996) Vojdik suggests that the school cast itself as a "single-gender" college rather than a traditional male military college to shift the focus away from the exclusion of women and argues that that the absence of individual plaintiffs in the VMI litigation disadvantaged the United States because it was unable to harness narrative sympathies. See also Larry Catá Backer, Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 TULSA L.J. 361 (1997); Lucinda M. Finley, Sex-Blind, Separate But Equal, or Anti-subordination? The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089 (1996). For fuller treatments of the history of the case itself and the particular implications that the decision will have for VMI, see, for example, Raymond F. Runyon, Note, VMI and Virginia Lose Again: United States v. Virginia, 32 TULSA L.J. 681, 702-05 (1997) (filling in the context for many of the concerns that Justice Scalia expresses in his dissent); Collin O'Connor Udell, Note, Signaling a New Direction in Gender Classification Scrutiny: United States v. Virginia, 29 CONN. L. REV. 521 (1996) (situating the decision within gender equal protection jurisprudence); and Shanon M. Gregor, Case Comment, Constitutional Law - Equal Protection - Gender Discrimination: The Virginia Military Institute Is Given the Opportunity to Create "Citizen-Soldiers" out of Qualified Women, 73 N.D. L. REV. 323 (1997) (giving a positive reading of the changes required by the decision and recounting the case's history).
39. For a comprehensive treatment of VMI's own history, see Dianne Avery, Institutional Myths, Historical Narratives and Social Science Evidence: Reading the "Record" in the Virginia Military Institute Case, 5 S. CAL. REV. L. & WOMEN'S STUD. 189 (1996). Avery argues that the school created a largely artificial rhetoric of "unchanging" traditions as a strategic element of its defense, but that in fact the school - including its famed adversative method - has evolved greatly over time. For a different perspective on the narrative strategies employed in the case, see Valorie K. Vojkik, At War: Narrative Tactics in the Citadel and VMI Litigation, 19 HARV. WOMEN'S L.J. 1 (1996) Vojdik suggests that the school cast itself as a "single-gender" college rather than a traditional male military college to shift the focus away from the exclusion of women and argues that that the absence of individual plaintiffs in the VMI litigation disadvantaged the United States because it was unable to harness narrative sympathies. See also Larry Catá Backer, Reading Entrails: Romer, VMI and the Art of Divining Equal Protection, 32 TULSA L.J. 361 (1997); Lucinda M. Finley, Sex-Blind, Separate But Equal, or Anti-subordination? The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089 (1996). For fuller treatments of the history of the case itself and the particular implications that the decision will have for VMI, see, for example, Raymond F. Runyon, Note, VMI and Virginia Lose Again: United States v. Virginia, 32 TULSA L.J. 681, 702-05 (1997) (filling in the context for many of the concerns that Justice Scalia expresses in his dissent); Collin O'Connor Udell, Note, Signaling a New Direction in Gender Classification Scrutiny: United States v. Virginia, 29 CONN. L. REV. 521 (1996) (situating the decision within gender equal protection jurisprudence); and Shanon M. Gregor, Case Comment, Constitutional Law - Equal Protection - Gender Discrimination: The Virginia Military Institute Is Given the Opportunity to Create "Citizen-Soldiers" out of Qualified Women, 73 N.D. L. REV. 323 (1997) (giving a positive reading of the changes required by the decision and recounting the case's history).
40. See United States v. Virginia, 518 U.S. at 520. The following background is based on the material that Justice Ginsburg provided in her majority opinion. See id. at 520-30, 547-54. The decisions for the two waves of litigation can be found at United States v. Virginia 766 F. Supp. 1407 (W.D. Va. 1991); 976 F.2d 890 (4th Cir. 1992); 852 F. Supp. 471 (W.D. Va. 1994); and 44 F.3d 1229 (4th Cir. 1995).
41. See United States v. Virginia, 518 U.S. at 520. The following background is based on the material that Justice Ginsburg provided in her majority opinion. See id. at 520-30, 547-54. The decisions for the two waves of litigation can be found at United States v. Virginia 766 F. Supp. 1407 (W.D. Va. 1991); 976 F.2d 890 (4th Cir. 1992); 852 F. Supp. 471 (W.D. Va. 1994); and 44 F.3d 1229 (4th Cir. 1995).
42. See United States v. Virginia, 518 U.S. at 520. The following background is based on the material that Justice Ginsburg provided in her majority opinion. See id. at 520-30, 547-54. The decisions for the two waves of litigation can be found at United States v. Virginia 766 F. Supp. 1407 (W.D. Va. 1991); 976 F.2d 890 (4th Cir. 1992); 852 F. Supp. 471 (W.D. Va. 1994); and 44 F.3d 1229 (4th Cir. 1995).
43. United States v. Virginia, 518 U.S. at 522.
44. Id.
45. Id. at 552 (quoting United States v. Virginia, 852 F. Supp. at 499).
46. See id.
47. See id. at 523.
48. See id. 34. See United States v. Virginia, 766 F. Supp. at 1415.
49. United States v. Virginia, 976 F.2d at 900.
50. United States v. Virginia, 852 F. Supp. at 476.
51. United States v. Virginia, 518 U.S. at 552 (internal citations omitted).
52. See United States v. Virginia, 852 F. Supp. at 484; 44 F.3d at 1241.
53. See United States v. Virginia, 518 U.S. at 530-31.
54. Id. at 531 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-37 & n.6 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
55. See id. at 555-56.
56. Id. at 558 (Rehnquist, C.J., concurring) (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)).
57. Id. at 573 (Scalia, J., dissenting).
58. See id. at 576-79. (Scalia, J., dissenting)
59. See generally Backer, supra note 26, at 365-70 (suggesting that since Justice Ginsburg's opinion lays the groundwork for a move to strict scrutiny for gender classifications, "the intermediate courts may take the hint and make it increasingly impossible for the high court to contain the language of the opinion"); Christina Gleason, Comment, United States v. Virginia: Skeptical Scrutiny and the Future of Gender Discrimination Law, 70 ST. JOHN'S L. REV. 801 (1996) (reviewing the evolution of standards of scrutiny in challenges to gender classifications and suggesting that the Justices are very close to applying strict scrutiny); and Udell, supra note 26 (same).
60. See United States v. Virginia, 518 U.S. at 532 ("Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men)." (footnote omitted)). Justice Scalia accurately - though perhaps unnecessarily caustically - characterized her treatment of this distinction as potentially misleading: "[Such statements] suggest that we have not already categorically held strict scrutiny to be inapplicable to sex-based classifications." Id. at 574 (Scalia, J., dissenting).
61. Justice Ginsburg's discussion of the standard of scrutiny is also striking in the emphasis it places on the harm caused by the many years in which women were excluded from institutions throughout American history. See infra Part IV.
62. "Persuade" means "[t]o induce to undertake a cause of action embrace a point of view by means of argument, reasoning, or entreaty." AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1352 (3d ed. 1992). "Persuade" is distinguished from synonyms "induce," "prevail," and "convince" as meaning "to win someone over, as by reasons, advice, urging, or personal forcefulness." Id. (emphasis added).
63. See generally MARTHA C. NUSSBAUM, POETIC JUSTICE, 53-78 (describing the role that "rational emotions" can play in judging).
64. Virginia also claimed that its exclusion of women justified because single-sex education provide important educational benefits, see Virginia, 518 U.S. at 535 (quoting Brief for Cross-Petitioners at 20, United States v. Virginia, 518 U.S. 515 (1996) (Nos. 94-1941, 94-2107)), and thus the option of single-sex education at VMI was a valuable contribute to the state's "diversity in educational approaches," id. (quoting Brief for Cross-Petitioners, supra, at 25). This argument merged ends and means. That is, to the extent that the Court accepted that single-sex education provides considerable benefits, VMI's policy obviously was substantially related to achieving this benefit. Justice Ginsburg did not reach the thorny question of the validity of the argument itself. Rather, she found that the argument failed because it was a post hoc rationalization. Thus, what would have been a normative evaluation of the "importance" of single-sex schools - and of considerable concern to the other few remaining public single-sex schools - became a straightforward factual inquiry into the genuineness of Virginia's alleged commitment to providing single-sex options as part of its commitment to diversity among institutions. Justice Ginsburg carefully qualified her statements about single-sex schools to leave open the possibility that some such schools might pass equal protection scrutiny. See id. at 535-36 & nn.7-8 (recognizing that "single-sex education affords pedagogical benefits to at least some students" and thus might fit within a state's "prerogative evenhandedly to support diverse educational opportunities"). Chief Justice Rehnquist was much more definite about the possibility of single-sex schools. See id. at 565 (Rehnquist, C.J., concurring) (suggesting that a state could satisfy equal protection dictates by demonstrating that single-sex schools for men and women respectively offer "the same quality of education and were of the same overall calibre"). Justice Ginsburg and Chief Justice Rehnquist both considered the relevant category for comparison to be public institutions of higher education, and they found that the historical record shows a clear trend towards dismantling single-sex schools. Since the only modern example of VMI's purported interest in diversity was VMI itself, the Justices were unpersuaded by the state's argument. See id. at 535-40 (majority opinion); id. at 560-64 (Rehnquist, C.J., concurring). Justice Scalia, by contrast, assumed that the relevant category was institutions - both public and private -in Virginia that receive public support. Noting that there were four private women's colleges that receive some measure of state support, he argued that the state's claim should pass muster. See id. at 576-79 (Scalia, J., dissenting).
65. United States v. Virginia, 976 F.2d 890, 897 (4th Cir. 1992) (footnote omitted).
66. United States v. Virginia, 518 U.S. at 541. The quotation marks qualifying "findings" are Justice Ginsburg's.
67. United States v. Virginia, 766 F. Supp. 1407, 1434-35 (W.D.Va. 1991).
68. Id. at 1412.
69. Id. at 1437-42.
70. See United States v. Virginia, 976 F.2d at 896-97; 518 U.S. at 566 (Scalia, J., dissenting).
71. United States v. Virginia, 44 F.3d 1229, 1239 (4th Cir. 1995).
72. Following the Supreme Court's decision requiring integration of a female-only nursing school in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), VMI commissioned a Mission Study to evaluate its own status. The district court's Findings in Connection with the 1990 Mission Study included evidence from West Point suggesting that the changes might be handled without too much difficulty: West Point provided generally favorable information concerning coeducation: (1) male and female cadet attrition occurs for the same reasons; (2) resentment of female cadets by male cadets has faded and "[a]cceptance is gained on the basis of individual achievement"; (3) VMI graduates will "probably be considered disadvantaged in the coed Army" because they do not come from a coed environment; (4) the introduction of women did not significantly change West Point; (5) women perform and compete as well as men in cadet basic training, cadet field training, and cadet advanced training, which are summer training programs; (6) training for men and women is comparable, but not identical, taking into account gender-based differences; (7) female cadets take the same physical education courses as men, except that they take self defense instead of boxing and wrestling; (8) the cost of educating a cadet did not rise significantly with the admission of women; (9) there had been "no changes in the curriculum, procedure, or facilities of the academic program because of the admission of women"; (10) female cadets have had no trouble with the West Point honor system. "Women are underrepresented in honor offenses," and "[t]he system is applied equally to men and women"; and (11) gender integration has been succesful, and "women's accomplishments have excelled all anticipated levels." United States v. Virginia, 766 F. Supp. at 1428 (quoting U.S. Ex. 68).
73. See United States v. Virginia, 518 U.S. at 546 n.16.
74. Id. at 541-42 (quoting Mississippi Univ. for Women, 458 U.S. at 725; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 139 n.11 (1994)).
75. Justice Ginsburg actually reviewed the history of women's education in reference to the state's proffered diversity justification, see supra note 50, but her treatment of the issue also discredited Virginia's catch-22 claims.
76. Id. at 536.
77. Id. at 536 n.9.
78. Id. (quoting EDWARD H. CLARKE, SEX IN EDUCATION 127 (Boston, James R. Osgood & Co. 2d ed. 1873)).
79. Id. (quoting HENRY MAUDSLEY, SEX IN MIND AND IN EDUCATION 17 (n.p. 1874)).
80. Id. (quoting CHARLES D. MEIGS, FEMALES AND THEIR DISEASES 350 (n.p. 1848)).
81. United States v. Virginia, 766 F. Supp. 1407, 1434 (W.D. Va. 1991) (predicating a factual finding in part on Reissman Dep. 63-65, 95, 106-07; and on Richardson's testimony at Tr. 684-87, 692-93). Justice Ginsburg quoted from this portion of the District Court's opinion. See United States v. Virginia, 518 U.S. at 541.
82. The District Court established Dr. Riesman as an expert: Dr. David Riesman, a professor of sociology at Harvard University, testified as a VMI expert on education. He holds a bachelor's degree from Harvard College earned in 1931, and a law degree from Harvard Law School earned in 1934. . . . His publications include The Lonely Crowd (1950), Constraint and Variety in American Education (1956), The Academic Revolution (with Christopher Jencks, 1968), and On Higher Education. United States v. Virginia, 766 F. Supp. at 1416-17.
83. The District Court established Dr. Riesman as an expert: Dr. David Riesman, a professor of sociology at Harvard University, testified as a VMI expert on education. He holds a bachelor's degree from Harvard College earned in 1931, and a law degree from Harvard Law School earned in 1934. . . . His publications include The Lonely Crowd (1950), Constraint and Variety in American Education (1956), The Academic Revolution (with Christopher Jencks, 1968), and On Higher Education. United States v. Virginia, 766 F. Supp. at 1416-17.
84. The District Court established Dr. Riesman as an expert: Dr. David Riesman, a professor of sociology at Harvard University, testified as a VMI expert on education. He holds a bachelor's degree from Harvard College earned in 1931, and a law degree from Harvard Law School earned in 1934. . . . His publications include The Lonely Crowd (1950), Constraint and Variety in American Education (1956), The Academic Revolution (with Christopher Jencks, 1968), and On Higher Education. United States v. Virginia, 766 F. Supp. at 1416-17.
85. United States v. Virginia, 518 U.S. at 542-43 (emphasis added) (footnotes and citation omitted).
86. See id. at 541 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
87. "Notion" means a "thought or idea" but is distinguished from other synonyms for "idea" as one that is "vague, general, or even fanciful." AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 895 (3d ed. 1992). "Notion" has a secondary meaning of a "fanciful impulse; a whim." Id. at 1238.
88. Jack Balkin has persuasively argued that status - which in the context of the VMI litigation break down along gender lines according to the experts' statements that compare and contrast their learning ability - fiercely compete to keep an existing status hierarchy because status is a zero-sum game: A gain in the status of one group is a relative decrease in the status of those defined in reference to it. See J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2328 (1997). For a less theoretical perspective, compare from Justice Ginsburg's charaterization of the school's protestations to a tongue-in-cheek passage Virginia Woolf's A Room of One's Own: Women have served all these centuries as looking-glasses possessing the magic and delicious power of reflecting the figure of man at twice its natural size. . . . That is why Napoleon and Mussolini both insist so emphatically upon the inferiority of women, for if they were not inferior, they would cease to enlarge. . . . How is [man] to go on giving judgement, civilising natives, making laws, writing books, dressing up and speechifying at banquets, unless he can see himself at breakfast nad dinner at least twice the size he really is? VIRGINIA WOOLF, A ROOM OF ONE'S OWN 53-54 (Hogarth Press 1929).
89. Jack Balkin has persuasively argued that status - which in the context of the VMI litigation break down along gender lines according to the experts' statements that compare and contrast their learning ability - fiercely compete to keep an existing status hierarchy because status is a zero-sum game: A gain in the status of one group is a relative decrease in the status of those defined in reference to it. See J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2328 (1997). For a less theoretical perspective, compare from Justice Ginsburg's charaterization of the school's protestations to a tongue-in-cheek passage Virginia Woolf's A Room of One's Own: Women have served all these centuries as looking-glasses possessing the magic and delicious power of reflecting the figure of man at twice its natural size. . . . That is why Napoleon and Mussolini both insist so emphatically upon the inferiority of women, for if they were not inferior, they would cease to enlarge. . . . How is [man] to go on giving judgement, civilising natives, making laws, writing books, dressing up and speechifying at banquets, unless he can see himself at breakfast nad dinner at least twice the size he really is? VIRGINIA WOOLF, A ROOM OF ONE'S OWN 53-54 (Hogarth Press 1929).
90. United States v. Virginia, 518 U.S. at 543 (quoting In re Dorsett, SYLLABI, Oct. 21, 1876, at 5 (Minn. C.P. Hennepin County, 1876)).
91. Id. at 543-44 (quoting NATION, Feb. 18, 1925, at 173).
92. Id. at 544 (quoting MARY ROTH WALSH, DOCTORS WANTED: NO WOMEN NEED APPLY, 121-22 (1977) (quoting Edward H. Clarke, Medical Education of Women, 4 BOSTON MED. & SURG. J. 345, 346 (1869))).
93. Id. at 544 (quoting MARY ROTH WALSH, DOCTORS WANTED: NO WOMEN NEED APPLY, 121-22 (1977) (quoting Edward H. Clarke, Medical Education of Women, 4 BOSTON MED. & SURG. J. 345, 346 (1869))).
94. Justice Ginsburg made the connection between the historical assertions and the modern assertions explicit in a footnote that followed the introductory statement about self-fulfilling pophecies. In the note, she moved directly from quoting the state's expert witness David Riesman on the likelihood that the admission of women would eventually cause VMI to drop the adversative system all together, see id. at 542 n.12 (quoting United States v. Virginia, 766 F. Supp. 1407, 1413 (W.D. Va. 1994)), to a 19th-century Virginia state senator's depiction "in burning eloquence [of] the terrible consequence" that a law protecting married women's property rights would produce. Id. (quoting 10 EDUC. J. VA. 213 (1879)). A year after the bill passed, the bill's sponsor reported triumphantly "that 'not one of [the forecast 'terrible consequences'] has or ever will happen, even unto the sounding of Gabriel's trumpet.'" Id.
95. Id. at 544 (citations omitted) (quoting FRANCES HEIDENSOHN, WOMEN IN CONTROL? 201 (1992); and citing PETER B. BLOCH & DEBORAH ANDERSON, POLICEWOMEN ON PATROL: FINAL REPORT (1974); CATHERINE MILTON ET AL., WOMEN IN POLICING 32-33 (1974)).
96. Id. at 544 (citations omitted) (quoting FRANCES HEIDENSOHN, WOMEN IN CONTROL? 201 (1992); and citing PETER B. BLOCH & DEBORAH ANDERSON, POLICEWOMEN ON PATROL: FINAL REPORT (1974); CATHERINE MILTON ET AL., WOMEN IN POLICING 32-33 (1974)).
97. Id. at 544 (citations omitted) (quoting FRANCES HEIDENSOHN, WOMEN IN CONTROL? 201 (1992); and citing PETER B. BLOCH & DEBORAH ANDERSON, POLICEWOMEN ON PATROL: FINAL REPORT (1974); CATHERINE MILTON ET AL., WOMEN IN POLICING 32-33 (1974)).
98. See id. at 542 n.11.
99. Id. (quoting Hearings on H.R. 9832, H.R. 10705, and Related Bills Regarding Equal Admission to the Service Academies Before the Subcomm. No. 2 on Military Personnel of the House Comm. on Armed Servs., 93rd Cong. 137 (1975) (statement of Lt. Gen. Albert P. Clark, Superintendent of U.S. Air Force Academy)).
100. Id. (quoting Hearings on H.R. 9832, H.R. 10705, and Related Bills Regarding Equal Admission to the Service Academies Before the Subcomm. No. 2 on Military Personnel of the House Comm. on Armed Servs., 93rd Cong. 165 (1975) (statement of Hon. Howard H. Callaway, Secretary of the Army)).
101. See, e.g., United States v. Virginia, 766 F. Supp. at 1412; 518 U.S. at 589 n.5 (Scalia, J., dissenting).
102. See United States v. Virginia, 518 U.S. 515, 544 n.13 (1996).
103. See id. at 544 n.14.
104. Id. at 545 n.15 (quoting A. VITTERS, U.S. MILITARY ACADEMY, REPORT OF ADMISSION OF WOMEN 84 (1978)).
105. Id. at 544-45 (citations omitted).
106. Id. at 558 (Rehnquist, C.J., concurring) (citation omitted).
107. See id. at 558-59 (Rehnquist, C.J., concurring).
108. Id. (Rehnquist, C.J., concurring).
109. 404 U.S. 71 (1971).
110. United States v. Virginia, 518 U.S. at 560 (Rehnquist, C.J., concurring).
111. 458 U.S. 718 (1982).
112. United States v. Virginia, 518 U.S. at 561 (Rehnquist, C.J., concurring).
113. Although one could quibble with Chief Justice Rehnquist's assertion that the starting date should be Hogan rather than Reed or, at the very least, Craig, which announced heightened scrutiny for all classifications on the basis of gender. Note that this is a question of the scope of a shift in the law; the question is how broadly the universe of Xs should be defined. See supra text accompanying notes 9, 19.
114. United States v. Virginia, 518 U.S. 515, 531 (1996) (emphasis added).
115. Id. (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)).
116. Id.
117. Id. (citing Goesaert v. Cleary, 335 U.S. 464, 467 (1948)).
118. Id. at 532 (citing Reed v. Reed, 404 U.S. 71, 73 (1971)).
119. See id. (citing Kirchberg v. Feenstra, 450 U.S. 455, 462-63 (1981); Stanton v. Stanton, 421 U.S. 7, 95 (1975)).
120. This technique supplies narrative weight that otherwise would be entirely lacking in the Government's case because of the absence of individual plaintiffs. Cf. Vojdik, supra note 26, at 8-12 (arguing that the Government was disadvantaged because it was unable to use narrative to engender sympathy).
121. See supra note 46.
122. 335 U.S. 464 (1948).
123. See United States v. Virginia, 518 U.S. at 532. Chief Justice Rehnquist, responding to Justice Ginsburg's Goesaert reference, dismissed it as a "now abandoned view" that was not "mention[ed]" in - and implicitly therefore not connected to - Reed's "brief opinion." Id. at 560, 561 (Rehnquist, C.J., concurring). For him, Goesaert was irrelevant. See also infra text accompanying note 107 (arguing that inherent in an example presented as negative precedent is the danger that it could be read as positive precedent).
124. United States v. Virginia, 518 U.S. at 531 (citation omitted).
125. In the majority opinion for the Hogan case, Justice O'Connor similarly used Goesaert as negative precedent: History provides numerous examples of legislative attempts to exclude women from particular areas simply because legislators believed women were less able than men to perform a particular function. . . . [T]he Court in Goesaert v. Cleary upheld a legislature's right to preclude women from bartending, except under limited circumstances, on the ground that the legislature could devise preventive measures against 'moral and social problems' that result when women, but apparently not men, tend bar. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 n.10 (1982) (citation omitted).
126. See generally Bartlett, supra note 2 (arguing that feminists should understand tradition and change as mutually embodied rather than as opposites).
127. For example, Justice Ginsburg used Goeseart v. Cleary in her discussion of the standard of scrutiny as a marker against which to measure change. See United States v. Virginia, 518 U.S. at 531; see also supra text accompanying notes 103-105 (analyzing Justice Ginsburg's use of Goeseart). Justice Scalia reacted to Justice Ginsburg's push to move the standard toward strict scrutiny by stating that if the standard were open to reconsideration, the "stronger argument" would be for returning to rational basis review because it was "routinely applied" through much of our history. United States v. Virginia, 518 U.S. at 575 (Scalia, J., dissenting). For Justice Ginsburg, Goeseart was negative; for Justice Scalia, it was positive. Since it is unlikely that rational basis review will be reinstated for gender-based classifications, Justice Ginsburg's use of Goesaert was rather safe.
128. In an article exploring the shifting rhetoric of status regulation, Reva Siegel argued that retrospective condemnation of past decisions (such as the Supreme Court's recent statement that "Plessy was wrong the day it was decided," Planned Parenthood v. Casey, 505 U.S. 833, 863 (1992)) may exonerate current practices. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L REV. 1111, 1111-13 (1997). This is properly understood as a failed argument from negative precedent, and Siegel's insight underlines the necessity of clearly establishing categories of relevance. Cf. Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109, 182-84 (1998) (arguing that depicting 19th-century racism as a pseudo-scientific phenomenon unrelated to modern racism unjustifiably allows modern society to distance itself from the past).
129. In an article exploring the shifting rhetoric of status regulation, Reva Siegel argued that retrospective condemnation of past decisions (such as the Supreme Court's recent statement that "Plessy was wrong the day it was decided," Planned Parenthood v. Casey, 505 U.S. 833, 863 (1992)) may exonerate current practices. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L REV. 1111, 1111-13 (1997). This is properly understood as a failed argument from negative precedent, and Siegel's insight underlines the necessity of clearly establishing categories of relevance. Cf. Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109, 182-84 (1998) (arguing that depicting 19th-century racism as a pseudo-scientific phenomenon unrelated to modern racism unjustifiably allows modern society to distance itself from the past).
130. See United States v. Virginia, 518 U.S. at 566 (Scalia, J., dissenting) ("Today the Court shuts down an institution that has served the people of the Commonwealth with pride and distinction for over a century and a half.").
131. Id. at 602-03 (Scalia, J., dissenting). These quotations are selectively edited from the text of the Code of the Gentleman that Justice Scalia provided.
132. Id. at 603 (Scalia, J., dissenting).
133. Frontiero v. Richardson, 411 U.S. 677, 684 (1973). Such stereotypes also limit men's options. For example, Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), the closest precedent for the VMI decision, was an effort by a man to gain access to an all-female nursing school.
134. Cf. United States v. Virginia, 518 U.S. at 568 (Scalia, J., dissenting) ("[I]n my view the function of this Court is to preserve our society's value regarding (among other things) equal protection, not to revise them.").
135. Id. at 569, 570 (Scalia, J., dissenting) (emphasis added).
136. Id. at 531.
137. Id. at 531 n.5 (quoting Letter from Thomas Jefferson to Samuel Kercheval (Sept. 5, 1816), in 10 WRITINGS OF THOMAS JEFFERSON 45-46, n.1 (New York, G.P. Putnam's Sons 1899)).