create the very real possibility that an amendment could The judge also rejected NOW's argument (see discussion supra, page 364) that Idaho's rescission resolution was procedurally faulty, noting, inter alia, that once the state legislature forwarded an official certificate of its action to the Federal Government, "the notice is conclusive upon it and the courts as to both the truthfulness of the statements it contains and the propriety of the procedure by which it was promulgated." [Id. at 1150] Finally, addressing the extension issue, Judge Callister held that while Congress could act at the time it proposed an amendment to set a period within which states' ratifications would be valid, or, if it chose to set no time period, determine after ratifications were received whether they were sufficiently contemporaneous to make the amendment effective, Congress could not extend a period it had previously fixed. In any event, Judge Callister ruled that the setting of the time period-like the proposal of the amendment itself-could only be done by a two-thirds vote of both Houses of Congress (since the bodies were exercising Article V powers), and therefore the simple majorities obtained for the extension resolution, H.J. Res. 638, were inadequate. Although the court thus ruled for the plaintiffs on all the issues in the suit, Judge Callister refused to grant their requested injunctive relief, stating that in view of his holdings "little would be served in granting the plaintiffs' request for an order directing the Administrator of the General Services to return Idaho's ratification papers, and barring him from accepting further ratifications." [Id. at 1154] On January 4, 1982, NOW filed notices of appeal of Judge Callister's decision and order to both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court. On January 6, the defendant GSA Administrator also filed notices of appeal to both courts. (The defendant filed an amended notice of appeal to the Ninth Circuit on January 12, correcting a clerical error.) On January 8, 1982, NOW filed a jurisdictional statement in its direct appeal to the Supreme Court [No. 81-1282-ADX]. The organization also filed a petition for a writ of certiorari before judgment [N. 81-1283-CFX] from its pending appeal in the Ninth Circuit, where the case had been docketed [No. 82-3008] but no action taken. The filings were essentially identical, and, according to NOW, the questions presented for the Supreme Court's review were the following: 1. Whether Congress' decision to give states more time to consider the ratification of a proposed constitutional amendment is subject to federal judicial review despite the acknowledged unreviewability, as nonjusticiable political questions, of both (a) Congress' decision whether to treat particular ratifications as sufficiently timely and contemporaneous, and (b) Congress' decision whether to set any initial time limit at all. 2. Whether, if Congress' decision to extend time is judicially reviewable, the Constitution should be construed to freeze the 95th Congress into the time limit proposed by the 92nd in the resolving clause but not in the text of the Equal Rights Amendment; and whether, if Congress did have the power to extend the time for this amendment's consideration, the Constitution required that it do so by a two-thirds vote. 3. Whether, given the necessity for some national body to determine the national rules for combining or tallying a sequence of official state ratifications and rescissions, the Federal judiciary may undertake that task rather than entrusting it to Congress. 4. Whether, if Congress' treatment of purported rescissions is judicially reviewable, the Constitution should be construed to compel Congress to treat every state rescission of the proposed Equal Rights Amendment as automatically erasing the formal ratification that preceded it, even if those voting for rescission did so with official advice that such action would have no legal effect. 5. Whether these matters may be adjudicated by an Article III court in advance of the claimed ratification of the proposed Equal Rights Amendment by three-fourths of the states, at the behest of state legislators whose only "interest" in the lawsuit is that they voted in favor of their state's resolution of ratification or of rescission. [Jurisdictional Statement, January 8, 1982, at i-ii] NOW argued that these questions were substantial and clearly warranted Supreme Court consideration. This was primarily so, the organization contended, because until the decision of the district court, "the process of amending the Constitution-a delicately political exercise-had never before been stopped in its tracks by a federal court." [Id. at 9] Beyond the specific errors which NOW believed the district court had committed was an issue which the organization said required a decision by the Supreme Court-the essence of the relationship between Congress, the state legislatures, and the Federal judiciary in the amendment-ratification process. NOW argued: Whether the proposed Equal Rights Amendment will be duly ratified before the time set by Congress has expired on June 30, 1982, is, of course, unknowable-whether or not this Court reviews the ruling below. But this no one can doubt: It would be intolerable for the outcome of the struggle that has meant so much to so many for so long to be dictated or distorted by the unprecedented and unreviewed ruling of a single federal judge-a judge who has held that Congress, acting with the approval of the President after extensive legislative hearings on the constitutional issues involved, is barred by Article V from adding three years and three months to the time an earlier Congress had proposed for deliberation and decision on the Equal Rights Amendment. If the modest step Congress took in this instance truly deserves to be struck down, this Court rather than an individual federal judge should deliver the fatal blow. If, as NOW urges, the blow was indefensible, this Court should seal the wound while time remains. [Id. at 10] Turning to its specific objections to the lower court decision, NOW maintained once again that the decision as to whether to give states more time to consider an amendment's ratification was a subject "committed to the surveillance of Congress." It was, said NOW, a nonjusticiable political question, and this conclusion was clearly buttressed by the Coleman v. Miller and Dillon v. Gloss decisions. Further, even if the matter was deemed justiciable, NOW contended that the extension's validity would have to be sustained because the original seven-year limitation was not part of the text of the proposed amendment (it was in the resolving clause) and therefore could be altered by Congress. There was "no basis," the organization argued, for a claim that the seven-year language conferred upon anyone "a vested right to have the proposed amendment expire in seven years, much less a right that no future Congress would be free to change." [Id. at 17] NOW continued: "To suppose that this principle loses its hold just because Congress is exercising Article V powers is to invest congressional action pursuant to Article V with a finality that not even fully ratified constitutional amendments possess-for even they can be unmade." [Id.] On the contrary, said NOW, Article I, section 8 of the Constitution empowers Congress to "make all laws which shall be necessary and proper for carrying into Execution" both the specific legislative powers granted to Congress elsewhere in Article I and "all other Powers vested by this Constitution in the Government," and therefore directly authorized Congress, in conjunction with Article V, to pass the extension. Second, NOW argued, the decision as to whether to give effect to state rejections or rescissions of a proposed amendment was also a matter committed to Congress as part of its supervision of the ratification process and therefore was a nonjusticiable political question. Again, NOW cited the Coleman and Dillon cases to support its contention. The organization rejected the district court's reasoning that the state legislature was a more appropriate body than Congress to determine local sentiment and thus allowing it to rescind would "better promote the democratic ideal." In this regard, NOW stated: With all respect that analysis wholly misses the point. Even if each state legislature may "determine for itself" the "means [by which it] shall decide to consent or not to consent" on a particular occasion, Dyer v. Blair, supra, 390 F. Supp. at 1307, this means that a state wishing to transmit the latest "picture of the people's will" might be free, for instance, to take several tentative votes, or to defer any official vote until the final year, or to delay its decisive vote until other states have acted on the matter. But it is not even possible for each of fifty states to "determine for itself" the approach to be followed in deciding whether a combined total of thirty-eight states have filed timely The choice among . . . competing approaches to the "mode of ratification"-and, indeed, even the choice of whether to settle upon a specific approach at the start of the process for any given amendment or instead to leave the matter open until thirty-eight consents are on record and a judgment of timeliness is being made-cannot be left simultaneously to each of the several states but must, as a matter of simple logic, be made by a single, and thus a national, authority. The most that might be left for decision by the several states acting separately is the internal question of what steps must occur for that state to register a vote of "yes" or "no". But how a series of separate state votes is to be accumulated could not be left to the states to decide separately, given the lack of any guarantee that all would reach the same decision, lest the amendment process be reduced to a game with no rules and no umpire-or, more accurately, to fifty separate games that are not part of any common tournament. [Id. at 21-22 (footnote omitted)] In any event, NOW maintained, even if the rescission issue were deemed justiciable, the court would have to rule, particularly given historical precedent, that either "such rescissions are null and void, or at least that Congress need give them no more weight than circumstances call for." [Id. at 25] Finally, NOW argued, as it and the defendant had repeatedly done in the lower court, that the plaintiffs lacked standing and the case was not ripe for adjudication. On the standing point, NOW dismissed the "vote impairment" theory of the district court as without judicial precedent, and noted further that, even accepting the theory, no vote had been impaired because the amendment had not been ratified. On the ripeness issue, NOW contended that the plaintiffs were simply seeking an advisory opinion on a future step in the ratification process that might never be reached. Also on January 8, 1982, NOW filed motions to expedite both its direct appeal and consideration of its petition for a writ of certiorari. These motions essentially argued that only expedited review could vindicate the integrity of the amendment process and permit a “final period of unobstructed deliberation" regarding the proposed amendment. NOW as well suggested a briefing schedule. On January 11, 1982, Speaker of the House Thomas P. O'Neill, Jr. and House Judiciary Committee Chairman Peter W. Rodino, Jr. filed a brief amici curiae in support of NOW's appeal and petition for certiorari and the motions for expedited treatment. The amici asserted that they had a particular interest in the case because it concerned "the constitutional prerogatives of the Legislative branch, and because if allowed to stand the decision will adversely affect the exercise by Congress of the amending power in future cases." [Brief of the Honorable Thomas P. O'Neill, Jr. ..., January 11, 1982, at 2] The amici's brief made the following arguments: (1) expedited consideration of the case was of the utmost impor tance because the negative character of the lower court decision was having "a major chilling effect upon . . . Congressionally mandated debate" on the proposed amendment [Id. at 4]; (2) the issues of extension and rescission presented nonjusticiable political questions under the doctrine of Coleman v. Miller and other Supreme Court cases, which recognized that "Congress has exclusive dominion over questions concerning the appropriate time period for ratifications, as well as the efficacy of rescissions" [Id. at 8-9]; and (3) even if the issues in the case were deemed justiciable, Congress acted properly in extending the time for ratification and could not be compelled to give effect to a rescission. The amici also argued that it was not unlawful for Congress to pass the extension resolution by a simple majority rather than a two-thirds vote. "Both Article V and the Constitution as a whole expressly specify those highly unusual instances where a supermajority vote is required. The crucial step of proposing an amendment is so specified. But the proposal of the mode of ratification and the setting of ratification deadlines are not." [Id. at 13] On January 14, 1982, the defendant GSA Administrator (now Gerald P. Carmen) filed a jurisdictional statement in his direct appeal to the Supreme Court [No. 81-1312-ADX]. The defendantappellant also filed a petition for a writ of certiorari before judgment [No. 81-1313-CFX] from his pending appeal in the Ninth Circuit, where the case had been docketed [No. 82-3016] but no action taken. In his jurisdictional statement, the GSA Administrator, like NOW and the amici, argued that the questions involved in the case were substantial enough to warrant Supreme Court review. However, unlike NOW and the amici, the defendant contended that the Court should not, at that point, determine the validity of the extension or the effect of any rescissions: Indeed, in our view, judicial resolution of these issues by Consequently, the defendant concluded that the Court should note probable jurisdiction in the case but should not schedule briefing on issues other than ripeness until after June 30, 1982, at which time it might be appropriate to simply vacate the judgment of the district court as moot. According to the GSA Administrator, only the ripeness issue itself was ripe for review by the Supreme Court. He explained: By June 30, 1982, if three additional states have not rati- 21-618 0-83-25 |