St. John's University Law Faculty Blog

Professor John Q. Barrett has published a short article, “Ruth Bader Ginsburg: Litigating Against Gender Discrimination…and Remembering One Such New York Case,” in the Historical Society of the New York Courts’ publication Judicial Notice.

The article is about Ginsburg as a New Yorker; her 1970s American Civil Liberties Union (ACLU) Women’s Rights Project litigation for women’s and men’s equal rights, including in the U.S. Supreme Court; and her involvement in Sontag v. Bronstein, a little-remembered case that the New York Civil Liberties Union (NYCLU)—the ACLU’s local affiliate—won in the New York Court of Appeals in 1973. Sontag concerned a dumbbell-lifting test that New York City’s Civil Service Commission imposed as a job qualification on Ms. Sontag, a school audio-visual aide; because she failed this weight-lifting test, the City moved to dismiss her. The New York court decided that this was illegal gender-based discrimination.

In Sontag, Ginsburg, representing the ACLU, was on the NYCLU attorneys’ brief. If the New York court had decided against Sontag, Ginsburg might have taken the case to the U.S. Supreme Court, where it might have produced a landmark decision concerning the unconstitutionality of gratuitous sexism.

Justice Ginsburg always remembered the Sontag case and the excellence of the brief. She kept it nearby during her judicial career.  

Click here for an abstract of Professor Barrett’s essay and to download it.

Professor Ned Cavanagh’s essay, Countering the Big Lie: The Role of the Courts in the Post-Truth World, has been accepted for publication in the Cornell Law Review Online.

Here is an abstract of the piece:

During the administration of President Donald J. Trump, Americans witnessed an unprecedented assault on the truth by Trump and his political allies. Throughout his time in office (and even before), Trump lied to gain and maintain political support.  The biggest Big Lie, of course, was that 2020 election was stolen from him as a result of massive voter fraud in five swing states—Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. All of Trump’s court challenges to the 2020 election based on this lie failed.

Trump’s election lie, although it did not put him back in the White House, has inflicted serious, and now lasting, damage on our democratic institutions. Trump has created a post-truth world where facts no longer matter, thereby eroding trust in all branches of the government, including the courts. For Trump followers, the facts are irrelevant; only what Trump says matters. This view is not limited to Trump’s diehard “base.” Even mainline Republican legislators are embracing the Trump approach. Witness the attempts to reframe the events of January 6 not as a violent and lawless riot but rather simply as a peaceful exercise of free speech—in the face of overwhelming video and testimonial evidence to the contrary. Yet, other than losing his lawsuits, Trump has never been called to account for his baseless and irresponsible attempts to have the courts overturn the results of the 2020 Presidential election.

This essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short-shrift to Trump’s lawsuits but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest in its incipiency before it could take root among die-hard Trump supporters. This essay also suggests how the courts might more effectively handle future baseless and politically motivated election challenges in the post-truth world.

Today, the ABA Journal cited Professor Renee Nicole Allen’s co-authored article, The ‘Pink Ghetto’ Pipeline: Challenges and Opportunities for Women in Legal Education, in a post about status inequity. The ABA post is available here.

Professor Cheryl L. Wade is a panelist at a virtual event sponsored by the In-House Counsel Working Group of The Federalist Society. The event takes place today, September 9, 2021 at 1:00 ET. Go to this link for more information about the program.