To those who want to see the Supreme Court adopt a strict scrutiny standard for gender discrimination, I say, be careful what you wish for. Adoption of any such standard would likely render Title IX unconstitutional, and myriad other federal and state laws. This is the lesson of the Court's bizarre race jurisprudence.
My response is to give back the 14th Amendment.
The same goes for the First Amendment. Just this morning, the New York Times editorial once again chastised the Court's notorious Citizens United decision for allowing the infusion of so much money into our political system. From the editorial:
When the Supreme Court ruled that the government may not ban campaign spending by corporations in the landmark Citizens United decision last year, it argued that disclosure of contributions would protect American democracy from hidden corporate agendas.
The court reasoned that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
American elections have since been flooded with corporate money. And the court’s reasoning is proving to be wrong: Shareholders of most American companies can’t determine whether corporate campaign spending is in their best interest because they haven’t been told how the companies are spending in political races.
Of course the Court was wrong. Citizens United is not about the conservative justices' best guess about what a healthy democracy needs and wants. It cannot even be pretended that this is so. Instead, the case, as most others, is about ideology and the political preferences of the justices in the majority.
If this is not an activist decision, then the concept has ceased to have any meaning.
The answer is usually that Citizens United is demanded by the First Amendment. This is the one that bars Congress from "abridging the freedom of speech." If the First Amendment in fact demands the conclusion the Court reached in Citizens United, then it is time to give back the First Amendment as well.