APA Newsletters
Spring 2000
Volume 99, Number 2

Newsletter on Philosophy and Law

Abstracts:
Recent Law Review Articles of Interest

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Bowsher, David K. "Cracking the Code of United States v. Virginia," 48 Duke Law Journal 305-339 (1998)

United States v. Virginia, the case in which the U.S. Supreme Court struck down the Virginia Military Institute’s exclusively male admissions policy on equal protection grounds, invoked language that sounded somewhat more stringent than the formulas typically used for intermediate scrutiny cases (those involving gender-related discrimination rather than racial or ethnic discrimination, which are subject to strict scrutiny). Instead of expressions like: "substantial relationship to important governmental objectives," Ruth Bader Ginsburg’s majority opinion coins the novel phrase, "skeptical scrutiny," and requires an "exceedingly persuasive justification" for the policy at issue. In light of this new language, some observers have speculated that the Court may be shifting gender-based discrimination toward the strict scrutiny end of the spectrum, where classificatory policies or laws in dispute have to be the "least intrusive means" of achieving a "compelling" governmental objective, a standard of judicial review which some regard as virtually impossible to satisfy. In this article Bowsher examines such arguments about the import of the VMI case, and concludes that they are quite unpersuasive. Ginsburg’s language notwithstanding, the Court still applies the intermediate standard of review to cases like this one.

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APA Newsletters Spring 2000 Volume 99, Number 2

APA Newsletters
Spring 2000
Volume 99, Number 2