The Wrong Side of History

June 14, 2011
Guest Post

By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis filed an amicus brief in Flores-Villar v. United States on behalf of Equality NOW, Human Rights Watch and other groups.


There must be a good story behind the single sentence that the Supreme Court issued as its “opinion” in Flores-Villar v. U.S yesterday. A full seven months after the oral argument in the case, after reviewing hundreds of pages of briefs on the merits, on the surrounding historical issues, on relevant international and human rights law, on remedial questions, the Court opined that “The judgment is affirmed by an equally divided Court.”

Unfortunately, it will likely be decades before we learn the back story, when the Library of Congress opens the archives of one of the currently sitting Justices. Then, we’ll learn if it was Justice Kennedy or someone else who joined the dependable group of Justices Breyer, Ginsburg and Sotomayor to strike down the deeply discriminatory citizenship law, creating the even split on the Court. Then, years from now, we’ll find out whether the 4-4- split was just an expedient compromise mandated by the impending end of the term, when the Justices simply couldn’t reconcile competing concerns about deference to Congress, the Court’s remedial power, and even issues of standing. We’ll find out how many opinions were drafted and what the decision might have been if, for example, Justice Kagan hadn’t recused herself from the deliberations.

Because the Court could muster only a single sentence, historians – not journalists and law professors -- will be the ones who tell the story of Flores-Villar v. U.S.

One historian, Professor Linda Kerber of the University of Iowa, is ready. In her prizewinning 1998 book, No Constitutional Right to be Ladies, she chronicled the efforts of women, since the inception of the republic, to attain equal citizenship. Recognizing these recent cases as a continuation of feminists’ centuries-long efforts to achieve equality, Professor Kerber attended the oral arguments in both Nguyen v. INS and Flores-Villar. With other feminist historians like Nancy Cott, Linda Kerber was a primary contributor to a brilliant amicus brief in Flores-Villar that put the discriminatory citizenship law into historical context, underscoring its roots in an English common law doctrine holding that women were solely responsible for out-of-wedlock children.

As these unequal citizenship laws in the U.S. perpetuate, dividing the Court and Congress, the U.S. is increasingly on the wrong side of history. International law makes clear that equality in citizenship is a critical baseline. The domestic law of nations worldwide indicates that our peer groups are increasingly complying with that standard.  By hanging on to the vestiges of citizenship discrimination, the U.S. is more and more an outlier.

It may be decades before we can say why the Court this time failed to remedy the discrimination in the Flores-Villar case. And it may be another decade before the Court has another opportunity to hear a case addressing this issue, hopefully with the participation of the full Court. In the meantime, however, our nation fails to live up to its Constitutional promise of equal protection by perpetuating a regime of unequal citizenship.