The Justice Department decision to oppose a speedy Supreme Court ruling on the constitutionality of the Equal Rights Amendment ratification process was attacked yesterday on both legal and political grounds as the maneuvering over survival of the controversial amendment escalated.
In Washington, House Democratic leaders announced they would attempt to enter the court case on the side of the National Organization for Women and other ERA supporters.
In Idaho, the ERA opponents who brought the suit that now threatens the amendment's survival announced that they would join the pro-ERA forces in seeking an expedited hearing from the Supreme Court.
And at the Justice Department, sources said yet another option was under consideration: asking the Supreme Court to summarily wipe out the Dec. 23 federal court ruling that started the flurry of activity. This could be the quickest means of nullifying the lower court's action, but it might leave the major constitutional issues unresolved.
Laurence Tribe, a Harvard University constitutional law professor who is representing NOW in the suit, said, "I think it would be a victory to have the court do anything that reverses or vacates, but it would not serve the long-term interest. The fundamental problem would not go away but would just be deferred. The country ought to hope for something more definitive."
The controversy stems from a ruling Dec. 23 by U.S. District Judge Marion Callister in Idaho holding Congress' 1978 extension of the ratification deadline unconstitutional and upholding the authority of states to rescind ratification of the amendment.
The legislatures of 35 states out of the 38 required have voted to ratify, but five subsequently attempted to rescind their ratifications, an action that has never been recognized by Congress.
Timing of the Supreme Court's review is critical because the ratification deadline is June 30. In addition, the clock is running even faster in unratified states whose legislatures will adjourn sooner--one as early as the end of this month. Without expedited review, the ERA could die before the Supreme Court takes up the issue, possibly as late as next October.
The original Justice Department decision on Monday to appeal Callister's ruling lifted the spirits of ERA supporters but apparently greatly angered top-level administration officials who had not been informed that there would be any public comment at that time.
The next day--after a telegram from conservatives to the White House--the opposition to expediting was announced at the same time the department said it would ask the court not to deal with the merits of the case.
Instead, Justice Department officials said they would argue that the substantive issues should be considered only after the June 30 ratification deadline. They contend that there is no reason for the court to deal with the substance if the amendment is not going to be ratified.
ERA proponents argue that unless the decision is overturned, Callister's opinion will be considered law by states that have not ratified. They say there would be no reason for those states to go forward.
The decision to avoid the substantive issues seemed to represent a major shift in policy. The government, under the Carter administration, had addressed the substantive issues throughout the Idaho proceedings.
Although Justice denied that the White House had exerted any political pressure, there were immediate protests from ERA proponents.
Rep. Don Edwards, (D-Calif.), chairman of the Judiciary subcommittee that handled ERA in the House, accused the administration of "political meddling in Justice Department decision making" and said the government's action "is a decision to delay until it is too late to make a difference."
The League of Women Voters, which is filing a brief on the side of NOW, also protested the Justice decision. "The decision is a political move calculated to appease ERA opponents by killing the amendment . . . . The administration's opposition to the ERA is well known, and the practical effect of Justice's decision is to link that department with the forces who want ERA to fail," said League President Ruth Hinerfeld.
The decision to oppose the expedited appeal was also criticized yesterday by the 68-member Congresswomen's Caucus. The caucus, in a statement signed by Rep. Patricia Schroeder (D-Colo.) and Margaret M. Heckler (R-Mass.), said the Justice Department is required to ask for an expedited appeal "in order to fulfill its obligation to defend the constitutionality of acts of Congress."
"For Justice to assert it will appeal this case in the usual course of business fails to fulfill this constitutional obligation," the caucus said. "Congress is not being fully represented by the Justice Department as long as it opposes prompt judicial review."
In 1979, a group of 79 congressmen attempted to join the suit on the side of NOW and the government, but Callister denied their request.
The original plaintiffs, the winners in the case, yesterday said they would also seek an expedited review by the Supreme Court. David Leroy, attorney general of Idaho, which helped bring the suit, said his side "brought this case because of the constitutional implications for every future amendment, rather than to impede or assist in the process of approving this particular amendment."
The plaintiffs will therefore support the National Organization for Women request to the Supreme Court but will seek to schedule a court hearing on March 1, which is too late to suit NOW. The ERA backers would like a hearing on Feb. 5.
While the justices can handle the case as they please, the combined weight of those favoring expedited review could influence them. The votes of five justices are required to expedite a case.