Document 23H: Justice William J. Brennan Jr., memorandum to Justice Lewis Powell, 6 March 1973, Part I: Case File, 1956-1990, Box 299, Folder 11, Papers of William J. Brennan, 1945-1998, Library of Congress, Washington, D.C.

Supreme Court of the United States
Washington, D. C. 20543

CHAMBERS OF
JUSTICE WM. J. BRENNAN, JR.

March 6, 1973

RE: No. 71-1694 - Frontiero v. Richardson

Dear Lewis:

   You make a strong argument and I have given it much thought. I come out however still of the view that the "suspect" approach is the proper one and, further, that now is the time, and this is the case, to make that clear. Two reasons primarily underlie my feeling. First, Thurgood's discussion of Reed in his dissent to your Rodriguez convinces me that the only rational explication of Reed is that it rests upon the "suspect" approach. Second, we cannot count on the Equal Rights Amendment to make the Equal Protection issue go away. Eleven states have now voted against ratification (Arkansas, Connecticut, Illinois, Louisiana, Montana, Nevada, North Carolina, North Dakota, Oklahoma, Utah and Virginia). And within the next month or two, at least two, and probably four, more states (Arizona, Mississippi, Missouri and Georgia) are expected to vote against ratification. Since rejection in 13 states is sufficient to kill the Amendment it looks like a lost cause. Although rejections may be rescinded at any time before March 1979, the trend is rather to rescind ratification in some states that have approved it. I therefore don't see that we gain anything by awaiting what is at best an uncertain outcome.

   Moreover, whether or not the Equal Rights Amendment eventually is ratified, we cannot ignore the fact that Congress and the legislatures of more than half the States have already determined that classifications based upon sex are inherently suspect.

Sincerely,

Bill

Mr. Justice Powell

cc: The Conference