In his latest Justia blog post, Illinois Law dean Vikram David Amar and professor Jason Mazzone consider the constitutionality of California’s recently passed law requiring that publicly held corporations to have a minimum number of women on their boards of directors. In this first of a series of columns on this topic, Amar and Mazzone analyze whether, under the Equal Protection Clause, the law fails federal intermediate scrutiny.
They write, "The bottom line is that the question of how federal intermediate scrutiny in gender affirmative action quota cases will play out is somewhat open. A final observation to make here is that those justices (like Ruth Bader Ginsburg) who often analogize gender discrimination to racial discrimination, and who may prefer that racial and gender classifications be treated the same way doctrinally, might find themselves torn as to how strict intermediate scrutiny should be. Indeed, if quotas to increase the representation of women can be upheld, that might also improve the chances that quotas for men in certain settings (which would mean ceilings for women, since there are, as explained below, often a finite number of slots) could also be upheld."
Read the full post at verdict.justia.com.