“Virtue signaling” is becoming a cliché, applied to any and all outpourings of the Woke Religion, yet the narrower and more useful sense of the term hasn’t wholly disappeared: A “virtue signal” is an act whose primary purpose and effect is to demonstrate that the actor supports what others regard as a noble cause or abhors what they regard as an evil one. Whether the signal will accomplish anything or is pertinent in the context in which it is performed, or whether the signal is sincere – those are secondary matters at most.
Discourse might be more rational if we built a wall of separation between acts or arguments and the character of those who act or argue. Bad men can propound good ideas, and vice versa. We live in an era, though, in which a President of United States can declare that allowing state legislatures to establish election procedures is wrong, because Jefferson Davis also supported state authority, and lots of people nod in agreement, while others feel impelled to preface their support for ballot security with a disavowal of secession and slavery. A touch of defensive virtue signaling is almost essential to slipping past the cancellation authorities.
Still, there are virtue signals whose purity deserves recognition. Last Monday, 86 “business entities”, ranging from American Express and Apple to Tiffany & Co., Uber and the United States Soccer Federation (you won’t be surprised to see Google and Microsoft on the list of filers, but it isn’t entirely predictable; Amazon and Meta (né Facebook) left themselves off), filed an amicus brief in a lawsuit that, if you’re a normal person, has escaped your notice.
In Virginia v. Ferriero, the Commonwealth of Virginia and the States of Illinois and Nevada seek a writ of mandamus to compel the Archivist of the United States to certify that the Equal Rights Amendment has been adopted as part of the Constitution of the United States, notwithstanding that, as of the Congressionally fixed deadline for ratification, June 30, 1982, only 30 of the necessary 38 states had ratified it. (Thirty-five ratified it at one point or another, but five later rescinded their ratifications.)
Last March, a D.C. district judge (an Obama appointee, incidentally) dismissed the action. The plaintiffs have appealed. The business entities’ amicus brief urges the District of Columbia Court of Appeals to reverse the district court. To appreciate how undiluted this virtue signal is, one must take note of why the lower court decided the case as it did.
First, Judge Contreras held that certification by the Archivist has no legal effect. Mr. Ferriero has many important duties, but one of them is not making binding decisions about what is and isn’t in the text of the Constitution. Therefore, the plaintiffs have not been injured by his failure to accept their opinion about what that document says. Not having been injured, they have no standing to sue him to redress the nonexistent harm.
Second, the judge continued, even if standing weren’t a bar, the plaintiffs didn’t satisfy the conditions for the issuance of a writ of mandamus, which is a court order compelling a public official to perform a legal duty. The judge quoted another court on the circumstances in which the writ can be issued: “A court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” The plaintiffs didn’t meet those conditions. The Archivist has no duty, certainly not a “clear duty”, to certify an amendment as part of the Constitution when fewer than three-quarters of the states have ratified it, and the ERA was either three or five states short on June 30, 1982. (The judge rejected the plaintiffs’ contention that Congress hadn’t really set a deadline.)
The amicus brief has nothing to say about either of the grounds for the judge’s ruling. Its argument is divided into two sections, headed “As Corporate Citizens, Amici Are Strongly Committed to the ERA as a Means to Advance the Goal of Gender Equality” and “The ERA Would Enable Women’s Full Participation in the Labor Force and Provide Consistency in the Enforcement of Laws Affecting Women”. The words “standing” and “mandamus” do not even appear in the document.
What is the purpose of this effusion, prepared by a well known law firm for, one has no doubt, a very substantial fee (unless, that is, the firm of Paul, Weiss, Rifkind, Wharton & Garrison is signaling its own virtue by charging a reduced rate)? It is devoid of legal argument and doesn’t even advance its ostensible cause. Any appellate judge who may sympathize with the plaintiffs and be in search of a rationale for reversing the district court will find no help here.
No, all we have here is 86 businesses frantically signaling that they aren’t sinners against wokeness. It is a pathetic exercise and another sign of the degeneracy of America’s business leadership. Happily, it is form without a shred of substance.
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