The great judge was not the one-dimensional radical of the popular imagination. Her jurisprudence was cumulative, evolutionary—and immensely persuasiveby Sionaidh Douglas-Scott / September 21, 2020 / Leave a comment
How to remember Ruth Bader Ginsburg, who died on Friday aged 87? And what might her passing mean for the future? So much has already been written about this remarkable, talented jurist, feminist icon, the “Notorious RBG,” who sat on the US Supreme Court for nearly three decades, that it must be impossible to find anything original to write. And already reflections on her passing and legacy have been disrupted by the fierce political battle over whether to fill her vacant seat before the presidential election, and the manifold controversies involved in this—President Trump now says he is “moving aggressively” to replace Ginsburg. Pressing although those political imperatives may be, it remains important to highlight why Ginsburg has been so revered as a lawyer and judge and to focus on her legal achievements.
Ginsburg’s early career was one of great academic success, and yet the rejections are now legendary—the outstanding law student was top of her class at both Harvard and Columbia, Law Review editor at both, and yet rejected as a potential clerk by Supreme Court Justice Felix Frankfurter because she was a woman, and unable to get a job at any law firm (like her fellow justice, Sandra Day O’Connor). Ginsburg joined the Rutgers Law Faculty in 1963, to discover later that she was paid less than her male colleagues (she contested this, and the university gave in). She taught a “Women in the Law” course at Harvard, but it would not appoint her full-time. She did, however, become Columbia Law School’s first tenured female professor.
Ginsburg’s pre-Supreme Court career is as important as her time on the court since 1993, for she played a huge part in changing US law on sex discrimination. While still working as a professor, she made her name during the 1970s as litigator and director of the Women’s Rights Project of the American Civil Liberties Union. Her aim was to persuade the Supreme Court that the Equal Protection clause of the US Constitution’s 14th Amendment (which reads “no state shall… deny to any person within its jurisdiction the equal protection of the laws”) prohibited discrimination on the basis of sex, as well as race. In this she faced a formidable challenge. The Supreme Court had not yet recognised sex discrimination as a matter for constitutional concern. Bradwell v. Illinois, a landmark case that denied women the right to practise law, had been decided back in 1872. One hundred years later, women were allowed to practise law, but in other respects, matters had not progressed much beyond the opinion of Justice Bradley, who declared in Bradwell that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organisation, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.” And had not Thomas Jefferson, revered author of the Declaration of Independence proclaiming “all men are created equal,” also asserted that “women should be neither seen nor heard in society’s decision-making councils.”
The “Warren Court” (under Chief Justice Earl Warren) of the 1950s and 60s had been notably liberal on some civil rights issues, but less so on women’s rights. In 1961, in Hoyt v. Florida, the Supreme Court unanimously upheld the conviction, by an all-male jury, of a woman (who would now probably be classified a “battered wife’) charged with killing her husband. According to the court, the absence of women on juries was permissible because “woman is still regarded as the centre of home and family life.” This, Ginsburg declared (in a speech in Colorado Springs, reproduced in My Own Words, a 2016 compilation of her writings), reflected the “separate spheres” mindset—the view that it was a man’s role to be the breadwinner, head of household, and a woman’s to keep house, raise children and stay home. But Ginsburg successfully attacked this stereotype, also emphasising “that the real issue was not a narrow women’s rights question, but a question about people’s freedom to organise their lives on the basis of their own judgment.”
Ginsburg had a long-term strategy, a plan to challenge laws that treated men and women differently, starting with cases that were clearly winnable. Ginsburg has said of herself at this time that “I conceived of myself in large part as a teacher. There wasn’t a great understanding of gender discrimination… my objective was to take the Court step by step to the realisation, in Justice Brennan’s words, that the pedestal on which some thought women were standing all too often turned out to be a cage.” The first case she took on for the ACLU was Reed v Reed in 1971, a case born of striking and tragic circumstances. Ginsburg drafted a brief on behalf of Sally Reed, whose son Richard Lynn Reed, a minor, had killed himself with a rifle while visiting his father, in somewhat mysterious circumstances (the father had taken out an insurance policy on his life). Sally had filed a petition to be designated administrator of her son’s estate, but in spite of her filing first, the father’s application was automatically approved, because an Idaho statute declared that “males must be preferred to females” when there were two equally qualified persons to administer an estate. The law assumed that men had more business experience and were better qualified as administrators. Ginsburg argued that this Idaho law violated the Equal Protection Clause. The Supreme Court agreed, and Chief Justice Burger, writing for a unanimous court, invalidated the Idaho law as “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” Sex discrimination was held to be unconstitutional. Reed established a precedent for the court and paved the way for a new standard for reviewing sex-based classifications. Ginsburg referred to her 88-page Reed brief as the “grandmother brief” because the basic argument in all subsequent briefs came from Reed.
Other cases followed, such as Frontiero v. Richardson 1973; Weinberger v. Wiesenfeld 1975; Craig v. Boren 1976; Duren v. Missouri 1979. Weinberger v Wiesenfeld is notable because the claimant was male. Stephen Wiesenfeld’s wife, Paula, had died in childbirth, and he had applied for social security survivor benefits, so he could stay home and raise their infant son. Although widows had automatically received such benefits, widowers did not, unless they could prove prior dependency on their wife’s income, which Wiesenfeld could not. And so the husband was disadvantaged as a parent. But in 1975, Ginsburg won a unanimous victory in the Supreme Court for him. This case illustrated the broader range of Ginsburg’s strategy—to liberate both men and women from the stereotypes assigned to them by society. Her approach was evolutionary and cumulative, rather than iconoclastic. But nonetheless, by the end of the decade, great strides had been made in discrimination law, achieved as a result of the incremental gains in a series of cases.
To the Supreme Court
In 1980, President Carter appointed Ginsburg to the US Court of Appeals for the DC Circuit. During her time on the appeals court, Ginsburg tended to be perceived as moderate and cautious rather than activist, which some found surprising given her earlier progressive litigation at the ACLU. Ginsburg was known for her friendly relations with conservative judges such as Antonin Scalia and Robert Bork. Her judicial caution was also evident, and caused liberals some consternation, in a 1992 lecture she gave at New York University Law School, in which she revealed that, despite her support for abortion rights, she had misgivings about the Supreme Court’s decision on the right to abortion in Roe v. Wade. Ginsburg contended that the court might have gone too far—that Roe v. Wade “invited no dialogue with legislators,” thereby halting “a political process that was moving in a reform direction,” risking “prolonged divisiveness and deferred stable settlement of the issue.” Whether political reform could have been achieved is debatable, but the issue of abortion law in the US has certainly grown ever-more divisive, and a nominee judge’s stance on Roe v Wade has now become crucial to their candidature and appointability. Confirmation hearings for Ginsburg’s replacement will reveal just how fraught this issue has become.
In 1993, nonetheless, President Clinton nominated Ginsburg for the Supreme Court, and, at her Senate judiciary committee hearing, she described her approach to judging as “neither ‘liberal’ nor ‘conservative.’” She did, however, make clear that her support for the right to abortion, despite her criticism of Roe v. Wade, was unequivocal. And, after being appointed to the Supreme Court (on a vote of 93:3). Ginsburg was an unambiguous defender of progressive causes.
But since then, Justice Ginsburg has also become better known for her dissents, as the leader of the liberal opposition (since 2010, when Justice Stevens retired) on what she described as “one of the most activist courts in history.” So there are few notable majority opinions authored by her.
But one such was the Virginia Military Institute discrimination case, decided in 1996. This lawsuit challenged the all-male admissions policy at the VMI. This policy had been defended by the State of Virginia on the basis of a physically challenging curriculum not appropriate for young women, although, in response to pressure, the state had established a women’s military college—which, however, lacked the prestigious alumni network of the VMI. This alternative did not satisfy Ginsburg, who held that the state had failed to provide the “exceedingly persuasive justification” required by the Constitution for treating men and women differently: “Women seeking and fit for a VMI-quality education cannot be offered anything less under the state’s obligation to afford them genuinely equal protection,” she wrote, continuing, “Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
One other case in which Ginsburg was in the majority must be mentioned. In 2012, Ginsburg (although writing a separate opinion) was one of the court’s 5:4 majority that upheld “Obamacare” (ie the Patient Protection and Affordable Care Act of 2010), finding this law’s requirement that most Americans obtain insurance was authorised by Congress’s power to levy taxes. The majority opinion stressed that Obamacare was a valid exercise of Congress’s authority, a legitimate example of social-welfare legislation. Ginsburg had stated that “Health care is not like a vegetable or other items one is at liberty to buy or not to buy.” As she put it, the judgment meant that “in the end, the Affordable Care Act survives largely unscathed.” But maybe not for much longer. Almost immediately after this November’s presidential election the Supreme Court must again consider the legality of the Affordable Care Act, under attack once more, this time from Republican-leaning states led by Texas. A conservative replacement for Ginsburg could dramatically change the outcome of the case.
The number of conservative judges on the court increased during Ginsburg’s time in office, giving them a majority of 5:4. Ginsburg became better known for her dissenting judgments than her majority opinions. Some courts, especially European courts such as the European Court of Justice, do not permit dissenting opinions, the view being that it is important to present a united front. Common law courts do not tend to require such uniformity, and dissenting judgments are issued in both the UK and the US Supreme Courts. In 2016, Ginsburg wrote in The New York Times that: “When a justice is of the firm view that the majority got it wrong, she is free to say so in dissent. I take advantage of that prerogative, when I think it is important, as do my colleagues” (although Ginsburg has also expressed the preference that dissenters speak with one voice). Ginsburg has become famous for her “dissenting collars” (comparable to Brenda Hale’s brooches) which have been likened to “a piece of medieval armour.”
In My Own Words, Ginsburg devoted a chapter to dissents in general, including over the Supreme Court’s history. She cited as memorable the dissent of Justice Curtis in Dred Scott (the 1857 case in which the Supreme Court determined a black person, whether slave or free, could not possess US citizenship). She also highlighted Justice Stevens’s dissent in Citizens United (where the court held that the First Amendment prohibits limits on corporate spending related to political campaign finance)—criticising the majority decision in an interview with the New Republic: “I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.” She also decried the 2008 court decision in District of Columbia v Heller, (confirming the individual right to possess a gun), as “a very bad decision.”
However, it is Ginsburg’s own dissents that bear further examination, and she stressed: “although I appreciate the value of unanimous opinions, I will continue to speak in dissent when important matters are at stake.”
One of her best known dissents was Ledbetter v. Goodyear Tire and Rubber Company, delivered in 2007. In this case, the Supreme Court rejected Lily Ledbetter’s pay discrimination claim because she had not brought it within a 180-day statutory limit. Ginsburg’s trenchant dissent (read directly from the bench, itself unusual) declared that Ledbetter could not have met this deadline, as she did not even know earlier that she had been underpaid: “The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination… Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view.” This was not the end of the matter, however, as in her dissent, Ginsburg also called on Congress to “correct this Court’s parsimonious reading”—which it did. In 2009, President Obama signed the Lily Ledbetter Fair Pay Act, which amended the 1964 Civil Rights Act to reset the limitation period for equal pay lawsuits with every instalment of salary.
Another notable Ginsburg dissent came in the 2014 Hobby Lobby case, yet another 5:4 decision in which the court found that certain companies cannot be required by government to include contraceptive cover in their employees’ health insurance, because the Affordable Care Act’s contraceptive mandate, if enforced on “closely held” corporations, violated the 1993 Religious Freedom Restoration Act. Ginsburg’s dissent was robust, excoriating the majority’s interpretation of religious freedom law and memorably declaring that “The Court falters at each step of its analysis.” She declared that “until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world’,” adding that “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” Ginsburg’s fear was that this “decision of startling breadth” would allow far too many companies and individuals to claim exemptions on grounds of religious belief from laws applying to everyone else. (And subsequent developments suggest that she was right to express this fear.) Her dissent had a considerable impact, going viral and inspiring a YouTube video.
A further high-profile Ginsburg dissent is especially relevant in this US election year. In 2013, in Shelby County v. Holder, Chief Justice John Roberts authored a majority opinion invalidating a fundamental provision in the 1965 Voting Rights Act (VRA). This provision had required certain jurisdictions with a history of discrimination to undergo federal “preclearance,” or oversight, before enacting changes in voting procedures. Roberts’s justification was that the law was no longer needed. Ginsburg’s dissent, however, declared that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” She continued that “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.” And the Shelby decision quickly led to many new state laws imposing onerous voting ID requirements, gerrymandering and other measures including limiting postal votes. We will witness their impact in November.
And while we are on elections… Ginsburg authored a dissent in the case involving perhaps the most notorious contested election of all—to date that is—Bush v Gore. In the 2000 contest, both George W Bush and Al Gore declared victory in Florida before election night was over. However, Florida’s voting system was defective, with poorly designed ballots and counting irregularities. The issue of counting, or recounting, of votes in Florida swiftly found its way to the courts, and to the Supreme Court, which determined 5:4 that the Florida votes could not be counted in the timeline laid out in Title 3 of the United States Code. This decision handed the presidency to Bush. Ginsburg’s dissent was highly critical, stating “The Court assumes that time will not permit orderly judicial review of any disputed matters that might arise’… In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent.”
That might be a fitting ending to this piece, but it is worth adding a coda. In My Own Words, Ginsburg cited an earlier Supreme Court Justice—CJ Hughes, who wrote in 1936 “A dissent in a court of last resort is an… appeal to the intelligence of a future day…” Let us hope that day will come, and Ginsburg’s dissents will become future orthodoxy.