FEBRUARY 27, 2019
Editor’s Note: The Skirball Cultural Center in Los Angeles currently hosts an exhibit dedicated to the life and work of Supreme Court Justice Ruth Bader Ginsburg, the second woman to sit on the high court, and for most of her tenure on the bench, its most liberal member (the exhibit runs until March 10). Recently, with the sponsorship of the Beverly Hills Bar Association, LARB contributor Stephen Rohde delivered the following talk about the contribution of Justice Ginsburg to the nation’s highest court.
FAR BEYOND the typical “thank you” one routinely offers one’s hosts, I am especially grateful because this invitation prompted me to dig deep into the extraordinary life and career of Justice Ruth Bader Ginsburg. I read a lot about her. I read what she’s written on and off the bench. I have always felt a special bond with her since she taught at Columbia Law School, which I attended, and she was deeply involved with the ACLU, where I have been very active for decades. But in preparing for this talk, I learned so much more about her and expanded my view and appreciation of her as you will hear.
You are all in for a treat when you take the guided tour of this wonderful exhibit, which has been mounted here at the Skirball in recognition of the life and work of Justice Ginsburg. I do encourage you, at the end of the guided tour, to stay behind and spend more time dwelling on the surprising details of the life of this marvelous and influential American.
Fortunately, despite Fox & Friends premature Tribute Image broadcast on January 21, indicating that Justice Ginsburg had passed away, by all reports she is doing well and attending to court business, which anyone who cares about the Court and the Constitution hopes will continue for many, many years.
In just the last two years, two documentaries have been produced (one of which was just nominated for an Academy Award), this exhibit has been opened, the feature motion picture On the Basis of Sex has been released, and it has just been announced that Justice Ginsburg will be immortalized in the new Lego movie, complete with gavel and robe. Unprecedented and well-deserved attention is being paid to a sitting Supreme Court Justice. By and large, the focus has been on the revolutionary role which Ruth Bader Ginsburg has played — first as an advocate and then on the Supreme Court — in developing the solid constitutional foundation protecting the rights of gender equality — a term she is said to prefer over women’s rights.
But today, I want to briefly make the case that it does a disservice to the entire span and depth of Justice Ginsburg’s life and work to limit her legacy to gender equality or to reduce her career to a generic “notorious” liberal Justice. This in no way is intended to detract from her groundbreaking role in the historic revolution in gender equality, nor am I so naïve as to assume that her work in that regard is over, especially as Roe v. Wade and a women’s reproductive freedom are about to be challenged perhaps as never before. Let’s not forget that within a few weeks of the swearing in of Justice Brett Kavanaugh, the state legislatures of West Virginia and Alabama passed amendments to their state constitutions that would outlaw abortions if Roe v. Wade is ever overturned. So Justice Ginsburg’s vote and the power of her intellectual force on the Court when it comes to a woman’s right to choose may be more important than ever.
My premise today, is that when one examines more deeply the values which Justice Ginsburg’s developed throughout her life and her entire body of work during her quarter century on the Court, you will agree that by any measure she is one of the greatest jurists in American history.
In addition to her powerful voice on the Court upholding gender equality, including her seminal majority opinion in the 1996 Virginia Military Institute case, she has written landmark majority, concurring, and dissenting opinions upholding the rights of people with mental disabilities to receive treatment in community-based settings, not isolated in an institution; Fourth Amendment rights against illegal searches and seizures requiring the suppression of evidence to prevent the government from profiting from its mistakes; voting rights; intellectual property rights; the right of activists to sue polluters; affirmative action using race-conscious admissions; and the citation of foreign and international law for its non-binding, persuasive force in discovering universal values. A full and complete examination of Justice Ginsburg’s record reveals the extraordinary breadth and depth of her judicial philosophy based on her belief in the dignity and value of every human being.
The origins of that judicial philosophy can be traced to an editorial she wrote at the age of 13 in her elementary school newspaper in Brooklyn, New York, in which she examined the “fine ideals and principles” contained in five great documents to which can be traced “all the benefits to humanity” — namely the Ten Commandments, Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, and the Charter of the United Nations. You can examine this editorial in the exhibit you are about to visit.
Young Ruth Bader wrote:
It is vital that peace be assured, for now we have a weapon that can destroy the world. We children of public school age can do much to aid in the promotion of peace. We must try to train ourselves and those about us to live together with one another as good neighbors for this idea is embodied in the great new Charter of the United Nations. It is the only way to secure the world against future wars and maintain an everlasting peace.
Thirteen years old!
A few years later, her mentor at Cornell University, the eminent constitutional scholar and writer on civil liberties Robert Cushman, first encouraged her to go the law school. In the early 1950s, in the midst of McCarthyism, at first Ruth confessed she “just wanted to get good grades and become successful.” But Professor Cushman supervised her independent studies project and then hired her as his research assistant to document McCarthy’s assault on civil liberties. She recalled two lessons. “One is that we were betraying our most fundamental values, and, two, that legal skills could help make things better, could help to challenge what was going on.”
In 1953, in her senior year at Cornell, Ruth ventured into the realm of published legal argument. Two Cornell law students had written a letter to the editor of the Cornell Daily Sun expressing their support for Attorney General Herbert Brownell’s proposal to enact legislation allowing federal prosecutors to introduce wiretap evidence secured without a warrant in espionage cases.
In her comprehensive letter to the editor — which is also on display here at the Skirball — Ruth had the temerity to not only challenge the law students, but the Attorney General himself. She pointed out that “[w]hen attempts to prevent certain forms of behavior may place individual rights and liberties in peril, the criminal sanction should be saved as a last resort.”
She acknowledged that wiretapping may save government investigators time and effort, but at what cost? She quotes a police officer in India who once said: “It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go out in the sun hunting for evidence.”
She argued that “restraints on individual rights in the field of individual privacy, morality, and conscience can be a cure worse than the disease.” After making a series of arguments, she concluded with a measured clarity that would mark all her future writing in legal briefs and Supreme Court opinions: “The general good Mr. Brownell’s proposal is expected to accomplish seems to me to be outweighed by the general harm it may well do.”
In these early writings, one of her biographers has observed we see “certain hallmarks of her legal writing and thought” which would emerge in her legal arguments and judicial opinions: “[H]er care in choosing words, her wariness of politically motivated prosecution, her concern that shortcuts in the name of efficiency often reduce effectiveness in the long run, and her unswerving commitment to individual rights and the presumption of innocence.”
In February 2017, shortly after the inauguration of President Trump, Justice Ginsburg was asked in an interview, what she thought makes America great. Here is her answer: “The idea of our nation being receptive to all people, welcoming to all people.”
And that’s how she views the Constitution and the Bill of Rights and the broad promises and principles set down in those founding documents. Justice Ginsburg has said that the Constitution is not “a document essentially frozen in time as of the date of its ratification.” Parting company with her good friend, the late Justice Antonin Scalia (with whom she shared a love of opera, but seemingly little else when it came to the law), Justice Ginsburg said: “I am not a partisan of that view.” US jurists, she said, “honor the Framers’ intent to ‘create a more perfect Union,’” and she quoted approvingly what Justice Oliver Wendell Holmes wrote in an opinion in 1920:
When we are dealing with words […] [in] the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. […] The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
Let me conclude by devoting a few minutes to the role in which Justice Ginsburg has increasingly found herself since the ascendency of the conservative majority on the Court, under Chief Justices William Rehnquist and John Roberts. During her 12 terms on the Rehnquist Court from 1993 to 2005, she wrote only seven dissents. But that has changed markedly during the Roberts Court.
Commenting on the second term of the Roberts Court, when Justice Ginsburg took the unusual step of reading aloud not one but two bench dissents, Linda Greenhouse, the veteran New York Times Supreme Court reporter, wrote in a front-page story that the current term will be remembered “as the time when Justice Ruth Bader Ginsburg found her voice, and used it.” By 2014, she had delivered a whopping 12 bench dissents, becoming the Roberts Court’s most frequent bench dissenter. This included a record four such dissents in the 2012–’13 term alone — more than any other Justice in a single term in almost 30 years.
Justice Ginsburg has written and spoken publicly about the important role dissenting opinions play on the Court. She believes an impressive dissent can lead the author of the majority opinion “to refine and clarify her initial circulation.” On occasion, “a dissent will be so persuasive that it attracts the votes necessary to become the opinion of the Court.”
Primarily, in writing her powerful and sometimes blistering dissents, Justice Ginsburg aligns herself with the views of Chief Justice Charles Evans Hughes, who in 1936 wrote that a “dissent in a court of last resort is an appeal […] to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
In 2000, in the highly controversial 5-4 decision in Bush v. Gore, which installed George W. Bush as president, the majority held that there was no way to count all the votes in Florida within the timeline set forth in the federal code, despite the fact that the Court itself had halted all recounts three days prior to issuing its ruling, basically letting the clock run out before deciding it was too late. After describing the facts in detail, Justice Ginsburg wrote that “[i]n sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy that the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.” And instead of the traditional closing, “I respectfully dissent,” Justice Ginsburg allowed her vehemence to show through. She simply wrote, “I dissent.”
In 2013, President Bush having by then appointed John Roberts as Chief Justice, the Court confronted the persistent issue of racially discriminatory voting regulations adopted by states with a history of discrimination in the case of Shelby County v. Holder. In another narrowly decided 5-4 ruling, the conservative majority held Section 4 of the historic Voting Rights Act (VRA) unconstitutional. Justice Ginsburg issued a stern dissent:
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. […] Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. […] In my judgment, the Court errs egregiously by overriding Congress’s decision.
And one final example of a searing dissent written by Justice Ginsburg came in July 2014 in the case of Burwell v. Hobby Lobby Stores. In yet another 5-4 decision, the conservative majority exempted a nationwide arts and crafts company named Hobby Lobby from providing full health insurance benefits, including contraception, to its female employees in light of the owner’s “sincerely held” religious beliefs against contraception.
Once again, Justice Ginsburg did not hold back. In her fierce and caustic dissent, she wrote that the
exemption sought by Hobby Lobby […] would […] deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. […] Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. […] Would the exemption […] extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? […] Not much help there for the lower courts bound by today’s decision. […] Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ […] The court, I fear, has ventured into a minefield.
These short excerpts do not do justice to the full scope of Justice Ginsburg’s dissents, which are all scrupulously written with detailed citations to the factual record and painstaking analysis of the law and the Constitution. Her dissents genuinely appeal “to the intelligence of a future day, when a later decision may possibly correct the error into which” she believes “the court to have been betrayed.”
I hope I have said enough in the limited time we have had together to sketch out the broad sweep of Justice Ginsburg’s judicial philosophy based, in her own words, on “the idea of our nation being receptive to all people, welcoming to all people.” Built on her towering achievements in the field of gender equality and expanded across that entire spectrum of constitutional rights and liberties, Justice Ruth Bader Ginsburg is truly a Justice for All Seasons.