Ruth Bader Ginsburg: Is SCOTUS Out of Tune With America?

Pool / Getty Images

Pool / Getty Images

Ruth Bader Ginsburg has a legion of fans; one needs only to look at the Notorious R.B.G. blog to understand the appeal.

So Who Is Ginsburg?

She was not the first women to serve as a justice of the Supreme Court. That honor belongs to Sandra Day O’Connor, who was appointed by President Ronald Reagan in 1981. But like O’Connor, Ginsburg — the liberal icon who joined the United States’ highest court in August 1993 — was a pioneer in the legal profession in the 1950s and 1960s, a time when women were just beginning to penetrate previously male-dominated professions. Both Ginsburg and O’Connor graduated at the top their respective law school classes, but neither received a single job offer upon earning their diplomas.

As a litigator in the 1970s, Ginsburg argued some of the most important women’s rights cases in Supreme Court history, even while her use of both her married and maiden names confused then-Chief Justice Warren E. Burger, who introduced her to the bench as first “Mrs. Bader” and then “Mrs. Ginsburg.” The cases she argued knocked down gender discrimination laws, including one state statute that allowed jury duty to be optional for women, and she helped remove arbitrary gender distinctions that kept women from entering certain professions, including law.

During her early years as an associate judge, Ginsberg was described as minimalist and cautious, but that characterization has not prevented her from emerging as an important counterweight to her male colleagues, who she says often have a “blind spot” on women’s issues. Her dissents in key cases, most notably last June’s [Secretary of Health and Human Services Sylvia] Burwell vs. Hobby Lobby Stores and October’s Voting Rights case, have showcased the 81-year-old justice’s belief that the court system has failed to defend the rights of average Americans, particularly women and minorities.

Her role on the court can be looked at through a number of lenses. Describing Ginsburg as the longest serving liberal justice is not inaccurate, but it lacks nuance. Before her appointment, Ginsburg co-founded the Women’s Rights Project at the American Civil Liberties Union in the early 1970s, where she served as chief litigator, arguing several landmark cases in front of the Court. By targeting a number of government laws that treated men and women differently, including 1971’s Equal Protection case Reed vs. Reed, Ginsburg “helped turn the Court a hundred and eighty degrees, from a very hands-off attitude, which had often been expressed very cavalierly, to one where they struck down law after law that treated the sexes differently,” as Susan Deller Ross, a professor at Georgetown University Law Center, told The New Yorker.

Throughout her years on the Supreme Court, Ginsburg has not embraced the role of the dissenter to the extent of Thurgood Marshall or William J. Brennan, but just as Marshall left his mark on civil rights and criminal procedure jurisprudence, Ginsburg has a legacy in the women’s rights movement. That role has not only made her into an important liberal voice in the court, but placed her at the center of the debate over how the Constitution should be treated.

What Does the Constitution Have to Do With Women’s Rights?

The term “judicial activism” was introduced to the American public by historian (and non-lawyer) Arthur Schlesinger Jr. in a January 1947 Fortune magazine article titled: “The Supreme Court: 1947.” He explained that the term describes justices for whom law and politics are inseparable, and who want judicial decisions to be “result-oriented.” Legal scholars generally agree that Schlesinger’s definition of judicial activism was vague, allowing it to be appropriated by both conservatives and liberals for the purpose of criticizing each other. Historically, however, it has been a term hurled at liberal justices by conservatives who believed that in so-called liberal decisions like Roe vs. Wade and Lawrence vs. Texas  which created previously nonexistent constitutional rights to abortion and sexual privacy under the 14th Amendment’s substantive due process clause — the court legislated rather than interpreted constitutional law.

The Heritage Foundation described Roe vs. Wade as a prime example of the court “reading broad constitutional terms divorced from any textual or originalist moorings, thereby making them empty vessels into which they can pour any policy preferences they desire.” Comparatively, the liberal reading of the doctrine argues that 14th Amendment’s due process clause was intended to protect rights implied not enumerated by the Constitution.

But the judicial activism critique has long been code for simply disliking the decision. Its use has become all the more common as a general consensus favoring judicial restraint over judicial activism has formed among U.S. leaders and the public alike. Ginsberg herself told Elle magazine that “activism is like ‘beauty is in the eye of the beholder.’ So the answer to the question: If a judge is called an activist, you know the person saying that doesn’t like the decision.” If judicial activism is described as a decision that either overturned a law or overruled precedent, it can not always be bad.

Take the case of Brown vs. Board of Education for example, when the court decried that laws requiring the segregation of the races in education to be unconstitutional, justices overturned a 58-year-old law. That ruling has since become one of the most important and lauded in Supreme Court history. Yet for Republicans, the phrase “judicial activism” is a dirty one, signifying any court decision that will have a liberal outcome. In 2008, the Republican platform declared that, “[J]udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public.”

Justice Clarence Thomas has long rejected the doctrine, claiming “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against ‘unfairness.’” But Cato legal scholar Timothy Sandefur argues that it is not only as a legitimate a part of the U.S. Constitution as the separation of powers, but a guarantee that the government will treat its citizens lawfully. Since the 1960s 14th Amendment’s Due Process and Equal Protection clauses have been examined by the court, producing rulings that gave Americans the right to contraceptive coverage (Griswold vs. Connecticut), the finding that there was no compelling government interest in forbidding interracial marriages (Loving vs. Virginia), and universities’ use of rigid racial quotas was unfair (Regents of the University of California vs. Bakke).

Even while the sitting Supreme Court has made fewer landmark rulings in the mold of Brown vs. Board of Education and Loving vs. Virginia, Ginsburg has grown into a louder voice on the bench. Ginsburg is by no means the most important vote; that designation belongs to Justice Anthony Kennedy — considered to be the most moderate judge who is “extremely likely to be the deciding vote on most issues,” according to the statistical analysis of FiveThirtyEight’s Nate Silver. But her dissents are nevertheless important judicial documents, as are the dissents of other justices throughout U.S. history. Sure, narrowly decided cases may carry less weight in the public’s eye; as Ginsburg noted in a speech before the Minnesota Law Review, the Court’s unanimous decision in Brown vs. Board of Education, where all nine Justices signed one opinion, made “it clear that the Constitution does not tolerate legally enforced segregation in our Nation’s schools.”

Yet, as former Chief Justice Charles Hughes, a conservative who served between 1930 and 1941, once said: “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.” Ginsburg’s dissents in cases from Hobby Lobby to Texas’s Voter ID law provide a counterweight in America’s legal tradition — representing the interests of women and minorities, issues which the current court often places second to a strict interpretation of the Constitution.

What Do Ginsburg’s Recent Dissents Show?

In recent years, her voice on the court has grown stronger as her frustrations with the conservativeness of the court have increated, opined The New Yorker’s Jeffrey Toobin in a 2013 profile. “Ginsburg’s effectiveness on the Court may also have been limited by what appears to be a temperamental disharmony with [swing vote Anthony] Kennedy, who currently wields so much power. Kennedy writes flowery, discursive, rhetorical opinions; Ginsburg writes narrowly (and, often, dully),” he argued. Yet, nevertheless, as she urges for the Court to uphold women’s rights, minority rights, affirmative action, and the rights of others long unheard by the court, her words are gaining notice.

When Ginsburg looks at the Court’s recent rulings, she sees an inconsistency. When making rules about gay rights, the court employs the language of “equal dignity” and worries about the protection of fundamental values of “liberty and equality,” as she noted in a speech earlier this year. That is quite a change for a court that allowed gay sex to be criminally prosecuted just three decades ago. But in cases that involve gender, the court has not fully grasped “the ability of women to decide for themselves what their destiny will be,” Ginsburg said. In her opinion, the court’s all-male five-strong conservative majority do not understand the challenges facing “authentic” equality for women.

In an interview following June’s 5-to-4 ruling that allowed closely held for-profit companies to claim religious exemption to the Affordable Care Act’s contraceptive mandate, Yahoo News Anchor Katie Couric asked Ginsburg if she believed “that the five male justices truly understood the ramifications of their decision?” In answer, the justice responded that, “I would have to say no.” The five more conservative judges on the bench, who all happen to be men — Justices John Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas — decided that the government has “failed to show that the mandate is the least restrictive means of advancing its interest in guaranteeing cost-free access to birth control,” meaning that those justices who wrote the majority opinion believe there are other ways the government can ensure that Americans employed by companies with religious objections to the mandate can obtain contraceptives.

But where the conservative male justices framed their ruling as the preservation of religious freedom, Ginsburg saw the opposite. In her 35-page dissent, she wrote that Hobby Lobby’s owners had “no constitutional right to foist” their religious objections with certain methods of birth control “on the hundreds and hundreds of women” who work for them. “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”

When a Texas appeals court upheld the constitutionality of the state’s newly minted Voter identification laws, the strictest in the nation, the ACLU propelled the case to the Supreme Court, arguing the decision could disenfranchise as many as 600,000 citizens. The goal of ID laws are to combat fraud, but the problem is that voter ID laws do little to nothing to stop a number of types of fraud, including vote buying, coercion, stuffing ballot boxes, voting from the wrong address, or fake registrations. While such measures do prevent identity fraud, political scientists general agree that type of fraud is rare. What voter ID laws do accomplish is suppressing voter turnout, especially among demographic groups that tend to vote Democratic — younger people, low-income groups, and minorities.

The 7th Circuit Court of Appeals Judge, Richard Posner, a conservative who dissented from his colleagues earlier this month when the refused to take up a challenge to Wisconsin’s voter ID law, wrote that such laws serve as a 21st century literacy test, although he did not use that exact phrase. But he did say getting an ID could cost between $75 and $175, which is higher than “the $1.5o poll tax outlawed by the 24th Amendment in 1964.” Ginsburg herself — echoing Posner’s concern — said that, “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law … one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”

Why Is Ginsburg Criticized?

Where critics say Ginsburg is too activist of a judge, a number of legal scholars disagree. “She’s a common-law constitutionalist,” Steven Calabresi — a professor at Northwestern University School of Law, who clerked for Robert Bork before his ill-fated appointment to the Supreme Court — told The New Yorker. “She thinks the Court should not go too far in any given case.” Ginsburg is “very cautious, conservative in a Burkean sense, not at all in the mold of William Brennan or Thurgood Marshall,” added Jamal Greene, a professor at Columbia Law School. “She fundamentally does not believe that large-scale social change should come from the courts.”

Follow Meghan on Twitter @MFoley_WSCS

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