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A Progressive Pioneer

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A Progressive Pioneer

Ruth Bader Ginsburg leaves a formidable legacy. September 20, 2020
Politics and law

With the death of Supreme Court Justice Ruth Bader Ginsburg, the Supreme Court has lost the senior member of its liberal bloc and a powerful advocate for the progressive view of civil liberties. In recent years, Ginsburg became a pop cultural icon, as she was viewed as a bulwark against an increasingly conservative Court. The battle to replace her adds fresh drama to this fall’s contests for control of the White House and Senate, as the prospect of a 6-3 conservative coalition is likely to galvanize both Left and Right.

Nominated by President Bill Clinton in 1993, Ginsburg was the second woman elevated to the Supreme Court. Her tenure on the Court—under Chief Justices William Rehnquist and John Roberts—was not a period of liberal ascendancy. But Ginsburg’s skilled advocacy allowed her to wield influence amidst the Court’s shifting coalitions. During its most recent term, Ginsburg was in the majority for 75 percent of the cases. She was a tactician who worked to build relationships with her fellow justices. She was particularly close with conservative Justice Antonin Scalia, with whom she found common cause on a number of issues, including the Sixth Amendment right of criminal defendants to confront their accusers. Scalia died in 2016.

Still, Ginsburg’s most influential work arguably took place before her elevation to the bench. Having overcome daunting gender barriers, she graduated tied for first in her class at Columbia Law School in 1959, gained a federal court clerkship, and then joined the faculty at Rutgers School of Law, earning tenure in 1969. She later became the first female tenured law professor at Columbia.

In 1972, Ginsburg co-founded the Women’s Rights Project at the American Civil Liberties Union. In this role, she developed a strategy for challenging gender discrimination in the courts. Ginsburg successfully argued five cases before the Supreme Court in the 1970s (she lost a sixth) that collectively created a standard of judicial review for state action that discriminates on the basis of gender. According to this new standard, the burden falls on the state to prove that official classifications based on gender serve “important governmental objectives” and that the discriminatory means employed are “substantially related” to the achievement of those objectives.

On the high court, though, Ginsburg’s efforts to advance her vision of gender equality had mixed results. One noteworthy victory came in a 1996 case involving the Virginia Military Institute, a state-supported all-male military school. In a decision that struck down VMI’s prohibition on female cadets (United States v. Virginia, et al.), Ginsburg, writing for the majority, was able to cite—and build upon—the very cases that she had argued before the Court decades earlier. In another high-profile case, Ledbetter v. Goodyear Tire & Rubber (2007), Ginsburg found herself in the minority when the Court rejected an effort to rewrite judicially the employment-discrimination provisions of Title VII of the Civil Rights Act of 1964. In her dissent, Ginsburg called on Congress to amend Title VII, which it did in 2009, ultimately securing a more legitimate basis for her desired policy goal.

She made her mark in other areas as well. In Olmstead v. L.C. (1999), Ginsburg led a 6-3 majority affirming the right of individuals with mental disabilities to community-based housing under the Americans with Disabilities Act. In Friends of the Earth v. Laidlaw Environmental Services (2000), she authored a 7-2 opinion greatly relaxing the “standing” requirements to bring citizen suits to enforce the Clean Water Act. In her opinion, Ginsburg argued that the decision would serve the goal of making polluters “think twice before polluting again.”

Her years as an advocate taught her the benefits of incremental change. She was critical of the Court’s 1973 decision in Roe v. Wade for having moved too fast in establishing a broad constitutional right to abortion. “I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said in a 2013 interview with the New York Times. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.” Though the same might have been said about gay marriage in 2013, Ginsburg rejected that analogy in her Times interview and went on to vote with the majority in Obergefell v. Hodges, the 2015 decision requiring states to issue marriage licenses to same-sex couples.

Like her friend and colleague Justice Scalia, Ginsburg is perhaps best remembered for her stinging dissents. In Burwell v. Hobby Lobby Stores (2014), she dissented from a decision holding that family-owned and other closely held companies could opt out of the Affordable Care Act’s mandate to offer insurance coverage for certain birth control methods that business owners equate with abortion. Rather than focusing exclusively on competing rights, Ginsburg cogently argued that the majority’s ruling contradicted traditional corporation law. How can business owners take advantage of the corporate form to shield themselves from personal liability, but then argue that the corporation and the owners are effectively one and the same for purposes of religious liberty? While the argument ignores the fact that corporations can only act through their owners, it was undoubtedly a shrewd line of attack.

Ginsburg’s dissents sometimes borrowed arguments from her ideological adversaries. Last year, for example, when the Court upheld Maryland’s Bladensburg Cross—a cruciform memorial to fallen soldiers on public property—Ginsburg’s dissent cited Founding-era documents as evidence of the original meaning of the First Amendment’s Establishment Clause (American Legion v. American Humanists Association). Notwithstanding that foray into constitutional originalism, Ginsburg generally espoused the “living Constitution” theory that empowers courts to update the supreme law of the land to accommodate changing circumstances.

In Bush v. Gore (2000), Ginsburg invoked states’ rights to lambast the majority’s decision to overturn the Florida Supreme Court’s order requiring a manual recount of the presidential ballots in that state. The majority had ignored the basic principle that “federal courts defer to state high courts’ interpretations of their state’s own law,” wrote Ginsburg. “This principle reflects the core of federalism, on which all agree.”

Concern for federalism was less evident in Ginsburg’s dissent in Shelby County v. Holder (2013). In Shelby, the majority struck down a section of the Voting Rights Act under which certain states that had engaged in discriminatory voting practices in the 1960s and 1970s were still required to seek approval from the federal government before making any changes to their voting procedures. “Throwing 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.” That dissent inspired a New York University law student to dub Ginsburg the “Notorious RBG”—a reference to the rapper known as Notorious B.I.G., and a moniker for her that soon went viral.

Ginsburg’s jurisprudence often reflected the results-oriented judicial activism that conservatives rightly condemn. At the same time, one cannot help but admire her pioneering career, her tenacity, and her genuine collegiality—the latter being a commodity that will likely be in short supply as the battle to replace her heats up.

Photo by Brendan Smialowski/Getty Images

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