Ruth Bader Ginsburg achieved greatness on the Supreme Court as its primary exponent of gender equality. She also left her mark on the law of civil procedure through a series of meticulously crafted and reasoned opinions. And she wrote a prophetic dissent in Shelby County v. Holder, 570 U.S. 529, 590 (2013)—which branded the majority’s overturning of a landmark voting rights provision as “throwing away your umbrella in a rainstorm because you are not getting wet.” But her judicial legacy in criminal law is decidedly more mixed.
Unsurprisingly, as the leading voice of the Court’s progressive wing, many of Justice Ginsburg’s better-known criminal law opinions favored the rights of criminal defendants. For example, in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), she vindicated a capital defendant’s choice to present a futile defense, even at the price of a potential death sentence, in order to respect his autonomy interest in charting his own fate. She repeatedly lodged Fourth Amendment objections to perceived police overreaching and protested against the expanding good-faith exception to the exclusionary rule—occasionally in majority opinions, but more often in dissent. See, e.g., Herring v. United States, 555 U.S. 135 (2009); Illinois v. Caballes, 543 U.S. 405 (2005). And she resisted governmental efforts to stretch federal offenses beyond their proper compass, as in Yates v. United States, 574 U.S. 528 (2015) (holding that a fish was not a “tangible” object under an obstruction-of-justice statute), and Skilling v. United States, 561 U.S. 358 (2010) (narrowing the scope of the “honest services” fraud statute).
But for almost every opinion in which Justice Ginsburg struck a blow for defendants, she wrote equally strong decisions for the government. For instance, she rejected a capital defendant’s autonomy interests in Florida v. Nixon, 543 U.S. 175 (2004), where defense counsel, without the defendant’s consent, had conceded the defendant’s guilt in a failed effort to avoid a death sentence; she upheld a waiver of Miranda rights in Florida v. Powell, 559 U.S. 50 (2010), based on a commonsense reading of the warnings; and she sustained broad criminal applications of federal criminal law in United States v. O’Hagan, 521 U.S. 642 (1997), where a corrupt attorney misappropriated client information for securities trading.
Perhaps her most consequential votes in any criminal case reflect this duality. In United States v. Booker, 543 U.S. 220 (2005), Justice Ginsburg joined Justice Stevens’s opinion invalidating the Federal Sentencing Guidelines as infringing the Sixth Amendment’s jury trial guarantee. But she then switched sides to join Justice Breyer in retaining the Guidelines to serve an advisory role in federal sentencing. Her vote was pivotal to both 5-4 decisions, as she was the only justice in the majority for both the constitutional and remedial holdings. But she wrote not a word. Those silent votes were emblematic of her record in criminal jurisprudence: She did not shy away from bold use of the Constitution, but she tempered her support for defendants’ rights with pragmatic concerns for the administration of justice and a trust in judicial judgments.
But before we knew Ruth Bader Ginsburg the jurist, we heard the voice of Ruth Bader Ginsburg the advocate. She shined in that role. winning five of the six cases she argued. Each one advanced her project of incrementally establishing gender equality as a principle of law. And in her final appearance as a Supreme Court advocate, the legal world saw, for the first and only time, Ruth Bader Ginsburg as criminal defense attorney.
In Duren v. Missouri, 439 U.S. 357 (1979), Ginsburg appeared at the podium to defend the rights of Billy Duren, convicted murderer. Duren attempted to rob a post office in Jackson County, Missouri. When Carrol Riley tried to stop him, Duren shot Riley in the head and killed him. He then shot and wounded a bystander, Lee Kinnison. A jury found him guilty of first-degree murder and assault with intent to kill, and he was sentenced to life imprisonment.
But there was a hitch, one that attracted Ginsburg’s attention. She then headed the ACLU’s Women’s Rights Project and had developed and litigated a series of pathmarking—to use one of her favorite words—gender equality cases. These cases attacked laws that explicitly differentiated on the basis of sex. Often, she chose cases that disadvantaged men as the means of challenging reliance on stereotypes that disadvantaged women. In a single decade during the 1970s, she wove a tapestry of precedents, on areas ranging from military service to medical care, from social insurance to workers’ compensation, to press forward a new jurisprudence of gender equality.
Duren afforded a perfect opportunity to further the equality line of precedent. Duren was tried in Jackson County, Missouri, where women constituted 54 percent of the adults in the county but only about 15 percent of members of the jury venire, from which petit juries were selected. Duren himself faced an all-male jury, chosen from a panel of 53 in which only five potential jurors were women. This winnowing flowed from a system that allowed women, on request, to be exempted from jury service—and that presumed that women had requested an exemption if they did not return a summons. Duren’s public defender was a lawyer in his early 20s named Lee Nation. He argued that the Missouri system violated the Sixth Amendment’s requirement that an impartial jury be drawn from a fair cross section of the community. Duren’s argument had wind in its sails. The Supreme Court had held only a few years earlier that Louisiana’s opt-in system for women to serve on juries violated the Sixth Amendment. The Court’s holding in Taylor v. Louisiana, 419 U.S. 522 (1975), led three of the five states that had automatic opt-out systems for women to abandon that practice. But Missouri held fast. When it rejected Duren’s reliance on Taylor, Lee Nation turned to the Nation’s highest court. On May 1, 1978, the Supreme Court granted review.
Although the ACLU Women’s Rights Project had not been involved before certiorari was granted, it quickly realized Duren’s potential. It was the perfect case to continue to press the boundaries for gender-equality law.
Duren epitomized three major themes of Ruth Bader Ginsburg’s litigation strategy. First, she prized cases in which the victims of discrimination were male. This reflected her intuition that showing how gender discrimination harmed both sexes would increase her power to persuade an all-male Supreme Court. Second, Missouri’s law reflected stereotypes about women’s role as homemaker and the “weaker sex.” This outmoded image proved ripe for attack as women surged into the economy and increasingly left pre-WWII conceptions of their societal role behind. And third, Duren was the perfect follow-on to Taylor. It presented the chance for an incremental extension from “opt in” to “opt out” systems that seemed all but ineluctable. This move would not be a giant leap, but Ruth Bader Ginsburg understood that many small steps would amount to a significant journey over time.
The ACLU Women’s Rights Project was among more than a dozen organizations that reached out to Lee Nation. But Ginsburg won the contest because of her litigation track record and the ACLU’s offer to provide free work product. The ACLU volunteered to edit Nation’s brief, pay for printing, and pay to bring him to New York for argument preparation. Nation gratefully accepted. And the ACLU then totally rewrote the brief. Before the argument, Ruth Bader Ginsberg hosted Nation at her home to prepare, giving the 25-year-old her personal attention and encouragement—possibly even making chicken soup when he came down with a cold—as he contemplated arguing before the nation’s highest Court.
For his part, Lee Nation agreed to share the spotlight at argument with the ACLU, and the Supreme Court—in a move rarely seen today—allowed two lawyers to take the podium to represent Billy Duren.
As a rule, the ACLU Women’s Rights Project compulsively prepared for oral arguments. It would outline the presentation, zero in on relevant precedents, and conduct at least one moot court, often more than one. Ruth Bader Ginsburg far exceeded that level of preparation. Her argument notes are preserved in the Library of Congress and provide a window into her thinking and meticulous approach.
Unlike advocates who use notecards or key words on a single page as prompts at the podium, Ruth Bader Ginsburg scripted her argument in detail. Her notes span eight typed pages. She used personal abbreviations to pack in added detail and edited by hand to refine her language and citations. Her carefully planned written introduction pulled no punches. After briefly identifying the issues, she addressed “the complete absence of justif. for exempting ‘any woman’” from jury service. The Missouri court’s reasoning, she wrote, “in 2 key respects, is topsy turvy.” Not just wrong. Not just misguided. Topsy turvy. A lesser advocate would not have planned such evocative words. But Ruth Bader Ginsburg had game—and she knew it.
The rest of her script unfolded with equal verve. She quickly pivoted from the Sixth Amendment right of “the crim. D’s . . . to a fair chance for a jury genuinely representative of the community’s complexion” (an alluring alliteration) to her real concern: Archaic stereotypes alone allowed women, but not men, to opt out of jury service. She underscored her point with irony:
the vaunted woman’s priv., viewed v. history’s backdrop, reflects and perpetuates a certain way of think abt. w---,” who, “traditionally, were deemed lesser cits, persons not =ly respons. w/men (+ not really needed or wanted) for partic. in the processes of dem. gov’t.
Shazam! And that was only page one.
Continuing, Ginsburg addressed the hardest point: If men and women are equal (and equally impartial), why should it matter to the defendant’s fair cross-section right whether men or women served on the jury? This question provided a striking moment at argument. But first, let’s take a peek at how she anticipated answering:
M a subst. to w? Taylor (419/531-32): Yes, m+w are persons of = dig. + shld be counted =ly by their G + before the law;
but they are not the same, there are diffs. bet. them most of us value hily.
[If shoe on other ft., who wld cl. panels 85% f, 15% m truly rep. of community’s comp.]
The remainder of her notes reveal the art of weaving record details into a compelling legal argument. For instance, she quoted the jury commissioner’s testimony about how he hunted down men who failed to respond to jury summonses but assumed that a woman who failed to show just “doesn’t want to serve.” Her sarcasm drips off the page. She also included a footnote with dazzling statistics about the rising percentage of women in the labor force, citing figures drawn from the Court’s decision in Taylor, the petitioner’s brief, and the Solicitor General’s brief. And in one handwritten note, she struck a typewritten passive-voice sentence to craft her own limiting principle to answer whether states can have professional exemptions (for doctors and lawyers and such), replacing it with an RBG classic: “eliminating the excuse for any woman clouds no reasonable j[ury] s[ervice] exemption.” Then she moved to her merits conclusion: “In sum, no sense at all nourishes Mo’s soley s[ex]-b[ased] exemption.” From there, her notes glide to a tightly reasoned argument that the constitutional error was not harmless and that “the judicial oblig., therefore, is to render a decree elim. the past patter, + barring advent of a like const. defect in the future.”
Oral argument in the Court is inherently dramatic. The ornate courtroom, with its 44-foot high ceiling, mahogany bench, red velvet drapes, Italian marble columns, and Spanish marble friezes with images of lawgivers, all contribute to a sense of awe and power. The combined effect can be intimidating, especially to a lawyer arguing his first case. But Lee Nation was not intimidated. Nevertheless, his argument began inauspiciously. Shortly after his opening sentences, the Chief Justice interrupted him with an instruction to crank up the podium so the Court could hear him better, followed by a guidance that Nation was turning the crank the wrong way. Any advocate could be thrown by that debut, but Nation took it in stride and gave long, calm, and uninterrupted explanations of Missouri’s jury selection system.
His only substantive exchanges came when Justice Stewart pressed him on whether “lawyers and judges and dentists and doctor and clergymen and teachers” qualified as identifiable groups under the Sixth Amendment. Nation said that the lower courts had not so held, but Stewart retorted: “But they are, . . . even in the common meaning of that phrase.” Nation held his ground, saying that those groups were not “important enough that we need to include them on juries.” Justice Rehnquist suggested that “a lawyer can make a much bigger impact” as a juror than a “woman as a woman or a Mexican-American as a Mexican-American.” Nation conceded the point but noted that lawyers “are a very small percentage of community.” With that, he asked the Court to reverse the judgment and sat down.
It was Ruth Bader Ginsburg’s turn. Chief Justice Burger invited her to speak by saying, “Mrs. Ginsburg, you may lower the lectern if you would like.” Her response—“Yes, I could do that”—signaled her comfort and confidence. She turned the crank handle. Then she took over the proceedings.
Mr. Chief Justice and may it please the Court. My argument addresses the citizen’s duty tied to a defendant’s fair cross section right and the complete absence of justification for exempting any woman.
She spoke with clarity and force. Not a pin dropped. After summarizing the Missouri supreme court’s ruling, she stated that its “reasoning in two key respects is topsy-turvy.” The first was that Duren lost his right to the chance of a representative jury because of historic stereotypes about women, who “traditionally were deemed lesser citizens.”
Chief Justice Burger broke in. This history, he said, “wouldn’t concern Mr. Duren, would it?” Ginsburg stayed on track, dismissing the state’s exclusion of women from “participation in the democratic process of government” as “hardly a privilege.” And Duren’s fair-cross-section right, she added, could only be fulfilled by a “correlative duty of the citizen to show up for jury service when summoned.” In that way, she had neatly drawn a line from (a) Duren’s Sixth Amendment right to a jury drawn from a fair cross section of the community to (b) a citizen’s duty to answer the call to jury service—and then linked that back to the state’s unjustified exclusion of women based on outmoded stereotypes. Burger’s first attack was repulsed.
The Chief Justice did not give up, however, but turned to questioning whether the fact that few doctors served on juries was problematic. But Ginsburg cut him off before he even finished the question. Neutral categories, she explained, that certain occupations should not be interrupted by jury service advanced the community’s interests. Those exclusions were valid, while sex-linked assumptions about competence to serve were not.
Ginsburg’s oral argument cannot be fully captured by reading it on the cold page. It has to be heard. The audio reveals her voice rising and falling with emphasis and amazed disdain of the state’s rationale for excusing women:
the state is providing an ineludible message that male citizens are counted by Government as the essential participants of the administration of justice but the female citizens are not so counted, their service is expendable.
She drove the point home again and again.
But then came Justice Stevens. He began, with his characteristic courtesy: “Mrs. Ginsburg, may I ask you a question?” Then he went right to the heart of the issue:
If we look at it from the point of view of the defendant and you take the view as I think you do that men and women are essentially fungible for purposes of jury service, how is the cross section hurt if women are excluded?
Ruth Bader Ginsburg drew on her rehearsed words to answer with a lilt in her voice:
That was an issue that the Court addressed in Taylor against Louisiana. Yes, men and women are persons of equal dignity and they should count equally before the law, but they are not the same.
There are differences between them that most of us value highly.
But Justice Stevens was not deterred by precedent. He continued with his pursuit:
What is the relevant difference between men and women for the purposes of jury service, from the point of view of the defendant?
Ginsburg paused, then repeated the question—the only time in the argument she momentarily lost her footing.
What is the relevant [difference]? Is that indefinable something.
The Court’s official transcript indicates “Laughter.” And Justice Stevens pounced:
That sounds kind of like a stereotype answer to me.
The Court’s transcript does not indicate “laughter,” but the audio reflects that Ginsburg herself gave a short laugh before responding:
I think that we—perhaps all understand it when we see it and we feel it but it is not that easy to describe, yes, there is a difference.
Justice Stevens let the point drop. Perhaps the entire courtroom recognized the truth of this point.
From there, Ginsburg’s argument continued on to more technical ground. She dissected Missouri’s selection system; refuted harmless error arguments; allayed the fear that the jailhouse doors would spring open if Duren prevailed; and explained the law of retroactivity. Ginsburg handled all of those matters with mastery worthy of a longtime criminal specialist.
And then she sought to conclude by repeating her point that the unconstitutionality of Missouri’s system was established by Taylor. But one more thing happened before she could sit down. Justice Rehnquist broke in:
You won’t settle for putting Susan B. Anthony on the new dollar, right?
The Court’s official transcript records “Laughter,” but it was faint and nervous. Ruth Bader Ginsburg herself maintained an icy silence. The chief justice closed off the point with this strange comment:
I think you have no jurisdiction to make that concession, Mrs. Ginsburg.
And so the future justice ended her short career as a criminal appellate lawyer.
In his brief notes on the argument, Justice Blackmun scored Ginsburg’s argument a 6 out of a possible 8—a high mark on Justice Blackmun’s exacting scale. She fared better than Lee Nation, who earned only a 4. It was to be her last appearance as an advocate before the Court.
The vote after the argument was lopsided in Duren’s favor. Only Justice Rehnquist, who had dissented in Taylor, indicated that he was “troubled” by the case and its implications. A month after the conference, Justice Rehnquist circulated a memorandum indicating his intent to file a solo dissent. He recognized that because he was “so badly outvoted at conference,” the only purpose of his dissent would be, as Charles Evans Hughes had said, to “appeal to the brooding spirit of the law.” He excused his delay in circulating a dissent because he had found it “difficult to commune with that spirit” during the Court’s December argument session
On January 9, 1979, just two months after the argument, the Court issued its opinion. Predictably, the Court embraced Duren’s argument and reversed the judgment below. Duren v. Missouri, 439 U.S. 357 (1979). Justice White’s opinion for the Court made short work of Missouri’s arguments to wriggle out from under Taylor. It then announced a framework for analyzing fair-cross-section claims in future cases. Id. at 367–68.
Ginsburg and the ACLU thus not only won the case. Their work established the legal standards for all future fair-cross-section claims. And the Court’s rejection of stereotypical justifications for discrimination was another milestone for Ginsburg in her quest to bring gender equality into the law. Duren has had a lasting legacy, with more than 2,700 citations in lower court opinions—more than all but a handful of criminal-law opinions she later wrote for the Court. As for Billy Duren, he was convicted on retrial but served out his time and was later paroled.
On April 14, 1980, President Carter nominated Ruth Bader Ginsburg to a seat on the DC Circuit vacated by the death of Judge Harold Leventhal. The act of Congress that created new judgeships for Carter to fill specifically noted that “only 1 percent of Federal judges are women and only 4 percent are black” and suggested that the president give consideration to selecting qualified individuals “regardless of race, color, sex, religion, and national origin.” It is difficult to imagine Congress taking that step without the legal revolution in gender equality that Ruth Bader Ginsburg had championed. As Nanette Laughrey—who was Missouri’s counsel in Duren and who later became a Missouri state judge herself—said, “my generation had to fit in. And I loved finally that she was able to stand out.” Judge Laughrey added: “As a woman, she was not only strong professionally, but she was strong socially. [S]he had those instincts, those social instincts, those political instincts, that made it possible for her to be very open-minded, very charming, and made legitimate the argument that women had to have a seat at the table.”
The Senate confirmed Ginsburg on June 18, 1980, giving her a seat on the bench, and she left behind her career as an advocate. Later, Justice Scalia, her friend and colleague, lauded her as “the leading (and very successful) litigator on behalf of women’s rights—the Thurgood Marshall of that cause, so to speak.” Justice Ginsburg went on to serve 27 years on the Supreme Court, continuing to vindicate constitutional rights, before her death on September 18, 2020. Duren still stands as a worthy capstone to her career as a superlative Supreme Court advocate.
United States v. Hayes, 555 U.S. 415 (2009): 274 citations
Yates v. United States, 574 U.S. 528 (2015): 468 citations
McCoy v. Louisiana, 138 S. Ct. 1500 (2018): 510 citations
United States v. O’Hagan, 521 U.S. 642 (1997): 528 citations
Ratzlaf v. United States, 510 U.S. 135 (1994): 992 citations
Bullcoming v. New Mexico, 564 U.S. 647 (2011): 1,570 citations
Skilling v. United States, 561 U.S. 358 (2010): 1,718 citations
Florida v. J.L., 529 U.S. 266 (2000): 2,514 citations
Kimbrough v. United States, 552 U.S. 85 (2007): 4,082 citations
Ring v. Arizona, 536 U.S. 584 (2002): 5,311 citations
United States v. Booker, 543 U.S. 220 (2005): 33,316 citations
