December 14, 2020 HUMAN RIGHTS

Rest in Power, Notorious RBG

by Daniel Cotter

Justice Ruth Bader Ginsburg knew her end was near. Early in the evening of Rosh Hashanah, we received word that the Notorious RBG, who seemed invincible to all of us, fighting again and again with cancer and medical issues, had passed. Ginsburg’s granddaughter, Clara Spera, a lawyer, asked Ginsburg if she had any message to the public. Spera wrote down that dying wish, “My most fervent wish is that I will not be replaced until a new president is installed.” While President Trump has disparaged the wish as being made up and not sounding like something Ginsburg would say, that is the Ginsburg we lost. This article pays tribute to the irreplaceable Ruth Bader Ginsburg.

Notorious R.B.G., a moniker coined by NYU law student Shana Knizhnik in 2013 after Ginsburg’s powerful dissent in Shelby County v. Holder.

Notorious R.B.G., a moniker coined by NYU law student Shana Knizhnik in 2013 after Ginsburg’s powerful dissent in Shelby County v. Holder.

CREATIVE HAT ON FREEPIK AND ANNALISE BATISTA ON PIXABAY

A Personal Connection

In June 2014, I was sworn in as the president of the Chicago Bar Association. Then Executive Director Terry Murphy earlier in the year asked me if I would be interested in a program, “A Conversation with Ruth Bader Ginsburg.” My opening remarks conveyed my interest:

My response was a very quick, overwhelming yes. To meet and hear from Justice Ginsburg is a dream come true. She is an amazing person and justice and a pioneer in gender equality whom I admire greatly. A few years ago, I purchased this t-shirt and believe it sums up the audience’s feelings toward our guest today.

The t-shirt was one I had received as a gift. As a 6’3,” 300-pound powerlifter, it was a very large shirt, XXL or XXXL. Never worn, it had the iconic image of Ginsburg with the moniker, Notorious R.B.G., which New York University law student Shana Knizhnik coined in 2013 after Ginsburg’s powerful dissent in Shelby County v. Holder (more on that case later). Ginsburg was physically small. After then Seventh Circuit Judge Ann Claire Williams, who had arranged for Ginsburg to visit the Chicago Bar and have Williams interview her, had completed the interview, I presented the referenced gigantic shirt to Ginsburg with other mementos of her visit. She looked at the shirt, not having any idea what she would do with this “tent,” and gave a small chuckle. Ginsburg was quiet and not overly expressive, but she had a wonderful sense of humor. At that conversation, she also confirmed her position when asked about how many female justices should sit on the Court: Nine, because for almost the first 200 years, all men sat on the highest court.

Ginsburg came back to the Chicago Bar a year later, during Patricia Holmes’s presidency, and I was privileged to visit with Ginsburg again. She spoke about her experiences and talked about her work.

I also was honored to be able to attend the Seneca Women Tribute to Sandra Day O’Connor and witness the first four female Supreme Court justices together, including Ginsburg, on one of the last, if not the last, gatherings of these four amazing women. At the reception, we were able to visit with them.

In April 2019, my book, The Chief Justices, was published. After sending each of the nine sitting justices a copy with a letter and note inside, the first to respond was Ginsburg, writing: “Glad to have your valuable work, The Chief Justices, to share with all in chambers.” Justices Kagan and Sotomayor came next, and Chief Justice Roberts and Thomas sent notes. Like in everything, first in grace, first in cordiality but strength, was Ginsburg.

The Incredible Work of Ginsburg Before the Bench

If Ginsburg had never been nominated to fill the vacancy on the Court created by the retirement of Justice Byron White, she would have still been one of the greatest advocates of her time. Her fight for gender equality and fair treatment changed the legal landscape.

On August 10, 1993, Ruth Bader Ginsburg became the second female justice of the Supreme Court of the United States. She also became the first Jewish female justice. However, long before becoming an associate justice, she was a pioneer in the fight for gender equality.

Education and Early Career

Ginsburg, then Ruth Bader, graduated first in her class from Cornell University in 1954 with a bachelor’s degree in government. She married Martin Ginsburg later that same year, a law student who was drafted into the military. For the next 56 years, until his death, theirs would be a marriage of equals. She and her husband both enrolled in Harvard Law School, where she found herself one of just nine women in a class of more than 500. She was a member of the Harvard Law Review, the first woman to achieve that position at Harvard, and became its editor.

When Martin was hired in New York City in 1958, Ruth transferred to Columbia Law School, where she was also a member of the Columbia Law Review. She became the first woman, and one of very few individuals, to be on two law reviews—especially of such prestige. Ginsburg graduated first in her class from Columbia Law School.

In 1960, she was turned down for a clerkship with Supreme Court Justice Felix Frankfurter because of her gender. While a former dean from Harvard Law School had recommended Ginsburg to the justice, and Frankfurter was impressed with her, he was not ready to hire a woman. (Justice William O. Douglas hired the first female clerk, Lucile Lomen, in 1944. Research suggests the second female clerk was hired in 1972.) She became a clerk for Judge Edmund L. Palmieri, a judge on the U.S. District Court for the Southern District of New York. Stories about the threat to Palmieri if he did not hire Ginsburg have been disputed recently.

Fight for Gender Equality

As noted, Ginsburg faced gender discrimination along the path to becoming a lawyer and in her initial employment. After completing her clerkship, and spending time in Sweden to research a book she was writing on Swedish civil procedure practices, she became a professor at Rutgers University Law School, where she taught from 1963 to 1972, and then at Columbia Law School from 1972 to 1980, where she became the first female tenured professor. (On the Supreme Court, Ginsburg would be the resident expert on civil procedure matters, a void that will be hard to fill.) Ginsburg continued to open doors for future women. While at Rutgers, she became the first faculty advisor to the Women’s Rights Law Reporter, which was the first law journal to focus 100 percent on women’s rights. According to the Reporter website, it is the “oldest legal periodical in the United States focusing exclusively on the field of women’s rights law.” 

In 1972, Ginsburg founded the American Civil Liberties Union’s Women’s Rights Project (WRP). The focus of the Project is:

Through litigation, community outreach, advocacy and public education, WRP empowers poor women, women of color and immigrant women who have been subject to gender bias and who face pervasive barriers to equality.

She became the ACLU’s general counsel in 1973. She was the chief litigator for the Women’s Rights Project’s cases. In her years in that role, Ginsburg argued six landmark cases before the Supreme Court on gender equality:

  • Frontiero v. Richardson (1972)
  • Kahn v. Shevin (1973)
  • Weinberger v. Wiesenfeld (1974)
  • Edwards v. Healy (1974)
  • Califano v. Goldfarb (1977)
  • Duren v. Missouri (1978)

Ginsburg’s thinking and approach to gender equality were exceptional, relying on her strong belief that the law is gender blind or gender neutral. In Weinberger, she successfully challenged a provision of the Social Security Act that favored widows over widowers. Ginsburg argued that gender should not be considered when providing surviving spouse benefits to widowers. In Califano, Ginsburg argued that husbands should be entitled to surviving spousal benefits during retirement regardless of the widow’s previous income. The Court agreed, finding:

We conclude, therefore, that the differential treatment of nondependent widows and widowers results not, as appellant asserts, from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. This presents precisely the situation faced in Frontiero and Wiesenfeld. . . . We held in Frontiero, and again in Wiesenfeld, and therefore hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits.

In Reed v. Reed (1971), a case that Ginsburg briefed for the plaintiffs, the Supreme Court ruled for the first time that the Equal Protection Clause of the Fourteenth Amendment prohibited different treatment based on gender. In two subsequent cases before the Supreme Court that Ginsburg argued, the justices held that the intermediate scrutiny standard applied to review of legal classifications based on gender. Her work and advocacy in the arena of gender equality led to the end of gender discrimination in many areas. And when same-sex marriage became recognized, her work in gender equality and spousal benefits would help.

Her last case argued before the Supreme Court was Duren v. Missouri, in which she contended that optional jury duty for women was unconstitutional because it valued female jury service less than male jury service. The Supreme Court found that the systemic exclusion of women from juries resulted in jury pools that were not representative of the community.

Ginsburg’s work in the gender arena has been compared over time to the work of Thurgood Marshall on school desegregation matters, including by President Bill Clinton when he announced her nomination:

It is important to me that Judge Ginsburg came to her views and attitudes by doing, not merely by reading and studying. Despite her enormous ability and academic achievements, she could not get a job with a law firm in the early 1960s because she was a woman and the mother of a small child. Having experienced discrimination, she devoted the next 20 years of her career to fighting it and making this country a better place for our wives, our mothers, our sisters, and our daughters. She herself argued and won many of the women’s rights cases before the Supreme Court in the 1970s. Many admirers of her work say that she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans. I can think of no greater compliment to bestow on an American lawyer.

Judicial Career

On April 14, 1980, President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit. In his single term, Carter appointed a total of 262 Article III judges, a record for a single term, but no Supreme Court justice. By comparison, as of September 25, 2020, President Trump has appointed 218 Article III judges. Ginsburg likely was one of the two most important nominations that Carter made (the other was Stephen Breyer, Carter’s last appellate court confirmation). She served on that bench for 13 years, until she was appointed to the top court. While on the D.C. Circuit, she began her long, warm friendship with Antonin Scalia. The two shared a love for opera and often traveled together, including a safari. Scalia once said of Ginsburg, “Call us the odd couple. She likes opera, and she’s a very nice person. What’s not to like? Except her views on the law.” And Ginsburg stated, “I disagreed with most of what he said, but I loved the way he said it.” Their friendship showed that justices could be friends even while disagreeing with the other’s views, and other instances throughout the Court’s history confirm this generally.

Supreme Court

President Bill Clinton nominated Ginsburg to the position of associate justice on the Supreme Court on June 14, 1993. She was confirmed, 96–3, and took her judicial oath on August 10, 1993. At the time of her death, she was the 24th longest serving justice in the Court’s history. On the Supreme Court, Ginsburg continued to be an advocate for equality and women’s rights. Ginsburg generally voted based on her political views and beliefs during her Court tenure. Justia.com recently compiled the long list of all decisions that Ginsburg authored, available here. In 27 years, Ginsburg wrote a large number of majority opinions, but also almost as many concurring and dissenting opinions.

In Ledbetter v. Goodyear Tire & Rubber Co. (2007), Ginsburg read her dissent from the bench, a rare practice. She strongly argued that in gender pay discrimination, the claim should be filed within 180 days of when the pay differential occurred and that the claimant would not have knowledge or disregarded the nature of such cases, stating, “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.” Ginsburg in her dissent encouraged Congress to amend the law to address the Court’s incorrect holding and to adopt her dissent. Ginsburg noted about reading dissents from the bench that when a dissent is presented orally, it is an indication that, “in the dissenters’ view, the court’s opinion is not just wrong, but importantly and grievously misguided.”

Ginsburg also noted the power of dissenting in big-issue cases on the final majority opinion that is published, noting the “utility of dissenting opinions” and “that there is nothing better than an impressive dissent to improve an opinion for the court. A well-reasoned dissent will lead the author of the majority opinion to refine and clarify her initial circulation.”

In response to Ginsburg’s dissent and publicity around the issue in Ledbetter, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, the first bill President Barack Obama signed into law. Ledbetter said of the loss of Ginsburg that she “changed lives that will always be changed simply because of her and her reputation and her fight for the law and equal justice. I’m just so sad because I lost a dear, dear friend and a champion.”

Ginsburg’s first major decision may have been United States v. Virginia (1996), holding that qualified women could not be denied admission to the Virginia Military Institute (VMI) and the unique educational experience VMI offers. Only her friend, Scalia, dissented. Her decision should have come as no surprise to those who knew about her advocacy before becoming a judge.

During the 2013 term, Ginsburg wrote a fiery dissent in the Shelby County v. Holder decision overturning Congress’s extension of certain parts of the Voting Rights Act of 1965. She opened her dissent by noting, “Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.” She also wrote the famous line, “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.” Recent actions in the battle over voting rights remind us of Ginsburg’s call for continued enforcement of the overturned portions of the act.

In 2014, Ginsburg once again dissented from a major decision of the Court. In Hobby Lobby, Ginsburg issued another blistering dissent, questioning the decision of the majority. She began by asserting that the five male justices had issued a “decision of startling breadth” that allowed corporations to opt out of almost all federal laws that they found to be “incompatible with their sincerely held religious beliefs.”

Ginsburg’s last dissent was in the case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al., which she heard from the hospital where she was being treated and told then Solicitor General Noel Francisco, “You have just tossed entirely to the wind what Congress thought was essential, that is that women be provided these...services with no hassle, no cost to them.” Fiery to the end in her dissents, Ginsburg wrote:

Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. Specifically, in the Women’s Health Amendment to the Patient Protection and Affordable Care Act (ACA), 124 Stat. 119; 155 Cong. Rec. 28841 (2009), Congress undertook to afford gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and wellbeing.

Ginsburg’s Constitution was a living one, voting liberally on most every social issue before the Court. The Rehnquist and Roberts Courts have addressed many such issues, including abortion, affirmative action, gay and same-sex rights, employment discrimination laws, and Second Amendment rights. Some have criticized her record for finding all political outcomes she favored, as the right has been criticized for finding their political results under the cover of originalism. That may be fair, but the battle over what the Constitution aspires to will not be resolved any time soon.

On Saturday, September 26, President Trump nominated Seventh Circuit Judge Amy Coney Barrett to replace Ginsburg. But like the replacement of Justice Thurgood Marshall by Clarence Thomas, the replacement of Justice Ruth Bader Ginsburg by Amy Coney Barrett will keep the number of female justices on the Court at three (not close to the nine RBG proposed), but the judicial approach and jurisprudence that will issue will not reflect the views and protections that Ginsburg advocated for her entire legal career. The Roberts Court, with a solid six conservative voices, likely will ignore Ginsburg’s dissents as well as some majority opinions, with even Roberts’s interest in stare decisis as stated in June Medical not having an impact of a voting bloc if five other conservatives decide otherwise. The jury remains undecided on whether Roberts will assume Ginsburg’s label “Great Dissenter” label in coming years, trying to save the legitimacy of the Court.

Conclusion

Ginsburg was a pioneer at every step of her education and law career. She fought for equality and recognition of individual rights. Ginsburg will forever be one of the most “prominent figures in the arena of human rights and civil liberties.” In death, as in life, Ginsburg was a pioneer and first. Lying in state at the United States Capitol, she became the first woman and the first Jewish person to do so. However, partisanship in death ruled the day, with the Senate GOP refusing to give her that honor, requiring the House to hold the service in the House side. Rest in power, Ruth Bader Ginsburg.

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Daniel Cotter

Attorney and Counsel, Howard & Howard Attorneys PLLC

Daniel Cotter is an attorney and counsel at Howard & Howard Attorneys PLLC, where he practices corporate and transactional and data privacy. In his spare time, he is a student of the Supreme Court and Constitution and writes often about the Court, including his 2019 book, The Chief Justices.