December 14, 2020 HUMAN RIGHTS

The Quest for Equal Justice Under Law Must Be Notorious

by Angela J. Scott
“I see my advocacy as part of an effort to make the equality principle everything the founders would have wanted it to be if they weren’t held back by the society in which they lived and particularly the shame of slavery.”

Ruth Bader Ginsburg

This issue of Human Rights magazine is dedicated to the legacy of Justice Ruth Bader Ginsburg, past member of the ABA Section of Civil Rights and Social Justice Council (formerly the Section of Individual Rights and Responsibilities), civil rights attorney, professor, and, most notably, associate justice of the Supreme Court. Justice Ginsburg, fondly referred to as “Notorious RBG,” was, in fact, notorious in her quest for equal justice under the law, and so must we be.

Equality is one of the intended principles upon which our democracy was founded, and, yet today, we are still working to realize that ideal. The quest for freedom and equality is simultaneously our greatest aspiration, longstanding vulnerability, and, some might even say, our most significant failure. The Declaration of Independence avowed that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” and in 2020, we are still striving to make the intent behind these words ring true for everyone in our nation, not just a privileged few.

Both the legacy of Justice Ginsburg and the evolution of civil rights law in this country prove that injustice isn’t overcome without the intervention, strategic planning, hard work, and persistence of those who are called to fight against it. Ruth Bader Ginsburg answered that call. This issue examines some of the methods she used as a civil rights attorney, a Council member, and a justice. Whether she was arguing a case before the Supreme Court, as she did in Califano v. Goldfarb, 430 U.S. 199 (1977), or dissenting to one as a justice, as she did in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), her response to inequality represented her consistent calling to ameliorate injustice.

Justice Ruth Bader GInsburg

Justice Ruth Bader GInsburg

Amid the COVID-19 global pandemic, the inequities that persist in this country are highlighted and on full display in a multitude of forms. As we watch African Americans and other people of color succumb to the COVID-19 virus at far greater rates than white America, even though they are a minority of the population, there is no denying the unacceptable disparities in health care, regardless of why some say they exist or how they are justified. These disparities represent one of many ways inequality manifests in this country.

The same is true of our criminal justice system. Sentencing disparities, police brutality, and the killing of unarmed Black people who are too often not afforded the presumption of innocence until proven guilty, like others, are all examples of egregious inequality. This year, our circumstances have made it possible for the masses to witness this unequal system, especially as it pertains to Black people. The killings of Ahmaud Arbery, Breonna Taylor, and George Floyd opened the eyes of many who previously believed that all people were afforded equal justice under the law, regardless of their race.

The fact is, modern-day America, like the country at its founding, is in a constant battle for civil rights, liberty, and equal justice. While many Americans recently were awakened to the fact that our systemic structures enable longstanding, although evolved, injustices to prevail, awareness is not enough. It is time to acknowledge it, intervene, strategically plan to eliminate it, and work nonstop until equality is achieved. The difficult conversations, starting with the acknowledgment of the atrocities—both past and present—must take place in order for reconciliation and resolution to occur and have a lasting effect. Failure to acknowledge and actively fight to eliminate injustice—including implicit bias, discrimination, and other forms of racism—almost guarantees its vitality. It is impossible to achieve meaningful change if these issues are met with indifference or denial or the naïve belief that all is well.

Like the racial inequalities in health care and the criminal justice system, the securing and protecting of voting rights are also issues with which African Americans are well acquainted, as voter suppression is a practice they have lived with in various forms since obtaining the right to vote. The Voting Rights Act of 1965 (VRA) was passed, recognizing the need to ameliorate discrimination in voting. Under the preclearance requirement established by Section 5 of the VRA, covered jurisdictions were required to submit proposed changes in voting laws or procedures to the Department of Justice (DOJ) for approval. 79 Stat. 439, codified at 42 U.S.C. §1973c(a). The DOJ would approve the changes unless it found that the change had “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid. This section made a tremendous difference in reducing racial discrimination in voting. Although recognizing that voting discrimination still existed, the Supreme Court decided that the burden that Section 5 of the VRA imposed on the states was no longer necessary based on current needs and eliminated it in Shelby County v. Holder, 570 U.S. 529 (2013).

When we are not collectively outraged at all forms of inequality, it puts everyone at risk to eventually experience them. When we do not actively fight to maintain certain rights, those rights are not guaranteed to remain. In her famous Shelby County dissent, Justice Ginsburg put it bluntly, as she often did when she wrote, “[t]hrowing 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.”

And while the preclearance requirement was put into effect to eliminate racial discrimination, it likely protected the rights of many others as well, regardless of race. The pursuit of justice ultimately benefits all. And, as time will likely tell, the elimination of this section cleared a path for others, not just African Americans, to be disenfranchised in this election. Indeed, as the late Rev. Dr. Martin Luther King Jr. declared, “injustice anywhere is a threat to justice everywhere.”

At the risk of regressing, we cannot take for granted the rights for which we have fought so hard. We must continue to fight for equality in all aspects, and, when achieved, we must be vigilant and work to maintain it, even when unpopular and seemingly unnecessary. Even when it seems like justice is out of reach and all else fails, we must be notorious in our dissent to injustice.

May we honor the legacy of Justice Ruth Bader Ginsburg and willingly receive the torch that she carried for so long. May we not tire until all people, regardless of race, ethnicity, national origin, disability, religion, age, sex, or LGBTQ status, are afforded equity, fairness, and access to civil and human rights. May we always strive to achieve and maintain equal justice under the law, and may we do so notoriously, holding onto our umbrellas in the rain.

Angela J. Scott

J.D., LL.M.

Angela J. Scott is an attorney-advisor in the OGC Civil Rights Division of the U.S. Department of Health and Human Services. She is a former member of the ABA Disability Rights Commission and the current chair of the ABA Section of Civil Rights and Social Justice. This article is written in her personal capacity, and the views expressed herein are her own and not those of her employer or any component of the U.S. government.