A Judge who Found her Voice; and Used it

A Judge who Found her Voice; and Used it

Ruth Bader Ginsberg was a remarkable person on multiple counts. Judged by any standard, her character, conduct and conviction were extraordinary and unorthodox, eliciting appreciation and adoration, sometimes grudgingly, at times reluctantly, but never insincerely.

Born on the Ides of March, 1933 in Brooklyn, New York, she was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980 at the age of 47. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat on August 10, 1993 and continued till her death on September 18, 2020.

She was the second woman judge to serve on the US Supreme Court and was synonymous with the struggle and advocacy of women’s equal rights. She was outspoken to a fault, her voice and views resonating far and wide in a manner unparalleled in American judicial history. She is known more for her famous dissents; and her words – courageous, convincing, often caustic but never casual – have left behind a legacy that will last well beyond the contemporary context.

On the Court, Ginsburg became known for her active interventions and avid participation at the time of oral arguments. She also became famous for wearing jabots, or collars, with her judicial robes. She used them to convey a message, a symbolic one. Curiously, she wore both a majority-opinion collar and a dissent one.

She engendered a culture, a cult that was followed passionately and loyally. She was fiercely independent and intrepid. In the US Supreme Court’s tradition, the dissenting judge would record, ‘I respectfully dissent’; Ginsberg would record pointedly, ‘I dissent’, signifying the dissents underlying equality with the majority view. She treated the term ‘respectfully’ as avoidably disingenuous, a nicety and embellishment eminently insincere.

Ploughing an Independent Furrow

Early in her tenure on the Court, Ginsburg writing the majority opinion in United States v. Virginia (1996) observed, “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description,” She held that the men-only admission policy of a state-run university, the Virginia Military Institute (VMI), violated the equal protection clause. Rejecting VMI’s contention that its program of military-focused education was unsuitable for women, Ginsburg noted that the program was in fact unsuitable for the vast majority of Virginia college students regardless of gender. This was a judgment that foretold the tenor and spirit of the slew of outstanding pronouncements that were to follow in a large number of cases that would create judicial history.

Ginsburg, however, attracted greater attention for several strongly worded dissenting opinions and publicly read some of her dissents from the bench to emphasise the purport of dissent. In Gonzales v. Carhart (2007), which upheld the federal Partial-Birth Abortion Ban Act on a 5–4 vote, Ginsburg calling the judgment “alarming,” argued that it “cannot be understood as anything other than an effort to chip away at a right [the right of women to choose to have an abortion] declared again and again by this Court.” Same year, in Ledbetter v. Goodyear Tire, another 5–4 decision, Ginsburg criticised the majority’s holding that a woman could not bring a federal civil suit against her employer for having paid her less than it had paid men. Ginsburg argued that the majority’s reasoning was inconsistent with the will of the US Congress —a view that was somewhat vindicated when Congress passed the Lilly Ledbetter Fair Pay Act of 2009, the first bill that Democratic U.S. President Barack Obama signed into law.

Dissents Rationalise Perspectives

Her numerous landmark dissents, representing the liberal perspective on many prominent and politically-charged matters, won her admirers both passionate and reluctant. But more importantly, they established her intellectual perspicacity and clear-sightedness. Her authored dissents ensured that legal debates on a variety of issues remained open on an unaddressed moral dimension and that the matter was far from concluded. And while the majority may have settled the law for the time being, her opinions allowed its questioning to remain possible, palpable and prominent.

In Shelby County v. Holder (2013), the Court’s conservative majority struck down as unconstitutional Section 4 of the Voting Rights Act (VRA) of 1965, which had required certain states and local jurisdictions to obtain prior approval – “pre-clearance” from the federal Justice Department of any proposed changes to voting laws or procedures. Ginsburg, in dissent, criticised the “hubris” of the majority’s “demolition of the VRA” and declared that “throwing out pre-clearance 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.”

If her conviction was unflinching, her articulation of it was unequivocal, sharp and even reprimanding. In Burwell v. Hobby Lobby Stores, Inc. (2014), Ginsburg wrote that the majority opinion “falters at each step of its analysis” and expressed concern that the Court had “ventured into a minefield” by holding “that commercial enterprises…can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Brilliant and Multi-Dimensional

That she was a brilliant judge was established beyond doubt but the brightness of her intellect and comprehension was prominent from the days of her upbringing and education. She tied for the first place for her law degree from Columbia Law School and was also the first woman to be on the editorial board of the law magazine when she attended Harvard Law School. She did her clerkship with Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959 to 1961.  She was a Professor of Law at Rutgers University School of Law from 1963 to 1972 and Columbia Law School from 1972 to 1980, and a fellow at the Centre for Advanced Study in the Behavioural Sciences in Stanford, California from 1977 to 1978.

In 1971, she co-founded the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973 to 1980, and on the National Board of Directors from 1974 to 1980. She served on the Board and Executive Committee of the American Bar Foundation from 1979 to 1989, on the Board of Editors of the American Bar Association Journal from 1972 to 1978, and on the Council of the American Law Institute from 1978 to 1993.

A Feminist Folk Hero

Her strong beliefs and unshakable conviction about equality of sexes and getting women their rightful place in harnessing opportunities of life coupled with her fearless articulation made her a progressive feminist folk hero, especially with her increasing outspokenness during the Obama administration. Inspired by some of her dissents, a second-year law student at New York University created a Tumblr blog entitled “Notorious R.B.G.” – a play on “Notorious B.I.G.,” the stage name of the American rapper Christopher Wallace – that became a popular nickname for Ginsburg among her admirers.

Part of this conviction arose from her own experiences of discrimination and inequity meted out to her early in life. What affected her the most was the refusal of a Supreme Court Justice to accept her as a clerk because she was a woman despite having the most outstanding credentials. Her frequent encounters with the societal sense of fairness and equity, invariably biased and loaded against women, filled her with a steely resolve to face, oppose and transform it. This resolve and determination continued till the last, in fact, becoming stronger and increasingly vociferous with the passage of time.

Late in her term in the Supreme Court, some liberals, citing Ginsburg’s advanced age and concerns about her health (she was twice a cancer survivor) and apparent frailty, argued that she should retire in order to allow Obama to nominate a liberal replacement. Others, however, pointed to her vigorous exercise routine and the fact that she had never missed an oral argument to urge that she should remain on the Court for as long as possible. For her own part, Ginsburg expressed her intention to continue for as long as she was able to perform her job “full steam.” On the day after her husband Martin Ginsburg died in 2010, she went to work at the Court as usual because, she said, ‘it was what he would have wanted.’

She never shied away from carrying her convictions on her sleeve, at times to the detriment of her public image. In an interview in 2016, Ginsburg expressed dismay at the possibility that Republican candidate Donald Trump would be elected president – a statement that was widely criticised as not in keeping with the Court’s tradition of staying out of politics (Ginsburg later said that she regretted the remark). Trump’s electoral victory renewed criticism of Ginsburg for not having retired while Obama was president. She, however, refused to oblige and carried on as its oldest justice, publicly mindful of John Paul Stevens’s service until the age of 90.

Her life was marked by a clarity of purpose unequalled in intensity and richness. She did not learn the art and craft of conceit, nor practiced it, nor even entertained it. The transparency and integrity of her convictions were infectious, endearingly and perhaps her greatest strength and her most enduring legacy.