ruth bader ginsburg, rest in power


These highlights of Ginsburg's decisions and dissents on the SCOTUS are a joy to read. I used two sources, and decided to keep the overlap. Many highlight the reason she was affectionately known as the Notorious RBG.

United States v. Virginia, 1996

In United States v. Virginia, Ginsburg wrote the majority opinion that would serve as a milestone moment for women’s rights and university admission policies. The case challenged a policy by the Virginia Military Institute that barred women from being admitted to the institution. Although the state of Virginia said it would create a separate educational program for women for the military institute, Ginsburg questioned its merits, writing that “Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth’s obligation to afford them genuinely equal protection.”

“Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities,” Ginsburg wrote.

Olmstead v. L.C., 1999

The Supreme Court’s ruling in Olmstead v. L.C. proved a victory for the rights of people with disabilities. In the case, two women with mental disabilities were ordered to remain in a psychiatric facility even though some medical professionals believed they could live healthy lives in a “community-based program.” 

Ginsburg wrote:

States are required to place persons with mental disabilities in community settings rather than in institutions when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. 

Ledbetter v. Goodyear Tire & Rubber Co., 2007

Ginsburg famously dissented from the Supreme Court’s decision in the case of Ledbetter v. Goodyear Tire & Rubber Co, which ended up making it more difficult for workers to sue their employers over allegations of wage discrimination. 

The decision was so troubling to Ginsburg, she chose to read her dissent from the bench, which The Washington Post reported at the time was “a usually rare practice that she has now employed twice in the past six weeks to criticize the majority for opinions that she said undermine women's rights.”

"In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," Ginsburg said. 

Obergefell v. Hodges, 2015

The outcome of Obergefell v. Hodges was a major moment for same-sex couples and the rights of LGBTQ Americans. In the case, a number of same-sex couples sued their respective states over bans against same-sex marriages and not recognizing their legal marriages. Ginsburg’s vote helped overturn the marriage bans; legalizing same-sex marriage in every U.S. state. 

“We have changed our idea about marriage,” Ginsburg said during oral arguments. “Marriage today is not what it was under the common law tradition, under the civil law tradition.” 

Whole Woman’s Health v. Hellerstedt, 2016

In the case of Whole Woman’s Health v. Hellerstedt, the Supreme Court’s decision helped strike down the contentious H.B.2 law in Texas that imposed a number of regulations on abortion clinics, seemingly designed to deter women from obtaining the procedure, among other critiques. Ginsburg said at the time that “it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’”

She added: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”

* * * * 

Shelby County

In a 2013 decision out of the court, Chief Justice John Roberts led a majority invalidating a key provision in the Voting Rights Act that required certain jurisdictions with a history of discrimination to undergo federal oversight before enacting any changes in voting procedure.

Ginsburg penned a fiery dissent in the case, pointing out that Congress passed the latest installment of the Voting Rights Act with "overwhelming bipartisan support," saying the representatives legitimately exercised their constitutional powers in doing so.

"The sad irony of today's decision lies in (the court's) utter failure to grasp why the (law) has proven effective," Ginsburg wrote.

It is the dissent in the Shelby case that grew Ginsburg's following in pop culture in recent years -- spurring the "Notorious RBG" moniker that morphed into a celebration of the justice's legal career.

She wrote that "[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."

Ledbetter v. Goodyear Tire & Rubber Co.

Some of Ginsburg's most blistering dissents came from cases involving gender discrimination and civil rights -- an issue she pioneered throughout her legal career.

In one such case, Lilly Ledbetter sued her employer, Goodyear Tire & Rubber Company, in 1999 for gender discrimination after discovering that over the course of her 19-year career at the company, she had received lower compensation than her male counterparts. She won the case in federal court in 2003 and was awarded $3.8 million in back pay and damages.

The tire giant appealed and the case eventually made its way to the Supreme Court. In 2007, the Supreme Court upheld a reversal of the federal court decision, ruling that because Ledbetter's claim was made after a 180-day charging period, she could not sue her employer under Title VII of the Civil Rights Act of 1964.

Railing against the all male, 5-4, majority, Ginsburg delivered a scathing dissent from the bench, a rare act by justices intended to demonstrate the strength of their disagreement. She accused the eight male justices of being indifferent to the gender pay gap.

"The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination," she said, calling upon Congress to act where the court had not.

In 2018, Ledbetter recalled the role Ginsburg played in her landmark case in 2006, saying the justice's dissent from the majority gives her chills to this day.

"I get chills and goosebumps today just thinking about it ... knowing how fierce she was," Ledbetter said.

Hobby Lobby

In 2014, the Supreme Court ruled that certain for-profit companies cannot be required by the government to pay for specific types of contraceptives, such as methods of birth control and emergency contraception, for their employees.

In her dissent, Ginsburg wrote the court had "ventured into a minefield," adding it would disadvantage those employees "who do not share their employer's religious beliefs."

"Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults," the liberal justice wrote.

Ginsburg also noted the cost barrier that many women face in attempting to gain access to different kinds of birth control.

"It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage."

Obamacare's contraceptive mandate

In one of her more recent dissents, Ginsburg lambasted the court for "(leaving) women workers to fend for themselves," in a case where the justices struck down the Affordable Care Act's contraceptive mandate.

In July 2020, the court cleared the way for the Trump administration to expand exemptions for employers who have religious or moral objections to complying with the Affordable Care Act's contraceptive mandate.

"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," Ginsburg wrote in dissent.

"This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer's insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets," she said and noted that the government had acknowledged that the rules would cause thousands of women -- "between 70,500 and 126,400 women of childbearing age," she wrote -- to lose coverage.

When the case's oral arguments were being heard, Ginsburg participated from a hospital bed because of a gall bladder condition. Ginsburg also announced weeks after her dissent in the case that a scan the February before revealed lesions on her liver and she had begun bi-weekly chemotherapy.

Bush v. Gore

In the election of 2000, Florida was the key to presidential victory on both sides of the aisle. The voting process in the state was a mess -- with poorly designed ballots and counting irregularities abound. Both George W. Bush and Al Gore both declared victory in the state before election night was over, kicking off one of the most drawn-out election results in the nation's history.

The election quickly went from a decision steered by vote counts to one steered by the courts.

The bitter court battle first escalated up to Florida's Supreme Court, where a manual recount of ballots was issued. The order was appealed up to the US Supreme Court, where it was reversed and Florida's 25 electoral votes, along with the presidency, was handed to Bush.

Though Ginsburg was not on the winning side, she did not go gentle into that good night.

''I might join the chief justice were it my commission to interpret Florida law,'' Ginsburg wrote. ''The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree.''

''Were the other members of this court as mindful as they generally are of our system of dual sovereignty,'' Justice Ginsburg concluded, ''they would affirm the judgment of the Florida Supreme Court.''

But while colleagues wrote they dissented "respectfully," as Ginsburg typically does, she said only: "I dissent."

* * * *

The deep mourning and existential fear that Ginsburg's death has triggered speak how even the thinnest veneer of democracy is hanging by the flimsiest of threads. 

She was a powerhouse, a model of truth-telling and integrity, a brilliant, forceful, and fearless mind. But the death of one elderly woman, no matter how beloved, should not strike such profound fear in the hearts of so many millions. 

And I've already seen an onslaught of posts blaming that fear on supporters of Bernie Sanders.


Amy said...

Great post, Laura. I am still gathering my own thoughts, but may I link to your blog when I publish something on my own blog?

laura k said...

Oh my, thank you! It seems a trivial copy/paste to me. The topic is overwhelming, so I took the easy route. And of course, you can always link here.

My niece who is a lawyer posted a pic of RBG giving a talk at her law school, New England Law. RBG said she always had a fondness for the school, as it used to be the only law school for women in Massachusetts. Most students were from working-class and immigrant backgrounds, and for a long time, women practicing law in Mass were Portia School graduates (the school's former name).

Amy said...

Yes, NELS was once Portia and all women---quite a special history. I believe the name was chosen for Portia from The Merchant of Venice. It went co-ed in 1938. Sadly, it changed its name to NELS when it becamse accredited by the ABA in 1969. That's what I found out here

laura k said...

Yes, I was reading that history on the school's website.

Tangent: My great aunt Bess Farberman -- one of my maternal grandmother's sisters -- was one of the first women to get a law degree in New York City.

There were two other women in her class in St John's University, and those three were the first women to practice law in the city -- or so the family story goes. I've never confirmed it independently. (A challenge for Allan!)

Aunt Bess practiced law until she was quite old. The firm sent a car to pick her up every day. Also, she never married. No one ever discussed why. Bessie was a lawyer, and that was that.

Amy said...

Wow, that was really early if she was your grandparent' generation. Brava for her! And back then---it would have been unacceptable for a mother to have a profession, so it's not surprising that she never married. Although there might have been any number of reasons!

Do you know what kind of law she practiced? I took a quick look and found her on several census records and NYC directories. I bet I could find more! But I don't want to spoil Allan's fun.... :)

allan said...

Amy, don't let me stop you!

I found a St. John's alumni magazine that mentions a few early female lawyers, but not Bess. Do you know what class she would have been in?

Kate Stoneman (1886): First female lawyer in New York
Rosalie Loew Whitney (1895): First Jewish American female lawyer in New York
Helen Z.M. Rodgers (1899): First female lawyer to try a case before the New York State Court of Appeals
Clarice Baright (1905): First female (who was Jewish) admitted to the American Bar Association (1919)
Ruth Whitehead Whaley (1924): First African American female lawyer in New York

Amy said...

According to some website I saw this morning, she was admitted to the bar in 1930. I couldn't find an obituary though. But I haven't really done a full search.

laura k said...

1930 seems kind of late.

The story we always heard was that Bess was working as a legal secretary and her (male, obviously) boss encouraged her to go to law school. My family was so ho-hum about this -- except for me, of course.

She practiced family law, estate planning, and some real estate, I believe.

allan said...

The 1930 Census lists her (as of April 9) as living at home, age 22, occupation "lawyer, office".

She is not in any of these St. John's College class photos (though one is not complete):
Class of 1928: 14 women. No Farberman.
Class of 1929: 6 women visible (damaged, partial photo). No Farberman.
Class of 1930 (7-9 session): 9 women. No Farberman.
Class of 1930 (10:30-12:30 session): 7 women. No Farberman.
Class of 1930 (4:15-6:15 session): 3 women. No Farberman.
Class of 1930 (8-10 session): 7 women. No Farberman.

She was born August 1907. If she was in the Class of 1927, she would have graduated at 19. Is that possible? She *might* be in the Class of 1929, but in the damaged portion. As you say, 1931 may be too late. No idea of years other than 1930 had different sessions.

It does look like she went to St. John's, though. I also found this, from The Brooklyn Daily Eagle (April 8, 1933) (some misspellings possible):
"The Holy Name Society of St. Jerome's R.C. Church will receive holy communion tomorrow morning at the 8 o'clock mass in the church, Nostrand and Newkirk Aves. The society will hold a meeting in the evening. The speaker will be Michael F. Wabih, past State advocate of the Knights of Columbus, who will give an address on "The Legal Aspects of the Trial of Christ." The Women's Chapter of the Justice Brandeis Society held a meeting this afternoon in the Women's Clubroom of St. John's College School of Law, Bfl Schermerhorn St. Bridge preceded the meeting. The officers of the society are the Miss Bess Farberman, president; Rose Lndor, vice president; Adrle I. Springer, secretary ..."

allan said...

Maybe she is in one of these?

St. John's University - School of Law, class of 1928 - 25th Anniversary Dinner (May 4, 1953)
St. John's University - School of Law, class of 1928 - 26th Anniversary Dinner (May 4, 1954)

laura k said...

It's sweet to see her name in that paragraph above. :)

The links above "Class of 1929" etc., those are for the law school?

It is possible she graduated at age 19. All the sisters seem to have graduated high school very early. I don't know if that was common practice or not. Also in those days, one did not need an undergraduate degree to study law. You could go from high school to law school. So it's not unreasonable to think she graduated in 1927.