18 October, 2020 — The Precarious State of Justice Ruth Bader Ginsburg’s Progressive Legacy – Part 3

Describing her strategy in choosing and arguing six gender discrimination and equal rights cases in front of the all-male US Supreme Court, five of which cases she won, Ruth Bader Ginsburg revealed, “We frankly copied what the NAACP Inc. Fund [and Thurgood Marshall, who later became the first African-American Supreme Court Justice,] had done, that is, not to take the Court by storm, but to lead them there in slow degrees.”[1] Ruth Bader Ginsburg saw herself “as kind of a kindergarten teacher in those days, because the judges didn’t think sex discrimination existed.”[2] Through her meticulous and methodical litigation in the 1970s, she changed the legal landscape for women in the US. And so, when President Jimmy Carter was looking to revolutionize and diversify the judiciary, which was at the time mostly white and male, he appointed Ruth Bader Ginsburg as a federal judge in 1980, along with 39 other women during his presidency.

Within 13 years, Ruth Bader Ginsburg became the second woman to be appointed to the US Supreme Court upon being nominated by President Bill Clinton in 1993. Once on the bench, the Justice began as a moderate centrist, often acting to build consensus between her fellow Justices. But as the Supreme Court became increasingly pro-corporation (Citizens United v. FEC; Burwell v. Hobby Lobby), anti-minority (Trump v. Hawaii), anti-reproductive rights (National Institute of Family and Life Advocates v. Becerra), and pro-disenfranchisement (Husted v. A Philip Randolph Institute; Abbott v. Perez), Justice Ginsburg shifted more toward the side of progress in social justice and equal rights. In many instances, Justices who lean toward less inclusive and progressive judgments have embraced originalism, which focuses on the meaning of the US Constitution’s words at the time it was adopted in 1787. In explaining her jurisprudence of believing in a living constitution, i.e., that it is a document that adapts to the times, taking on different meanings depending on when it is interpreted, Justice Ginsburg explained:

“I take my cue from the preamble to the Constitution, which reads: We the People of the United States in order to form a more perfect union. Who were We the People in 1787? You [speaking to a female reporter] would not be among We the People. African-Americans would not be among the people… even white men who owned no property…. The notion of We the People has become ever larger. So the people who were once left out, like women, like African-Americans, like Native Americans, are now part of that We the People.”[3]

The passing of Justice Ginsburg leaves a vacancy that will most likely be filled by an originalist, meaning that the Supreme Court bench will become heavily stacked (6-3) against social and environmental progress. The rights and protections for which women, minorities, environmental activists, and human rights advocates struggled for decades are in danger of being rescinded. And the repercussions of this regression will be felt globally, not just in the United States. If corporations are soon allowed to set exorbitant prices on pharmaceuticals or have near-monopolies, the equitable access to resources will be affected in many countries. If environmental regulations are allowed to be dismantled, the resulting increase in pollution and waste generation will aggravate global warming, driving communities around the world into deeper poverty and ill-health and causing the destruction of a larger number of already endangered ecosystems. If religious parochialism is allowed to become more entrenched in American society, then US foreign policy may become even more intrusive.

Ruth Bader Ginsburg was not just an exceptional American; she was an exceptional human being, who helped temper the mindset of a very powerful country. During her first oral argument in front of the Supreme Court in 1973, she quoted “Sarah Grimké, a noted abolitionist and advocate of equal rights for men and women… [who] said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.””[4] While we mourn the death of Justice Ginsburg because her inspirational leadership will be sorely missed, it is difficult not to be concerned about our necks being stomped on once more.

[1] A conversation with Ruth Bader Ginsburg at HLS. Harvard Law School. February 7, 2013. Available on youtube at https://youtu.be/umvkXhtbbpk

[2] RBG. Directed by Betsy West and Julie Cohen. CNN Films. Documentary released on January 21, 2018.

[3] 60 minutes Overview interview of Justice Ginsburg by Lesley Stahl. CBS News. 2008. Available at https://www.cbsnews.com/news/ruth-bader-ginsburg-60-minutes-interview-2020-09-19/

[4] Ruth Bader Ginsburg. Oral argument in Frontiero v. Richardson. US Supreme Court. January 17, 1973.

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