Julie Werner-Simon, adjunct professor and former federal prosecutor, stopped by a Rittenhouse Square dress shop with her mother after the passing of Supreme Court Justice Ruth Bader Ginsburg. The shop, a place Ginsburg patronized, had a window display honoring her. This touching memorial to Ginsburg inspired Professor Werner-Simon to use the digital space she shares with her students to honor the late Justice. Werner-Simon asked her students to find a case in which Ginsburg had a majority, plurality or dissenting opinion that resonated with them and related to the constitutional questions of the class content.
Professor Werner-Simon’s students wrote the following statements.
The first time in my life that I heard about Justice Ruth Bader Ginsburg was during the 2000 presidential election when the U.S. Supreme Court issued a per curiam opinion holding 7-2 that the ballot recounting scheme in Florida was unconstitutional under Article II Section 1 Clause 2 of the U.S. Constitution Bush v. Gore (Oyez, last accessed 9.27.20). Then, by a 5-4 vote, it was declared that time had “run out” to devise a constitutionally permissible recount. The recount was stayed and Bush won the electoral votes giving him the Presidency. I was only five years old at the time and a lot of the legal issues addressed in the case went over my head, but I could not understand why recounting votes to ensure that everyone’s vote had been properly counted was ruled against by the highest court of our nation.
It seemed a basic notion that a crucial part of our foundation as a democratic nation was to ensure that everyone’s voice be heard, yet here I was sitting in front of the T.V. hearing that our highest court decided it was too late to ensure that the President of the U.S. was properly selected. Then the news reporter starts to describe how a few Justices, amongst whom was Justice Ruth Bader Ginsburg, strongly criticized the five-justice majority for involving the Court in state affairs, as this was a direct contradiction of federalism. Justice Ginsburg said in her dissenting opinion: “[t]he 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.” Bush v. Gore (Ginsburg, dissenting). The dissenting opinion concluded as follows: One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Bush v. Gore (Stevens, Ginsburg, and Breyer, dissent).
Now as a law student, I see why this was such a controversial decision by our “impartial” Court. Justice Ginsburg’s dissent demonstrates that she recognized this issue as she feared this would be a turning point for our nation’s history. Today, we see the increased polarization in politics, and it is not a stretch to say that it was inevitable given the Court’s intervention in state matters by engaging in judicial activism rather than following their usual judicial restraint in such highly politicized matters.
Justice Ginsburg’s continued plight in her forceful dissents gave me confidence that not all was lost. She continued to voice her opinions, backed by precedent, and had no qualms in explaining when she thought the majority overlooked a dispositive factor.
In the world we live in today, it is very easy to be shut down by those in the majority who believe their thoughts and opinions are the only correct way of addressing the issues we face in society. However, Justice Ginsburg, since the beginning of her career as an attorney, never let these forces stop her, and she continued all the way until her death to fight for the injustices she saw throughout our nation as a Justice of our Supreme Court. If she can do it, what is to stop the rest of us to fight for what we believe in?
RBG wrote a separate opinion in National Federation of Independent Business v. Sebelius (the 2012 Affordable Care Act “ACA” case). At issue (among other things) was the constitutionality of the ACA mandate in the 2010 Act and the constitutionality of the Medicaid expansion provision. Chief Justice Roberts upheld the mandate as a tax and found the Medicaid expansion provision to be unconstitutional. Justice Ginsburg concurred in part and dissented in part. Justice Ginsburg agreed that the mandate was a valid use of Congress’s power to tax, but stated that the reasoning was too narrow and that Congress’ power to impose a mandate was also to be found in the Commerce Clause. Ginsburg opined that there was a rational basis for Congress to believe the large population of uninsured people would “substantially affect” interstate commerce. Justice Ginsburg also dissented from the portion of the opinion jettisoning the Act’s Medicaid expansion requirement. She explained that since states have no automatic right to federal funds, Congress can decide what federal funds should be given to which states and under what conditions. In her view and for that reason, the federal government could legally withhold Medicaid funds from those states which did not comply with expansion.
I admired RBG; she always stood her ground.
RBG embodied the American dream. She was more than just a trailblazer—her own galaxy was filled with ever-expanding constellations. When told her world was finite, she fought harder to prove we are more than just a grain of sand in a universe of space matter. Expansion and growth were a constant and were paramount to RBG. Whether she set out with the intention to prove everyone wrong is inconsequential, for, that is what occurred nonetheless—she broke barriers for herself and for every underdog along the way.
Throughout her career, RBG championed women’s rights when women were not accepted in the legal field. She was a wife and mother before attending law school but knowing that was not enough for her, RBG became one of only nine women to attend Harvard Law School in 1956.
After transferring to Columbia Law School, she graduated in 1959 at the top of her class. Though qualified, RBG faced rejection from white male judges and white shoe firms in New York. But she refused to let her womanhood work against her. Judge Palmieri of the S.D.N.Y. hired her for a clerkship in 1959. After, RBG taught law at Rutgers Law School in 1963 and fought for equal pay there when she noticed she was paid less than her male counterparts. RBG went on to become the first tenured woman law professor at Columbia Law School.
After arguing several times in front of the Supreme Court of the United States, RBG was appointed to the U.S. Court of Appeals for the District of Columbia in 1980 and later appointed to the Supreme Court of the United States in 1993. Only the second woman to be appointed to the Supreme Court, RBG sat on the bench until her death on September 18, 2020.
A case of ominous prescience today, Bush v. Gore was a major win for Republicans and, in a way, furthered voter suppression. I am drawn to this case more so today than ever as a forewarning to our upcoming presidential election. It was also a case in which RBG famously dissented, not with an “I respectfully dissent,” but with a punchy, “I dissent.”
On the cusp of election in 2000, in a 5-4 decision, the Supreme Court reversed a Florida Supreme Court request for a selective manual recount of Florida’s presidential election ballots. This decision effectively handed the election victory to George W. Bush. On November 7, 2020, the presidential election between Gore and Bush all came down to Florida—the state that reported a mere 600 vote discrepancy between the two candidates. Under Florida law, if there is a margin of error of 0.5%, then a machine recount is required. Bush won by a 0.01% margin of error, therefore a hand recount was mandatory. The recount results showed a Bush win of 347 votes. Bush filed suit in Florida citing the illegality of the recount, and Gore filed suit in Florida claiming the ballot design was faulty and caused voter confusion. The Florida Supreme Court held that the manual recount should continue. Bush then filed suit in federal court and the Supreme Court, in a writ, ruled the count halt. In a 7-2 decision, the Supreme Court overturned the Florida decision, citing equal protection violations. Finally, the Court ruled 5-4 as to remedy, that the Florida decision created new election law by allowing the hand recount, and that no recount could legally be issued.
Going against the Court majority, RBG, as she had done so many times before, stuck to her guns and highlighted the Court’s improper political intermeddling and partisanship behavior. She wrote: “the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent.”
RBG’s dissent is inspiring because she fought back against not only the other male justices but against threats to our democracy through a short but impactful written dissent. Though the politics were contentious, RBG fought for state sovereignty and to dismantle political corruption. She has been a true inspiration to women and to the American people.
I will remember her legacy fondly, as a beacon of hope—especially during this upcoming election—to fight for what is right in the face of adversity. For, I am fiercely independent, and I am fiercely woman.
RBG, known for her dissents, also gave remarkable support for the 4th amendment. Her regard for both was well-demonstrated in the Supreme Court case of Herring v. United., 555 US 135 (2009). In Herring, a 5 to 4 case in which RBG wrote the dissent, the majority held that the “good faith” exception to the exclusionary rule applied when a police officer makes an arrest pursuant to a warrant even where the warrant is based on faulty information contained in the law enforcement computer data system. Dissenting Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer noted, computer programs are the central nervous system of police and sheriff’s departments, and also to those of federal departments and agencies throughout the country, with information often being shared among them. A minor typographical error or a failure to enter information could have dire consequences for individual rights. This was the reality that RBG and her fellow dissenters refused to ignore.
The 4th Amendment protects us as citizens. In the world we live in today, it is more pertinent to know our rights, especially those that are needed when in contact with the police. RBG fought to uphold the 4th Amendment in Herring, and predicted in her dissenting opinion that giving the police leeway to make an arrest based on a technological error, was not just. The legendary RBG set an example in this and other cases of how to uphold and stand for justice. Whoever replaces her will have big shoes to fill.
This was the case where I first understood that Ginsburg was “a warrior for justice” who refused to back down when the Supreme Court played favorites with one religion over another. In Hobby Lobby, the Court ruled that certain for-profit companies cannot be required by the federal government to pay for birth control and emergency contraception for those companies’ employees. The majority claimed that forcing for-profit companies to pay for contraceptives would make them endorse or “propel” the use of contraception, or in effect, “propel” the government’s view that women should use contraception. Justice Ginsburg dissented explaining that any decision to use contraceptives would be made by the woman employee covered by Hobby Lobby’s health plan, not one propelled by the government. “It will be the woman’s autonomous choice, informed by the physician she consults.”
Justice Ginsburg brought out the fact that the real issue was that the cost of an IUD was nearly equivalent to a month’s full-time pay for the Hobby Lobby workers earning the minimum wage. RBG was the voice of minorities, women, and disenfranchised individuals and that is why her passing has left so many people fearful for the future.
In 2014, Ruth Bader Ginsburg authored the dissent in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). The case, a product of the newly enacted Affordable Care Act’s (“ACA”) contraceptive coverage mandate and its friction with the Restoring Religious Freedoms Act (“RFRA”), was ultimately decided in favor of the corporations (Hobby Lobby and Conestoga Wood Specialties Co.). Hobby Lobby and Conestoga successfully argued that they, as closely-held corporations with sincere religious beliefs about contraception, should not be required to provide health insurance coverage for certain methods of contraception and, further, that the contraception coverage mandate (included in the ACA’s list of covered services) was in violation of the companies’ rights under the RFRA. The majority concurred determining that the Department of Health and Human Services, through the ACA, had failed the least-restrictive means test, and that the government would assuredly be responsible for picking up the coverage of any employee refused due to their employer’s objections rooted in their religious beliefs.
In her dissent, Ginsburg, the fervent advocate for women’s rights that she was, demonstrated that the majority’s conclusion was in direct conflict with Congress’ intention to install “comprehensive coverage of preventative care responsive to women’s needs”. (Id.) She also poignantly discussed the roles of owners when they have elected to incorporate a business, suggesting that it is counter-intuitive to allow an owner to escape personal responsibility for the entity’s obligations and yet allow them to impose their personal values on the entirety of the entity. She concluded her dissent by considering the downstream effects that the majority’s decision would have on other corporations skirting the mandate when religious objections may be proffered in different medical contexts. In expressing her concern for the real-life, practical ramifications of a court decision, she was truly writing for tomorrow.
Robert Fitzgerald had a difficult time choosing just one RBG opinion that resonated. He was moved by RBG's handling (as an attorney appearing before the Supreme Court) of the case of Moritz v. Commissioner of Internal Revenue. It was her first Supreme Court gender-discrimination lawsuit and one in which she argued that a man, her client, should not be denied a caretaker tax refund on the basis of his sex. She won that case and it became precedent. Fitzgerald was also intrigued by RBG’s dissent, as an associate justice, in the pay discrimination case, Ledbetter v. Goodyear Tire, 550 US 618 (2007). There, the majority ruled against the female employee on a technicality. Fitzgerald stated: “What I found most inspiring about this case though, was that Justice Ginsburg read her dissent from the bench.” He further noted that "RBG needed the country to pay attention to the insidious way in which women can be victims of pay discrimination. To me, Ledbetter v. Goodyear Tire was the most inspiring.”
In remembering Justice Ginsburg after her passing, I thought of a case that mattered greatly to Justice Ginsburg before she was Justice Ginsburg; she was only Mrs. Ginsburg to the nine men imperiously nested before her when she argued Weinberger v. Wiesenfeld, 420 U.S. 636, (1975).
At issue: did the gender-based distinction made in Social Security benefit legislation violate the Due Process clause of the Fifth Amendment? In particular, Ginsburg argued for Wiesenfeld, the language that allowed a widow and any children she had with her deceased husband to collect social security benefits excluded widowers in the same situation. Only the child could collect the deceased mother’s Social Security benefits; the still-living father was excluded from collecting benefits. The oral arguments did not take long, just over 50 minutes for both the defense and prosecution to argue and Mrs. Ginsburg was given an 8-0 decision (Justice Douglas did not participate).
This was not RBG’s first time in front of the Court; she was confident and concise in her argument for Mr. Wiesenfeld, focusing intently on the base unfairness of the law and the $20,000,000.00 floating in the economy that rightfully belonged to some 15,000 other men in similar situations to that of Mr. Wiesenfeld and his baby boy’s. With her legal aptitude and clarity of argument, it is not difficult to see how Mrs. Ginsburg received her decisive victory.
Why this case, though? My head kept going to a photo I saw of a young RBG from one of the obituaries I read – hard at work in front of a typewriter, hair neatly pulled back with a practiced bow, telltale bags under eyes betraying her composed appearance and showing exactly how tired she was – and why did I keep imagining that younger woman arguing in front of the Court for the rights of this father and son she did not know relatively shortly before that moment?
It hit me: I empathize more with that version of RBG than the untouchable, black-robed, lifetime-appointed, legal genius I was presented in the media before her passing. I listened to the recording of the oral arguments in Weinberger. Mrs. Ginsburg was near perfect with her analysis. She was also, however, not able to hide her personality completely in professionalism before the justices.
In the moments she referenced other cases, analogized her thinking aloud, or responded to a question from the bench, she showed who she was at that moment: a young lawyer up against a country that denies justice broadly, but must be slightly, deliberately, thoughtfully corrected lest those at the margins find themselves again excluded from consideration on Lady Justice’s scales. In creating her argument for Mr. Wiesenfeld to receive social security benefits, RBG noted that women at the time were still unable to pursue careers in the military (foreshadowing her opinion in U.S. v. Virginia), the systemic devaluation of the work roles that women are shuttled into by men, and how, ultimately, the very systems that men created in their tortured, patriarchal certitude of how life ought to be had come back to harm an innocent man.
The arguments and references were not off the cuff, which is what impressed me most in reading and listening to the transcript. It was crisp, pointed legal groundwork and eagle-eyed issue spotting in prior cases that made RBG’s inclusion of broader injustices so inspiring to see. She knew her role: get this man his deserved benefits. She also knew that now was not the time to solve every other issue; if she kept the wheels of justice turning a little, then someone else would have the opportunity to fight the next fight. She planted the ideas in the heads of those justices that other things are not right in the world, and that she would be back to fix them.
It was hard to come to law school after working in public schools for five years. I miss seeing my students every day. They are the reason I decided to come to law school. Sitting in my ten-thousandth hour of Civil Procedure, learning about an obscure rule from a time long gone by, my mind wanders to my students and I think “how is learning this helping them?” I have my answer now. Justice Ginsburg reminds me of a truism oft repeated in the world of sports: luck is what happens when preparation meets opportunity. It is to the luck of countless women and a great many men in the United States that Justice Ginsburg approached her opportunities in front of the Court with the hard work and preparation of someone who brings every tool to the task of dismantling injustice. I want to be like that as a lawyer. I want to know my role, execute my role well, make tiny changes, and get concrete justice for my clients.
Her tireless efforts as a litigator and on the bench have shaped the modern the legal profession and American civil society. Justice Ginsburg provided an example of not just how to be a distinguished lawyer, but how to be a truly exemplary civil servant. Even after continued success as a litigator with the ACLU, Justice Ginsburg knew that her fight was not over and set her sights on the nation's highest court. As a member of the Supreme Court, a watershed moment in gender equality came in her majority opinion in United States v. Virginia 518 U.S. 515 (1996). Writing for the court, Justice Ginsburg set out the “exceedingly persuasive justification test” for laws that discriminate between men and women. The admissions policies at VMI were ruled unconstitutional, and the case firmly set a new place for women in America. She used her power to make the change she knew was right, and she did so fearlessly.
I was deeply affected by the passing of Justice Ruth Bader Ginsburg. Her work in gender equality is especially important to me. As the child of a U.S. Army Ranger, I grew up in a world dominated by men, and being immersed in Army life, brought close to the struggles women have faced—and continue to face—in the military. That is why the majority decision she authored in United States v. Virginia, 518 U.S. 515 (1996) (which I initially read in constitutional law) has stuck with me. It is that majority opinion, and her recently rediscovered work in the 1972 case of Capt. Susan Strunk, that most resonates with me.
U.S. v. Virginia ended the Virginia Military Institute’s longstanding policy of excluding women. VMI is a military college (which is still in operation today.) At the time, it was the last remaining single-sex university in Virginia. Initially, VMI created a second, parallel program exclusively for women. However, this program lacked the rigor of VMI’s military training, its robust funding, and the prestige afforded to its graduates through name recognition and alumni base. VMI insisted that an alternative program was necessary because their unique “adversarial method” of training young male cadets was unsuitable for training women. The Supreme Court disagreed.
Authoring the majority, Justice Ginsburg pointed out that in order to continue to classify based on gender, the government would need to provide an “exceedingly persuasive justification” for the exclusion of women. She noted that at least some women would want to learn under the adversarial method, and some women would be able to meet the rigorous physical and mental standards the program required. “It is on behalf of these women,” wrote Ginsburg, “. . . that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit. . . .”
This ruling brings to mind another case that Ginsburg worked on prior to the bench. She represented Capt. Susan Strunk in 1972, when she challenged the U.S. Military’s policy of automatically discharging pregnant soldiers from duty unless they chose to have an abortion. Capt. Strunk was a devout Catholic, and when her chain of command told her she must either have an abortion or leave the military, she challenged the policy.
In her brief to the Supreme Court, Ginsburg argued that policies such as this “are often characterized as ‘protective’ and beneficial.” Yet, “[t]he pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage. . . .” Foreshadowing her opinion in U.S. v. Virginia, this illustrates how gender discrimination is often cloaked in paternalistic notions of “what’s best for women”—something that Justice Ginsburg was keen to call out.
There is another Ginsburg quote that illustrates these ideas well: “Women belong in all places where decisions are being made. It shouldn't be that women are the exception.”
Because of her life and work, I live in a world where I know that I belong—in all places—where power is held, and decisions are being made. I am not a special policy, an alternative program, or an exception to a rule. In fact, if there is a place where rules are being made, I deserve a seat at the table where my voice can be heard.
Justice Ruth Bader Ginsburg was well known for her many dissents, given that her entire tenure was spent on the Court under a conservative majority. One constitutional law case of note was her dissent in Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), the Affordable Care Act case.
Chief Justice John Roberts, writing for the majority, found the individual mandate to be outside of the scope of Congress’s commerce power. Id. at 550. Ultimately, Roberts “saved” the individual mandate, and the ACA, by permitting it to stand under Congress’s taxing power but dismissed the commerce clause argument.
Chief Justice Roberts characterized the failure to enroll in a health insurance program as an exercise of personal freedom. He opined that if the people could be forced to enter the market for health insurance, what would stop Congress from forcing people to be more healthy by buying broccoli?
Chief Justice Roberts failed to grapple with the much more obvious reason people do not enroll in private health insurance: prohibitive costs. Although the ACA helped lower the costs of health care, many plans remain too expensive for Americans operating on a shoestring budget. Although the individual mandate may have been overly bureaucratic and complex, it was nevertheless an honest effort to bring down the costs of health care for everyone.
Although the individual mandate was saved by relying on Congress’s taxing power, Justice Ginsburg, sensing the danger of a weakened commerce power, took the time to craft a smart and insightful dissent.
Justice Ginsburg actually grappled with the questions that Chief Justice Roberts ignored for convenience’s sake. Justice Ginsburg noted that “unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate.” Id. at 590 (J. Ginsburg, dissenting). She recognized that a healthcare system without the individual mandate causes those with health insurance to subsidize the medical care of those without it. Id. at 593. She commented on reality, the reality that states are ill equipped to deal with the problem of rising health care costs. “States that individually take measures to cap the costs risk businesses fleeing their states, so it is entirely proper for the federal government to assert itself on commerce grounds.”
Ginsburg made clear that the Supreme Court did not need to be the referee on this particular issue because the people are entirely within their rights to vote out the members of Congress who passed the ACA (and in fact, many people did just that). Justice Ginsburg recognized that the Supreme Court’s restriction on the scope of Congressional power was in itself a form of legislating from the bench. See id. at 603. Ginsburg’s dissent ends with a telling quip: “[The] inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well.” Id. at 607-08.
In so few words, she dismantled Chief Justice Roberts’ absurd broccoli analogy, but she did so in a way that did not insult him on a personal level. This case is an encapsulation of the jurist she was.
More than a legend, RBG’s jurisprudence served to advance the rights of women and other disadvantaged communities. She was a treasure.
Ruth Bader Ginsburg spoke truth to power and fought fervently (on and off the bench) for equal rights in America. She advocated so women could choose a future they wanted to pursue, rather than being told what they could or could not do. More than anything, RBG believed in the power and importance of a strong democracy that ensured equal access for all. She had a keen understanding of discrimination, and how hard people will work to keep marginalized groups down. She knew that one of the most important rights to protect was the right to vote. Because of past decisions in Shelby County, Bush v. Gore, and Citizens United, American elections are at risk more than ever. RBG knew the lengths Republicans would go to ensure they held onto their minority rule, which is why the Voters Right Act of 1965 – a triumph in American legislation – needed to be upheld and protected. Although, the liberal justices did not receive the majority vote, RBG’s dissent in Shelby Countyis something every American should revisit today and work to get these protections back.
Shelby County v. Holder, 570 U.S. 529 (2013), the majority opinion, written by Chief Justice Roberts, essentially decided that voter discrimination and disenfranchisement was no longer an issue in the South. Under Section 5 of the Voting Rights Act, certain states and local governments had to receive federal congressional approval (known as “preclearance”) before enacting any change to their election and voting laws. This legislation was enacted in response to nearly a century of racist voter suppression and intimidation that had occurred in the South since the passing of the 15th Amendment. Indeed, in spite of the Voting Rights Act, local governments in the South continuously tried to dismantle voter rights – which is why it is no surprise they continue to do so today! Vann R. Newkirk II, Voter Suppression is Warping Democracy, The Atlantic (July 17, 2018) https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-suppression/565355/. However, despite the mounting historical evidence and the thousands of pages of congressional findings gathered when Congress reauthorized the Voting Right Acts in 2006, Chief Justice Roberts and the conservatives on the bench held the preclearance unconstitutional because “things have changed dramatically.”
One of RBG’s most famous lines cut against Robert’s position that racism has been cured in America: “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.” Rather than looking at the advancements in American voting rights and determining protections are no longer necessary, RBG aptly understood the very reason we have seen progress is because of the Voting Rights Act and dismantling the system that protects millions of Americans’ voting rights is not only foolish, but also dangerous. “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” RBG continued, and she warned that this is how “history repeats itself.” She was correct. Since the 2013 ruling, numerous states that would have undergone preclearance have now enacted policies that disenfranchise voters: from strict photo ID requirements to closing polling places to purging the voter rolls. P.R. Lockhart, How Shelby County v. Holder Upended Voting Rights in America, Vox (June 25, 2019), https://www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress.
That RBG wrote this infamous dissent in the same year President Obama asked her to retire is its own “sad irony.” Even after surviving cancer twice and demonstrating an acute understanding of how Republicans and the conservatives on the bench are okay with undermining democracy, she could not bring herself to retire. She should have realized that by choosing not to retire, she too was “throwing away [an] umbrella in a rainstorm.” That decision has placed the countless Americans—especially those who she spent her entire career working to secure rights and protect—at risk. Leigh Gilmore, Amy Coney Barrett is Bad for Women. And Terrible for RBG’s Legacy, WBUR (Sept. 28, 2020), https://www.wbur.org/cognoscenti/2020/09/28/amy-coney-barrett-rbg-supreme-court-leigh-gilmore.
Even so, her decision not to retire does not change the fact that the life of RBG is truly inspirational and has shaped how many Americans view freedom and equality. On the contrary, I hope in death, her life continues to inspire us to work hard to ensure democracy and freedom for all. Though she may have been an institutionalist, my hope is that Americans, in witnessing the events in response to her death, realize it is time that we change our institutional structures—maybe we no longer need lifetime appointments and term limited should be amended to the Constitution; or maybe Congress writes and passes a court-packing bill if Biden is elected. No matter what path is chosen to redeem the latest usurpation of power, one thing is certain, the world today is very different from when RBG entered it, and we are all the better for it. Mark Joseph Stern, Ruth Bader Ginsburg Changed the World, Slate (Sept. 18, 2020), https://slate.com/news-and-politics/2020/09/ruth-bader-ginsburg-changed-the-world.html.
When I think of Justice Ruth Bader Ginsburg, I think of Ledbetter v. Goodyear Tire (2007), a wage discrimination case. This case was one of the first constitutional law cases I remember reading where a dissent stood out. I recall flipping back to see which justice wrote those words. I learned that Justice Ginsburg had even read her dissent out loud from the bench. I had never heard of such a practice.
The trial court originally ruled in favor of Ledbetter, awarding her $360,000. However, the appellate court reversed and dismissed her claim, and the dismissal was upheld by the U.S. Supreme Court. Justice Ginsburg wrote a fiery dissent calling the majority’s view “parsimonious” and a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. RBG’s dissent was an embodiment of who she was.
She and the dissent were unapologetically passionate for the cause of equal rights. Her dissent showed the need for a change in the law. And after the 2008 election, the Lily Ledbetter Fair Pay Act was introduced to Congress. Lily Ledbetter, the former-Goodyear Tire employee, who campaigned for then Presidential nominee Barack Obama, and even had a speaking role in the Democratic National Convention, watched as President Obama once elected, signed the Ledbetter Act into law. When I think of Justice Ginsburg, I think of this case, her actions and her advocacy and what she did to prevent such discrimination from happening again in our country.
The Fourteenth Amendment’s guarantee of equal protection under the law has not always been a guarantee. This was evident in Virginia Military Institute’s (VMI) previous admission policy of only accepting men. Although there was somewhat similar program there for women, the failure of VMI to offer the same opportunities for men and women led to a challenge that made its way to the Supreme Court of the United States. The decision of the Supreme Court of the United States holding this comparable program for women unconstitutional in United States v. Virginia forever changed the landscape for gender equality in our country. Writing for the majority, Justice Ruth Bader Ginsburg made it clear that the inherent differences between men and women should in no way give power to any institution to deny women the same opportunities available for their male counterparts. The opinion was built on the idea that sex discrimination exists and should not be tolerated, reflecting much of the work Ginsburg has done throughout her lifetime.
The “comparable” program not only detracted from potential opportunities that graduates would have but also was created based on an unfounded ideology that women could not handle what male students would face at VMI. The impact of this philosophy can likely resonate with women all over the world. Though there are many more opportunities available for women today than there have historically been, there is still an unsettling feeling that some dreams will require breaking through a glass ceiling. For example, though the National Football League is celebrating its 100-year anniversary this year, it was a historical moment this weekend when a game featured a female referee and two females in coaching positions on opposing teams. The celebration of change can also be paired with a sense of despair that it took far too long to have the value of a woman involved in the sports industry to be recognized.
Ruth Bader Ginsburg’s impact on equality will hopefully live on long after her passing. It is only with a deep understanding of her life’s work that one can truly appreciate the value of her contribution to our society. Her strategical genius to make a lifelong plan to impact the world in the best way she saw fit is an inspiration to pursue your dreams yet to never be discouraged with a failure or two. As she said, “Fight for the things you care about, but do it in a way that will lead others to join you.” This logical yet challenging view on life’s purpose is a gentle reminder that change takes influence, effort, leadership, and often an excessive amount of time. In such challenging times, our only hope is that her brilliance resonated with enough force to continue on our journey of a sounder future.
Ruth Bader Ginsburg lived an extraordinary life. She not only paved the way for expanding rights for women but dedicated her whole legal career to achieving justice for all. She was humble and did not lose her vision for justice. This was exemplified for me in Florida v. J.L., 529 U.S. 266 (2000) where she wrote (for an unanimous court) an opinion requiring police to have, at least, a verifiable confidential informant before conducting a stop and frisk search of a person. She drew a distinct line that the police cannot cross so that our liberties are not abused.
In J.L., the police were given an anonymous tip that a man in the flannel shirt was outside of a convenience store with a gun. The police arrived and saw the man (who was, in fact, a fifteen-year-old black youth). They stopped him and searched him and found a gun. There was no other information or probable cause indicating that J.L. possessed a gun. The police acted solely on an anonymous tip. Justice Ginsburg, writing for the court, held that despite the accuracy of the tip, it was anonymously given and unverified. As a result the stop and frisk was unjustified. Justice Ginsburg explained that an anonymous tip must have an “indicia of reliability” to constitute the reasonable suspicion standard necessary for a stop and frisk. Justice Ginsburg’s words made clear that if the police are going to use a tip or an outside “source,” there must be verification. Unverified tips do not verify criminal activity.
If there is no verification, then the tip is just a rumor, ripe for abuse by fraudulent anonymous tipsters. Justice Ginsburg understood that if the door was opened for the police to use an unreliable tip of gun possession as a way to skirt Fourth Amendment protections, then it would only be a matter of time before other illegal conduct could be used as a mere excuse or pretext to violate our constitutional rights. She forcefully required police to stay on the side of justice.