I Dissent: R.I.P. to the Notorious R.B.G. – A Tribute to RBG & Her Legacy

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Supreme Court Associate Justice Ruth Bader Ginsburg, the second woman to serve on the nation’s highest court, the 107th Supreme Court Justice, and a legal and cultural icon passed away Friday, September 18, 2020. The Supreme Court announced her passing in a press release late Friday evening, saying the cause was complications from metastatic pancreas cancer. The Court, in its statement, said Justice Ginsburg died at her home in Washington, D.C. surrounded by her family. She was 87 years old.

News outlets quickly began to report about her passing Friday evening and canceled scheduled programming to discuss Justice Ginsburg’s passing. Crowds gathered to hold impromptu vigils to mourn and celebrate Justice Ginsburg’s life over the weekend on the steps outside of the Supreme Court. The NPR “Up First” podcast covered the legacy of Justice Ginsburg (commonly referred to as RBG) in a bonus episode, available here.

In his statement, Chief Justice John G. Roberts, Jr. states that “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence, that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice.”

On Sunday, the Supreme Court announced that according to tradition, there will be a memorial draping of the Courtroom as Justice Ginsburg’s Bench Chair and the Bench directly in front of it will be draped with a black wool crepe in memoriam. In addition, a black drape has been hung over the Courtroom doors, and the flags on the Court’s front Plaza will be flown at half-staff for 30 days. This tradition is said to date back to the death of Chief Justice Salmon P. Chase in 1873 and has been followed ever since.

Pathway to the Supreme Court Bench

Born and raised in Brooklyn, New York, in 1933, RBG attended public schools during the Great Depression and World War II. Her father was a Russian immigrant, and her mother, Ceila Bader, died of cancer the day before RBG’s high school graduation. At the age of 17 she attended Cornell University on a full scholarship where she met her husband, Martin Ginsburg.

The two married and moved to Fort Sill, Oklahoma, where Martin completed his military service after graduating from Cornell. There, RBG faced gender discrimination where the only job she was offered was as a typist and even lost the job after she became pregnant. Two years later the couple moved to attend Harvard Law School together. Justice Ginsburg represented one of only nine females in a class of more than 500.

Then, her husband was diagnosed with cancer while the two were attending Harvard law. This left RBG with a 3-year-old child, a sick husband, classes to attend and the duty to support her family. After attending her own classes, receiving notes for Martin’s classes from his peers, preparing dinner for the family, caring for a sick Martin, and typing his senior paper, per his dictation, she would return to her own coursework at around 2 a.m. and repeat it all over again the next day.

Despite these struggles, she remained at the top of her Harvard Law class. When her husband graduated and got a job in New York, RBG transferred to Columbia Law School after the Harvard Dean wouldn’t allow her to complete course work in New York. Nonetheless, she still graduated from the top of her class and received her L.L.B. (Legum Baccalaureus, the predecessor to a Juris Doctor, J.D.) from Columbia.

As NPR notes in a recent article, “[d]espite her academic achievements, the doors to law firms were closed to women, and though recommended for a Supreme Court clerkship, she wasn’t even interviewed.” After being overlooked for numerous jobs despite her stellar academic record, RBG eventually landed a position as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. She went on to become a law professor at Rutgers University School of Law from 1963–1972 and Columbia Law School from 1972–1980.

In 1971, she co-founded the Women’s Rights Project of the American Civil Liberties Union. She served as the ACLU’s General Counsel from 1973–1980 and on the National Board of Directors from 1974–1980. At the ACLU, she was able to lay the foundation for real change in the legal system, especially in dismantling legalized gender discrimination.

She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980 by President Jimmy Carter. President Clinton later nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.

Laying the Foundation for Real Change

At the height of debate over women’s rights, the Equal Rights Amendment (ERA) in particular, RBG served as the head of the ACLU Women’s Rights Project, where she decided what cases the ACLU would support as they made their way up the appeals ladder to an all-male Supreme Court. Her strategy was to go after that small and insidious idea that the Supreme Court had been keeping alive for years, that “Phyllis Schlafly”-idea that discrimination is actually good for women.

Making History at the Supreme Court Before She was a Justice

While still a Professor at Columbia, she was active in arguing important gender discrimination cases before the Supreme Court as the ACLU’s General Counsel. In a six-year period, RBG argued six gender discrimination cases before the all-male 1975 Berger Court. The six cases are as follows: Frontiero v. Richardson, Kahn v. Shevin, Weinberger v. Wiesenfeld, Edwards v. Healy, Califano v. Goldfarb, and Duren v. Missouri.

Before RBG argued and won Duren v. Missouri, women in Missouri were automatically exempted from jury duty. That ended in 1979 when the Court announced its 8-1 decision striking down Missouri’s practice of automatically exempting women from jury duty. The Court found, as RBG argued, there was no significant state interest to justify exempting women from jury service

In Frontiero v. Richardson, she notably argued successfully against federal laws that prevented a female U.S. Air Force Lieutenant from claiming her husband as a dependent and receiving a dependent allowance. The law at issue automatically made the wives of male military members dependents and allowed males to receive extra benefits in the form of a dependent allowance, but denied female military service members from claiming their husbands as dependents.

RBG decided not just to bring cases where women were the victims of discrimination, but ones with men as victims of gender discrimination.

In Weinberger v. Wiesenfeld Ginsburg represented Stephen Wiesenfeld, a widower whose wife, a schoolteacher, had died in childbirth. He was left having to raise their infant son alone, so he applied for survivor benefits from his wife’s Social Security. He was denied. While widows automatically received survivor benefits, widowers like Wiesenfeld did not. The all-male 1975 Berger Court relied on earlier cases argued and won by RBG, including Frontiero v. Richardson, and unanimously ruled that gender-based discrimination regarding Social Security benefits “violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners.”^[1]  Gender discrimination regarding Social Security benefits was rightfully ruled illogical and counter-productive thanks to RBG.

The plaintiff in one pivotal case for gender equality, Craig v. Boren, was Curtis Craig, a male college student and fraternity brother at Oklahoma State University who just wanted to be able to buy beer at the local “Honk ‘n Holler” convenience store. The operator of the Honk ‘n Holler, Carolyn Whitener, joined as a plaintiff in the case once the case progressed to the Court after Craig had turned 21 and rendered his case moot.

The case involved a Oklahoma statute regulating the sale of beer with an alcohol content of 3.2 percent. Women were allowed to purchase such beer at 18, but men were barred from doing so until they turned 21. (Neither men nor women could purchase harder liquor until they were 21.)

Ginsburg and the ACLU filed an amicus brief with the Supreme Court for the plaintiffs and stood with them in court. Radiolab’s “More Perfect” podcast series about the Supreme Court details the case here and Ginsburg’s genius in getting the Supreme Court to strike down the Oklahoma statute as unconstitutional and establish a new standard for review in gender discrimination cases.

Making History on the Supreme Court: Notable Decisions

U.S. v. Virginia (1999):

Justice Ginsburg authored and announced from the bench the 7-1 opinion that struck down the Virginia Military Institute’s (VMI) male-only admissions policy as unconstitutional for violating the 14th Amendment’s Equal Protection Clause. In that opinion, she cites the groundbreaking case that she wrote the brief for back in 1971, Reed, stating that “Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women.”^[2]  Concluding the majority’s opinion, Justice Ginsburg wrote that, “[t]here is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’”^[3]

The impact of this decision was seen in 2018 when Justice Ginsburg actually visited and spoke at VMI for the first time where she wore a “keydet” pin that the mothers of graduating cadets received in the ’60s. The pin had been sent to her from a male 1967 VMI graduate and Vietnam veteran after his own mother died. In her speech, the Justice stated, “he wrote to me that when his mother died he thought I might like to have the pin — he thought she would be proud if I would wear it.”

Olmstead v. L.C. (1999):

In the 6-3 majority opinion in the case of Olmstead v. L.C. by Justice Ginsburg, the Court held that individuals with mental disabilities have the right to community-based housing under the Americans with Disabilities Act, provided that states have sufficient resources and treatment professionals say it is appropriate. Justice Ginsburg concluded that the “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”^[4]

Friends of the Earth v. Laidlaw Environmental Services (2000):

Writing the 7-2 majority opinion in the case of Friends of the Earth v. Laidlaw Environmental Services, Justice Ginsburg and the Court held that a citizen suitor’s claim for civil penalties under the Clean Water Act need not be dismissed as moot when the defendant, after commencement of the litigation, has come into compliance and stopped polluting. “A would-be polluter may or may not be dissuaded by the existence of a remedy on the books, but a defendant once hit in its pocketbook will surely think twice before polluting again.”^[5]  And a defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case,” Justice Ginsburg wrote for the Court.^[6]

Arizona State Legislature v. Arizona Independent Redistricting Commission (2015):

The 5-4 decision for the Arizona Independent Redistricting Commission held that the Elections Clause of the federal Constitution did not preclude an independent commission, created by initiative, from creating the map for congressional districts. The decision authored by Justice Ginsburg effectively ruled that states may attempt to remove partisan politics and gerrymandering from the drawing of congressional districts by creating independent commissions that take districting away from elected officials. Justice Ginsburg concluded the majority’s opinion by writing that, in creating an independent redistricting commission, “Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’ The Elections Clause does not hinder that endeavor.”^[7]

Timbs v. Indiana (2019):

In Timbs v. Indiana, the Court held that the Eighth Amendment’s excessive fines clause was an incorporated protection applicable to the states under the 14th Amendment. For the plaintiff in the case, Tyson Timbs, this meant that Indiana could not forfeit his personal vehicle, a Land Rover, in connection with his criminal conviction. But the decision was more impactful than returning a Land Rover; it made clear for the first time that the Eighth Amendment’s prohibition against excessive fines applies to states and localities as well as the federal government. In the majority opinion authored by Ginsburg, she makes evident that “the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is fundamental to our scheme of ordered liberty, with deep roots in our history and tradition.”^[8]

The Land Rover was returned to Timbs in May of 2020.

I Dissent: The Great Dissenter

RBG dressed for decisions and dissents. She had a special collar, or jabot, for announcing majority opinions from the bench and another for her frequent, and more celebrated, dissents. A collection of RBG’s dissents were even animated and published in a 2016 picture book for children. She lent her knowledge and voice to countless opinions, and became particularly well known for her polite yet fierce and clearly worded dissents. Here are three of RBG’s memorable dissenting opinions.

Hanging Chads and Bush v. Gore, 2000

Bush v. Gore is certainly a case that changed the course of modern United States history. One may recall the debacle over hanging chads, vote recounts, and the debate over whether Al Gore should’ve won. Critics proclaim that the Court’s holding ended the Florida recount and effectively handed George W. Bush the victory in Florida and the keys to the White House.

Following the Court’s unanimous decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Al Gore’s contest of the certification of Florida election results, the Florida Supreme Court ordered a manual recount of 9,000 contested ballots in Miami-Dade county and that every county in Florida must immediately begin manually recounting all “under-votes” (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. The case came before the Court again after the Bush campaign filed a request for review and sought an emergency petition for a stay of that Florida Supreme Court decision.

The Court in a per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. Furthermore, the Court held, 5-4 that no constitutional recount could be fashioned in the limited time remaining before the 43rd President was to take office.

In her dissent, Justice Ginsburg argued that for reasons of federalism, the Florida Supreme Court’s decision ought to be respected and that it was fundamentally right because the Constitution requires that every vote be counted. “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,” she wrote. “Such an untested prophecy should not decide the Presidency of the United States.”^[9] At the conclusion of her dissent, she allowed a rare breach of decorum, writing not “Respectfully, I dissent,” but, with a quiet fury her now iconic, “I dissent.”^[10]

Ledbetter v. Goodyear Tire & Rubber Company, 2007

In Ledbetter v. Goodyear, Ledbetter sued her employer of 19 years, Goodyear, for gender discrimination, after she discovered Goodyear was paying her less than her male coworkers. Ledbetter argued the pay disparity was due to her gender and a violation of Title VII of the Civil Rights Act of 1964. Goodyear argued that discrimination complaints had to be filed within 180 days of the violation, so Ledbetter could only legally question the 180 days of unequal pay leading up to her official complaint, rather than the entirety of her nearly two-decade tenure.

In a 5-4 decision the Supreme Court agreed with Goodyear. Ginsburg authored the dissenting opinion, pointing out how Ledbetter couldn’t have filed her complaint sooner because she didn’t know she was being discriminated against, as she wrote “pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops over time. Comparative pay information, moreover, is often hidden from the employee’s view.”^[11]

And Ginsburg didn’t just quietly follow the usual practice of filing her dissent with a clerk, but she read the dissent publicly from the bench, making sure the gender wage gap got its due attention. Her dissent was a call to correct the Court’s decision which was “totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.”^[12] Justice Ginsburg concluded her dissent by calling on Congress to overturn the decision, stating, “[o]nce again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”^[13]

Congress agreed with Justice Ginsburg by effectively overturning the majority’s decision just two years later with the enactment of the Lilly Ledbetter Fair Pay Act (FPA).^[14] The FPA was the first bill that President Obama signed when he took office in 2009. Justice Ginsburg’s dissent in Ledbetter signifies that even when you seem to be down and your position appears lost, there are ways you can move forward to win.

Shelby County v. Holder (2013)

Ginsburg’s dissent in Shelby County v. Holder is perhaps her most famous. She eloquently and fiercely criticized the majority’s 5-4 ruling that struck down Section 4 of the Voting Rights Act of 1965. This decision effectively removed requirements on states to get federal approval for elections and voting policy changes. Those requirements were set in place in response to “entrenched racial discrimination in voting.”^[15] Despite this, the majority found that those requirements made sense in the 1960s and 1970s. But did not make sense any longer and represented an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states.

In her dissenting opinion, Justice Ginsburg argued that voting discrimination still exists and that Section 4 of the Voting Rights Act should not be overturned in order to continue to combat racial discrimination in elections. She made this clear, writing 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.”^[16]

Time magazine details the significance of Justice Ginsburg’s dissent further in this article. Her dissent in Shelby County is what led to Ginsburg being dubbed “the Notorious R.B.G.”

Supreme Court Rockstar: The Notorious R.B.G.

The nickname, Notorious R.B.G. is a play on the deceased rapper and fellow Brooklyn native Notorious B.I.G. and Justice Ginsburg’s initials. It is how many now remember and refer to Justice Ginsburg, largely thanks to the “Notorious R.B.G.” Tumblr blog, created in 2013 by then-law student Shana Knizhnik, and now a new book, Notorious RBG: The Life and Times of Justice Ruth Bader Ginsburg, co-written with MSNBC journalist Irin Carmon.

Nina Totenberg of NPR writes that despite being well into her eighties, Justice Ginsburg, “became something of a rock star to women of all ages.” Specifically, Justice Ginsburg was the subject of a hit documentary, a biopic, countless merchandise featuring her “Notorious RBG” moniker, a Time magazine cover, regular Saturday Night Live sketches, workouts on the Late Show with Stephen Colbert, an action figure, and even the namesake for a new species of praying mantis – the Ilomantis ginsburgae.

In Conclusion: Leave the World a Little Better

In a New York Times Daily podcast episode about her life and legacy, a recording of RBG appropriately concludes the episode with some of her words to live by:

Whatever you choose to do, leave tracks and that means don’t do just for yourself because in the end, it’s not going to be fully satisfying. I think you will want to leave the world a little better for you having lived. And there’s no satisfaction that a person can gain from just what people call turning over a buck that’s equal to the satisfaction that you get from knowing that you have made another’s life, your community a little better for your effort.

RBG certainly made the world a better place.

When one looks back at the whole arc of Justice Ginsburg’s life and work, there’s really no single person who has accomplished what she has for women — and for men, too — in the notion of equality. Thanks to RBG that notion of equality, the essential equality of the sexes that she fought for is now ingrained in our legal structure. And thanks to her work and life, that’s not going to be taken away. Justice Ruth Bader Ginsburg left Americans in a good place. Thank you, Justice Ruth Bader Ginsburg.

 

^[1] Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 1227, 43 L. Ed. 2d 514 (1975)

^[2] United States v. Virginia, 518 U.S. 515, 532, 116 S. Ct. 2264, 2275, 135 L. Ed. 2d 735, XXX (1996).

^[3] Id. at 558, 116 S. Ct. at 2287, 135 L. Ed. 2d at XXX.

^[4] Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600, 119 S. Ct. 2176, 2187, 144 L. Ed. 2d 540 (1999).

^[5] Friends of the Earth v. Laidlaw Env’tal Servs., 528 U.S. 167, 186, 120 S. Ct. 693, 707.

^[6] Id. at 174.

^[7] Arizona State Legis. v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 824, 135 S. Ct. 2652, 2677, 192 L. Ed. 2d 704 (2015).

^[8] Timbs v. Indiana, 139 S. Ct. 682, 686–87, 203 L. Ed. 2d 11 (2019).

^[9] Bush v. Gore, 531 U.S. 98, 144, 121 S. Ct. 525, 550, 148 L. Ed. 2d 388 (2000).

^[10] Id.

^[11] Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 645, 127 S. Ct. 2162, 2178–79, 167 L. Ed. 2d 982 (2007), overturned due to legislative action (Jan. 29, 2009).

^[12] Id., at 550 U.S. 618, 660, 127 S. Ct. 2162, 2188, 167 L. Ed. 2d 982 (2007).

^[13] Id., 550 U.S. 618, 661, 127 S. Ct. 2162, 2188, 167 L. Ed. 2d 982 (2007).

^[14] Pub. L. No. 111-2(Jan. 29, 2009); codified at 42 U.S.C. § 2000e-5(e)(3)(A).

^[15] Shelby Cty., Ala. v. Holder, 570 U.S. 529, 535, 133 S. Ct. 2612, 2618, 186 L. Ed. 2d 651 (2013).

^[16] Shelby Cty., Ala. v. Holder, 570 U.S. 529, 590, 133 S. Ct. 2612, 2650, 186 L. Ed. 2d 651 (2013).