Selected as Consensus Builder, Ginsburg Embraced Dissenting Role

Ruth Bader Ginsburg, who died Friday, was famous for her powerful dissents, but the “Notorious RBG” didn’t start out that way.

“If this is a time for consensus building on the court, and I believe it is, Judge Ginsburg will be an able and effective architect,” President Bill Clinton said inannouncing the then-60-year-old-jurist’s high court nomination in 1993.

Ginsburg certainly parted ways with the majority during her dozen years on the Rehnquist Court, but her more vivid dissents under Chief Justice John Roberts were written in the hopes they’d “prove to be the basis of change” in the future and attracted more public attention and sparked debate, said biographerJane De Hart.

Writing in the early days of the Covid-19 crisis in 2020—15 years into the Roberts Court—Ginsburg lamented that the high court’s five Republican appointeesput voters in an impossible situation: “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”

Ginsburg embraced her role as dissenter, writing minority opinions ranging from environmental law tointellectual property to civil procedure. Her most memorable—and perhaps most effective—concerned civil rights.

What follows is a look at some of Ginsburg’s most memorable dissents.

Shelby County v. Holder (2013)

The 5-4 majoritystruck down a key provision of the landmark Voting Rights Act of 1965, effectively dismantling “preclearance,” which required federal approval of changes to election laws for state and local governments with histories of discriminatory voting practices.

Ginsburg’s Shelby County dissent prompted New York University law student Shana Knizhnik to create the popular “Notorious RBG” moniker, which solidified the justice as a pop culture icon.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg wrote in the now-famous passage, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Ledbetter v. Goodyear Tire & Rubber Co. (2007)

Lilly Ledbetter had waited too long to claim she’d been paid less than her male counterparts during 20 years of work at the same plant in Gadsden, Ala., the 5-4majority said in dismissing her claim under Title VII of the Civil Rights Act.

Noting that Congress in 1991 had to fix the court’s “cramped interpretation of Title VII,” Ginsburg urged the legislative branch “to correct this Court’s parsimonious reading” of the statute. “Once again, the ball is in Congress’ court.”

President Barack Obama’s first act signed into law was the Lilly Ledbetter Fair Pay Act of 2009, reversing the court’s ruling by resetting the clock on discrimination claims with each paycheck.

Burwell v. Hobby Lobby Stores, Inc. (2014)

Closely-held corporations whose owners have religious objections to providing contraceptive coverage to employees are exempt from the Affordable Care Act’s requirement to do so, the majorityruled in a 2014 case that sparked a more”notorious” dissent.

Ginsburg predicted that the ruling, though couched as limited, would make it more difficult for women to obtain contraceptive coverage. That’s eventually what happened under the Trump administration, which, with the blessing of the high court’s majority, has provided broad religious exemptions.

“The Court, I fear,” Ginsburg wrote in Hobby Lobby, “has ventured into a minefield.”

Fisher v. Univ. of Tex. at Austin (2013)

In assessing the University of Texas at Austin’s affirmative action policies, the justicesruled that the lower court hadn’t properly assessed whether the plan met the only goal the court has approved: creating a diverse student body to the benefit of all learners.

In her solo dissent in the case known as Fisher I, Ginsburg argued that universities should be able to consider past discrimination in establishing affirmative action programs, not just the benefits of a diverse student body. Holding otherwise just forces universities to mask their true intentions, Ginsburg said.

Speaking of Texas’s Top Ten Percent Law, which guaranteed state students who graduated in that portion of their high school class automatic admission to state schools, Ginsburg said “only an ostrich could regard the supposedly neutral alternatives as race unconscious.”

Connick v. Thompson (2011)

In another 5-4 case, the courtruled that John Thompson couldn’t sue Orleans Parish District Attorney Harry Connick for failing to adequately train his prosecutors on the requirements of Brady v. Maryland, which mandate disclosure of certain favorable evidence to the defense. Thompson was acquitted of murder after spending 18 years in jail because a prosecutor failed to turn over exculpatory evidence.

Ginsburg, who isn’t as well known for progressive stances in criminal justice cases, led the four dissenters in taking the majority to task for ignoring what she deemed the obvious.

“What happened here, the Court’s opinion obscures,” the justice wrote, “was no momentary oversight, no single incident of a lone officer’s misconduct.”

Rather, Ginsburg argued, “the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility.”

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at [email protected]; Jordan S. Rubin in Washington at [email protected]

To contact the editors responsible for this story: Seth Stern at [email protected]; John Crawley at [email protected]

Source: Read Full Article