Supreme Court Justice Ruth Bader Ginsburg passed away on the evening of Friday, September 18, 2020, at the age of 87. She died following her fifth bout with cancer, which had metastasized to her pancreas. She is preceded in death by her husband, Martin, and is survived by two children and four grandchildren. Ginsburg, the second woman appointed to the U.S. Supreme Court, earned her reputation at its most fervent judicial activist during her 27 years on the court. At the same time, she became the jurist most lionized by cultural leaders, who quoted her cutting political dissents and dubbed her “The Notorious RBG.”
Members of the conservative opposition respectfully cited Ginsburg’s groundbreaking career as an advocate for working women and her legal consistency. Attorney General William Barr remembered Ginsburg as “a brilliant and successful litigator, an admired court of appeals judge, and a profoundly influential Supreme Court Justice. For all her achievements in those roles, she will perhaps be remembered most for inspiring women in the legal profession and beyond.” Acting Solicitor General Jeffrey B. Wall honored her as “an incisive questioner, a clear and careful writer, and a model of dignity and civility.”
Ginsburg was born on March 15, 1933, in Brooklyn, New York. Her mother, Celia Bader, died as the future justice graduated from James Madison High School. Ginsburg distinguished herself in college and met her husband at Cornell Law School, starting a family as she began her legal career in the 1950s. She struggled to find a clerkship, then a professional position – but only momentarily. In time, Ginsburg taught law at Rutgers Law School, became the first female to earn tenure at Columbia Law School, and founded the Women’s Rights Project at the American Civil Liberties Union. Much of her early political activism targeted legal distinctions between men and women, including proposing a change to gender-based language.
In 1977, she co-authored a report with Brenda Feigen-Fasteau on behalf of U.S. Commission on Civil Rights titled, “Sex Bias in the U.S. Code.” Ginsburg suggested the government should abolish all single-sex institutions, including prisons. She called on the authorities to “[c]hange the name and eliminate the single sex character of the Federal Reformatory for Women as part of the larger reorganization of the [f]ederal correctional system necessitated by the equal rights principle” – namely that all sex-segregated prisons should be replaced by “penal institutions housing both males and females.” She argued that prostitution may fall under the constitutional right to privacy as defined by Roe v. Wade ˆand that a legal sanction against bigamy “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.”
Contrary to certain “fact checks,” one of the Ginsburg report’s “recommendations” held that statutory rape laws should only apply when “the other person” – e.g., the victim – “is, in fact, less than 12 years old.” This upholds the report’s belief that the law should “require a substantial age differential between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.”
President Jimmy Carter named Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in 1980. In 1993, President Bill Clinton nominated Ginsburg to replace the last center-right Supreme Court justice appointed by a Democrat, Justice Byron “Whizzer” White. The Senate confirmed possibly the most activist justice in the court’s history by a 96-3 vote; the only nay votes came from Sens. Jesse Helms of North Carolina, Bob Smith of New Hampshire, and Don Nickles of Oklahoma.
On the high court, she regularly disregarded original intent in favor of a “living Constitution” model of jurisprudence. The rationale behind her decisions was often starkly political. Ginsburg’s dissent in the Janus case stated frankly that she opposed laws that let non-union members refuse to pay union dues, because “[p]ublic employee unions will lose a secure source of financial support.” In her dissent of Gonzales v. Carhart, she ruled that laws restricting partial birth abortion constituted “undue restrictions on abortion” that undermine women’s “equal citizenship status.” In Citizens United, she dissented that, although the law prohibited a political action committee from airing a campaign film within 30 days of an election, “[n]either Citizens United’s nor any other corporation’s speech has been ‘banned.’”
Ginsburg held an excessively narrow view of religious liberty. She ruled that believers who hold to traditional moral teachings on marriage and sexuality could be compelled to produce products that they believe make them complicit in sin. She dissented in the Hobby Lobby case that Christians lose the right to live out their faith once they enter business, in part because the free exercise of religion “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.” She sided against the Little Sisters of the Poor, arguing against a “blanket exemption for religious and moral objectors,” because it would require the nuns’ female employees “to pay for contraceptive services out of their own pockets.” She ruled against the presence of a cross commemorating fallen soldiers and a tax write-off for scholarships that could be used at parochial schools. However, she discovered that the 1964 Civil Rights Act covered same-sex attraction and transgender people, and the U.S. Constitution struck down dozens of state constitutional amendments defining marriage in a traditional manner.
Ruth Bader Ginsburg became a leading advocate of citing foreign law in U.S. Supreme Court rulings. She told the Constitutional Court of South Africa in 2006 that opposition to substituting foreign law for the views of the Founding Fathers is “a passing phase.” She found it “disquieting” that opponents of replacing the Constitution with foreign court rulings “have attracted sizable support,” as it will only “fuel the irrational fringe.”
Throughout her legal career, she saw herself as a crusader on behalf of equal opportunity, especially for women. She authored the 1996 decision forcing the Virginia Military Institute to admit female students. Coed admission was necessary, she said, for women to advance to the highest ranks of the military.
As the court moved to the Right, her position on the court took on ever-greater importance in her life. She rarely missed a hearing, even when ailing from cancer. The day after her husband passed away, she showed up at the Supreme Court.
Politics remained on Ginsburg’s mind until the last. Days before her death, she reportedly told her granddaughter Clara Spera, “My most fervent wish is that I will not be replaced until a new president is installed.” She apparently did not consider the possibility that a new president may not be installed until 2025.
The political clash to replace the court’s most reliable left-wing vote will now take center stage in the last 45 days of the presidential election. It will also expose politicians’ inconsistency. President Donald Trump, who opposed holding a vote on ill-fated Obama nominee Merrick Garland, said recently that he would move swiftly to fill a Supreme Court vacancy. Vice President Joe Biden, who opposed filling a Supreme Court nominee in an election year in 1992 but flip-flopped in 2016 to support Garland, reversed himself again after Ginsburg’s death. “The voters should pick the president, and the president should pick the justice for the senate to consider,” he tweeted. Senate Majority Leader Mitch McConnell, who denied Garland a hearing in 2016, said Friday that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” (McConnell said at the time that his rule held only when the Senate and the White House were controlled by different parties, a nuance that will inevitably be lost in 2020 Senate campaign ads.) Meanwhile, Minority Leader Chuck Schumer, who lobbied for Garland’s confirmation, said that Ginsburg’s “vacancy should not be filled until we have a new president.”
Good people of all political persuasions should agree that, whenever confirmation hearings take place, they should be devoid of the politics of personal destruction and threats of political violence that have marked the recent past. Ginsburg often boasted of her close relationship with Originalist Justice Antonin Scalia, which became the subject of a one-act opera. In the rush to politicize the court, extreme partisans on both sides risk losing sight of the human person who has passed away.
People of goodwill on both sides of the aisle paused Friday night to pay their respects. President Carter called her “a beacon of justice” and “truly great.” Longtime judicial foes at the Alliance Defending Freedom, the pro-life Susan B. Anthony List, and the Family Research Council offered prayers and condolences to her family. And those who served with her offered fond memories and high praise of her mental acumen.
“She and I did not agree on every issue, but her legal ability, personal integrity, and determination were beyond doubt,” Barr said. “She leaves a towering legacy, and all who seek justice mourn her loss.”
Ginsburg will be buried at Arlington National Cemetery.
(Photo credit: Associated Press.)