Steve September 19, 2020
ginsburg-penned-fierce-dissents-in-fight-for-civil,-voting-and-women’s-rights

Justice Ruth Bader Ginsburg’s razor-sharp mind, her wit and her deft mastery of language made her one of the best — and most biting — writers of Supreme Court rulings and dissents in memory. Her death Friday has taken from the court a legal legend. 

Despite the utter control and careful decorum she exhibited in public, her outrage and even fury were palpable in her writing — and in face-offs with lawyers arguing their cases in court. The late Justice Antonin Scalia once called her a “tigress on civil procedure.” She will “take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone,” he noted in a 2013 interview.

That ferocity was evident in her writing, especially in dissents in cases on women’s, civil and voting rights.

Ginsburg was so obviously upset about a Supreme Court ruling in 2000 that handed the presidential election that year to George W. Bush over his Democratic presidential rival, Al Gore, that she breached decorum by replacing the usual ending “Respectfully, I dissent” to simply “I dissent.” 

Throwing out pre-clearance 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.
Dissent in voting rights case

In an ominous harbinger of what Americans could be in for this year, the court in Bush v. Gore overturned a recount decision by Florida’s Supreme Court that resulted in handing Bush all of the state’s electoral votes. It was a decision Ginsburg considered an outrageous overreach of power by the Supreme Court over a state.

“I might join the chief justice were it my commission to interpret Florida law,” Ginsburg noted sarcastically.

“The 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. This principle reflects the core of federalism, on which all agree,” she noted.

“Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court,” Ginsburg concluded.

In another biting dissent regarding elections, Ginsburg in 2013 criticized a Supreme Court ruling that canceled a provision in the Voting Rights Act which required some jurisdictions with a history of discrimination to submit to federal oversight before making changes in voting procedures.

The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination.
Dissent in Ledbetter pay discrimination case

“Throwing out pre-clearance 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,” she wrote in her dissent.

That dissent won her the pop-culture nickname “Notorious RGB,” a reference to rapper Notorious B.I.G.

Some of Ginsburg’s most stinging criticisms were launched against Supreme Court rulings on gender discrimination.

In 2007, Ginsburg upbraided the all-male majority in a 5-4 ruling rebuffing a pay discrimination suit from a 19-year female employee in Ledbetter v. Goodyear Tire. She let her fellow justices know that they just didn’t get it.

“The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” she wrote, and called upon Congress to act against gender discrimination.

Years later, Ginsburg angrily accused the justices of “stepping into a minefield” with their ruling in the notorious 2014 Hobby Lobby case, which allowed private companies to deny health insurance coverage for female contraception because of religious beliefs.

Your right to swing your arms ends just where the other man’s nose begins.
Dissent in Hobby Lobby religious freedom case

“In the Court’s view, [the Religious Freedom Information Act] demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith — in these cases, thousands of women employed by Hobby Lobby and Conestoga,” she wrote. 

Ginsburg noted that religious organizations “foster the interests of persons subscribing to the same religious faith,” which is “not so” for corporations, which involves people with diverse beliefs. Yet this distinction “constantly slips the court’s attention,” she wrote. In such a situation, “Your right to swing your arms ends just where the other man’s nose begins,” Ginsburg noted.  

Ginsburg revisited the issue in a dissent last July after the court cleared the way for the Trump administration to expand exemptions for employers who have religious or moral objections to complying with the Affordable Care Act’s contraceptive coverage mandate.

“For the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” she wrote in her angry dissent.

For the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.
Dissent in religious freedom case on contraception

“The court leaves women workers to fend for themselves” for contraceptive coverage, a decision that impacts as many as 126,000 women of childbearing age, she underscored. 

It was a long way from where Ginsburg likely imagined she would be after her early days serving on the court. In 1996, Ginsburg wrote for the 7-1 majority ruling in United States v. Virginia that male-only admission at the Virginia Military Institute was a violation of the 14th Amendment’s Equal Protection Clause.  

The rule was “presumptively invalid … a law or official policy that denies to women, simply because they are women, equal opportunity to aspire, achieve, participate in, and contribute to society, based upon what they can do,” Ginsburg wrote.

It was a groundbreaking decision in the battle to establish gender equality as a fundamental constitutional standard.

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