U.S. Supreme Court Associate Justice Ruth Bader Ginsburg is seen during a public appearance hosted by the Museum of the City of New York at the New York Academy of Medicine in New York, NY, USA on December 15, 2018. (Photo by Albin Lohr-Jones/Sipa USA)(Sipa via AP Images)
The country lost a fierce advocate for civil rights and women’s liberty Friday, September 18th, when Supreme Court Justice Ruth Bader Ginsburg passed away at age 87 due to metastatic pancreatic cancer. She leaves behind a sweeping legal legacy, having influenced many landmark Supreme Court rulings — even in her dissent.
“The genius of this Constitution is that, over the course of now more than two centuries, ‘we the people’ has become more and more inclusive,” the late Supreme Court Justice told the Wall Street Journal. “So it includes people whose ancestors were held in human bondage. It includes Native Americans, who were not part of [the original 1789] ‘we the people.’”
Trailblazer for Women
Ginsburg, the founder of the American Civil Liberties Union (ACLU) Women’s Rights Project, was sworn in as the 107th Supreme Court justice on August 10, 1993 by President Bill Clinton. She became the second woman appointed to the Supreme Court after Sandra Day O’Connor. In 211 years, a total of 112 Justices have served on the U.S. Supreme Court. To date, only four women have sat on the distinguished bench.
Hailed as the Thurgood Marshall of the women’s rights movement, Ginsburg devoted herself to fighting for the rights of women and other marginalized peoples. One case at a time, she persuaded the Supreme Court to end the discrimination on the basis of gender, like Marshall, the first African American justice to serve on the Supreme Court (1967 to 1991), did against racial discrimination.
After O’Connor retired in January 2006, Justice Ginsburg served as the only woman on the Supreme Court for more than three years, which she has referred to as “the worst times.” Eventually she was joined by two women appointed by President Barack Obama: Sonia Sotomayor in 2009 and Elena Kagan in 2010. This said, she famously maintained a beautiful and unlikely friendship with the staunchly right-leaning Justice Antonin Scalia.
Over decades, Ginsburg established herself as a respected voice in decision and dissent — especially in politically divisive cases relating to gender rights, abortion, voting rights, civil rights and the Affordable Care Act. “When a justice is of the firm view that the majority got it wrong, she is free to say so in dissent. I take advantage of that prerogative, when I think it is important, as do my colleagues,” Ginsburg wrote in a 2016 opinion piece in The New York Times.
Among her most notable Supreme Court decisions and dissents:
United States v. Virginia, 1996: The Virginia Military Institute was the last remaining all-male public undergraduate college or university in the nation in 1996. That changed when the Supreme Court ruled that the gender-exclusive admissions policy violated the Equal Protection Clause of the 14th Amendment of the Constitution.
Bush v. Gore, 2000: Ginsburg cast the minority vote in this case about the contested race in Florida that potentially impacted the outcome of the 2000 presidential election of President George W. Bush over Al Gore. The Bush campaign filed an emergency application to stop a Florida Supreme Court order for a manual recount of ballots. The high court sided with the Bush campaign, which critics say handed Bush the deciding-state win and the presidency. Ginsburg’s opinion stated “I dissent” — a succinct phrase that went against court decorum (justices typically add “respectfully”).
Obergefell v. Hodges, 2015: An outspoken advocate for LGBTQ rights, Ginsburg is believed to have swayed public and court opinion in this 5-4 ruling that legalized same-sex marriage in all 50 states.
Shelby County v. Holder, 2013: Ginsburg had strong words against this 5-4 Supreme Court decision, which invalidated a key provision in the Voting Rights Act of 1965. The Act, widely considered the most effective piece of civil rights legislation, aimed to protect Black citizens’ voting rights and outlaw discriminatory practices. “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,” stated Ginsburg in her dissent.
Sessions v. Dimaya, 2018: Ginsburg was instrumental in striking down legislation that permitted certain non-citizens to be expelled from the United States.
Olmstead v. LC, 1999: The high court voted 6–3 in honor of the rights of people with mental disabilities to live in their communities under Title II of the Americans with Disabilities Act (ADA).
Ledbetter v. Goodyear Tire & Rubber Company, 2007: Ginsburg lost this case with a 5-4 vote in favor of Goodyear, but Ginsburg powerfully dissented and ensured the gender wage gap received its due attention. Ginsburg successfully pushed Congress to amend the respective clause, and the first bill President Barack Obama signed when he took office in 2009 was the Lilly Ledbetter Fair Pay Act.
Ginsburg also underscored the nuances of pay discrimination. “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination at work develops over time,” she wrote.
Whole Woman’s Health v. Hellerstedt, 2016: Ginsburg and her fellow justices struck down a restrictive Texas abortion bill in a 5-3 vote.
Federal Indian Law
In her early opinions, Ginsburg has been criticized for her votes impacting federal Indian law, namely some majority opinions that denied Tribal claims involving property. She has admitted regret, particularly as relates to City of Sherrill v. Oneida Indian Nation. In her later years, she often sided with Indian Country.
McGirt v. Oklahoma: She was part of the 5-4 majority decision in McGirt v. Oklahoma, an historic ruling that determined that half of Oklahoma is Indian land. The landmark decision in July affirmed that 19 million acres composing 47 percent of the state of Oklahoma is in fact Tribal land under the 1866 treaty, never disestablished by Congress.
Washington State v. Cougar Den: Ginsburg also upheld Tribal treaty rights with her vote in the 5-4 Supreme Court determination made in Washington State Department of Licensing v. Cougar Den taxation case. The high court ruled to honor a provision in the Yakama Nation’s Treaty of 1855, which allows Tribal members to travel freely on public highways and transport goods across state lines without taxation. That’s a right the Tribe fought for when it ceded 12 million acres of Tribal lands — a swath of land greater than the size of Maryland.
Ginsburg also notably sided with Tribal interests in the Crow Tribe hunting case, Herrera v. Wyoming.
“So much justice has been denied to Native American communities because they have not had a seat at the table,” Ginsburg said in May, stating it’s time for a Native American to serve on the Supreme Court.
Supreme Court Justice Replacement
The passing of the longest-serving liberal member of the U.S. Supreme Court opens a vacancy in a contentious election year.
On Friday, Senate Majority Leader Mitch McConnell vowed that whomever President Donald Trump nominates to replace the late Ginsburg on the Supreme Court will receive a vote on the Senate floor. All nine Supreme Court Justices, including one Chief Justice, are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Ginsburg was part of the four-person liberal minority.
Recent confirmation proceedings of Supreme Court nominees have taken two to three months, which means there could not be enough time to confirm a nominee before Election Day, November 3rd. But McConnell, a Kentucky Republican who controls the majority of the Senate chamber, could speed that up if he has the votes to confirm a replacement.
In a statement, House Speaker Nancy Pelosi said, “We must honor Justice Ginsburg’s trailblazing career and safeguard her powerful legacy by ensuring that the next Associate Justice of the Supreme Court upholds her commitment to equality, opportunity and justice for all.”
If Joe Biden wins the presidency and time allows him to nominate a successor, he has promised to put the first Black woman on the court. As Ginsburg recently told her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed,” NPR reported.
A feminist hero, the famously dissenting Ginsburg rose to icon status, garnering the moniker Notorious R.B.G., which is also the title of a best-selling documentary about her. It’s, of course, a play off the name of the infamous rapper Notorious B.I.G., who was Brooklyn-born just like Ginsburg.
“You Can’t Spell Truth Without Ruth” became another slogan for her leadership, and a popular bumper sticker.
And a Hollywood biopic, “On the Basis of Sex,” was made about her early life and her first gender discrimination court case — that a man was unfairly discriminated against on the basis of sex. She fought to set a precedent that could then be cited to challenge laws that discriminate against women.
Throughout her storied career, Ginsburg battled five bouts with pancreatic, lung and colon cancer, and she literally carried the weight of civil rights and women rights to her grave.
Ginsburg walked on hours before the setting sun that ushers in Rosh Hashanah. According to the tenets of Judaism, the most righteous souls, tzaddiks, die on the holy Jewish New Year.
“If you want to be a true professional, you will do something outside yourself, something to repair tears in your community, something to make life a little better for people less fortunate than you,” Ginsburg has said. “That’s what I think a meaningful life is — living not for oneself, but for one’s community.”