· CHAPTER 19 ·
Losing Marty and Leading the Minority
It was a frigid January day. The sun shone brightly as citizens poured into the nation’s capital for the inauguration of the forty-fourth president. The crowd—two million strong—stretched all the way from the Capitol to the Washington Monument. When a tall, slender African American took the oath of office on the same Bible that Abraham Lincoln had used at his inauguration in 1861, the symbolism inspired some in the audience to hope that the election of a candidate whose mother hailed from Kansas, his father from Kenya, and his half sister from Indonesia signified the arrival of a new post-ethnic, multiracial order. Most pronounced was the collective yearning for a president who shared and would update the liberal political tradition that had shaped his party.
Ginsburg shared the excitement. James had alerted his mother to the eloquent community organizer turned politician even before he was elected to the Senate in 2004. When the Court subsequently held one of its rare dinners for members of the Senate, she had requested that the Obamas be seated at her table. As she got to know the couple, Ginsburg found the highly cerebral, pragmatic moderate senator to be sympathique—a French word conveying her highest form of praise. Yet others, who during the campaign had questioned Obama’s citizenship, claiming he was born in Kenya, a Muslim, and a “socialist,” remained convinced that he represented a threat beyond that posed by his recent Democratic predecessors, Carter and Clinton.
The challenges awaiting the new administration staggered. An economic crisis had wiped out savings and left fifteen million workers unemployed and an economy in recession. Something had to be done about a collapsed housing market, accelerating income inequality, and a global banking collapse. A broken health system demanded urgent attention as did escalating costs of ever more frequent climate-related catastrophes. A disengaged but combat-weary nation wanted its military personnel recalled from Afghanistan and Iraq at the same time that terrorist threats promised perpetual war. And despite protestations by some whites that racism had been conquered, America’s “original sin” remained a powerful presence.
With Congress controlled by Democrats, Obama, a skilled policy maker, hoped for bipartisanship. But Republican opposition—honed in the House since Newt Gingrich clashed with Bill Clinton—had spread to the Senate as an increasingly ideological electorate became less inclined to trust members of the opposing party. A few days after the election, Republican minority leader Mitch McConnell assembled his caucus to lay out his strategy for obstructing and undermining the new president at every opportunity. Abetted by conservative interest groups, think tanks, right-wing media, and the Internet, McConnell would succeed in manipulating the rules of the Senate to block administration initiatives large and small.
Nor was the GOP establishment the only part of the Republican Party bent on opposition. Grassroots activists on the far right felt betrayed by the Bush administration’s high-cost bailouts of banks. Resentful of a political class irresponsive to “average Americans” that failed to keep its word about reducing either the size of government or the national debt, they feared that Obama would continue the stimulus package and other expensive government programs, including a new health-care initiative. White middle-class, middle-aged, and elderly, they also believed that minorities, and especially immigrants, had not earned the right to government benefits to which productive citizens were entitled.
In rallying to “take their country back,” many of these aggrieved insurgents had more in mind than the size of government and the exigencies of fiscal policy. The commander in chief was a black liberal intellectual, as was his attorney general. The majority leader of the House wore pearls. An openly gay Jew headed the powerful House Financial Services Committee, which appropriated funds for the Wall Street bailout. A thirty-eight-year-old, pregnant, unmarried Latina congresswoman proudly served her California constituents, and the daughter of Puerto Rican migrants would soon gain a seat on the Court. Even more telling, minority births would exceed those of whites in 2011. For those who still believed that the United States was a heterosexual, white, Christian country where men set the standard and subordinate groups stayed in their place, this was not change Tea Partiers could believe in.
Building on this grassroots momentum and claiming close ideological affiliation, professionally run right-wing advocacy groups such as FreedomWorks and Americans for Prosperity jumped in. Pushing their own billionaire-funded agenda, they called for reducing government regulations, privatizing Social Security and Medicare, and lowering taxes on businesses and the rich. Aided by complicit right-wing media, the augmented Tea Party movement, working together with the GOP, used a technologically sophisticated plan for redistricting following the 2010 census that packed conservative whites into Republican districts. The success of operation REDMAP enabled the GOP to wrest the House from Democratic control only two years after Obama’s election, forcing the president to withdraw further stimulus to the economy and thereby prolonging recovery from the recession.
The extent to which racial dynamics stoked extreme partisan opposition is unclear. Americans generally disclaim the explicit racism of the pre–civil rights era. Yet the single-mindedness with which Republicans would oppose every major legislative proposal made by the first black president suggests that far more was at play than policy or partisan differences. The election of 2008 produced widespread racialization among many conservative whites that played out along partisan lines, as subsequent events and scholarship have amply demonstrated. Racial spillover reinforced hostile responses to critical administration programs, from the stimulus package, health care, and tax policy to Obama’s eventual endorsement of same-sex marriage. To be clear, this is not to say that everyone opposing Obama or his policies was a racist. It is to say that after 2008 political divisions became much more influenced by racial considerations, as did mass politics. The result not only further compounded the challenges the new president faced. The GOP’s extreme partisanship combined with conservatives’ mistrust in government, white nationalism, and xenophobia would also help enable Donald Trump’s candidacy.
Barack Obama is sworn in as the forty-fourth U.S. president, January 20, 2009.
Ginsburg also found the early years of the new administration to be a trying time. Despite her friendships with Scalia and Souter, she still felt acutely O’Connor’s absence. As the lone woman on the Court, she complained that her male colleagues’ discourse seemed to have reverted to the prefeminist era of the popular television show Mad Men.
She had never felt more so than during oral arguments in April 2009 for Safford Unified School District v. Redding. Based on a tip from a classmate, Safford Middle School officials searched the backpack of thirteen-year-old Savana Redding for ibuprofen, which was not allowed on campus. Two female staff members then conducted a strip search without the consent of the girl’s mother. Neither search found any contraband. Redding’s mother filed suit against the school district claiming the second search violated her daughter’s Fourth Amendment right to be free from unreasonable search and seizure.
During oral arguments, male justices failed to understand the perspective of the young girl, comparing her experience to that of changing into a swimsuit or gym clothes. Ginsburg, futilely attempting to remove the notion of triviality with which the argument was infused, pointed out that the young girl was forced to “shake [her] bra out, to stretch the top of [her] pants and shake that out.” This could not be compared to changing for gym class. Breyer, missing Ginsburg’s point, related his own experiences in the school locker room, stating that it was “not beyond human experience” for people to stick things in their underwear.
Unlike her colleagues on the bench, members of the press corps recognized Ginsburg’s annoyance. Nina Totenberg noted how “the Court’s only female justice bristled, her eyes flashing with anger,” while Joan Biskupic described her as “openly frustrated.” In a subsequent interview, Ginsburg explained, “Maybe a 13-year-old boy in a locker room doesn’t have that same feeling about his body….It’s a very sensitive age for a girl. I don’t think that my colleagues, some of them, quite understood.”
Thanks to the press, the men on the bench got the message, ruling overwhelmingly that Redding’s Fourth Amendment rights had been violated. Nevertheless, Ginsburg ardently believed that the Court needed another woman’s voice. One small woman and “eight rather well-fed men” would hardly inspire young girls who wished to follow in the footsteps of their two history-making predecessors, she commented.
Political cartoon, September 19, 2014, reflecting the racism of right-wing Obamaphobes.
Foremost among Ginsburg’s concerns was Marty’s health. His devotion, brilliance, and irrepressible wit had been a constant in her life. Cancer, the scourge he had struggled against during his third year at Harvard Law School, had returned in 2006—this time as a tumor growing near his spine. Even standing to cook had finally become almost too painful for him to endure, although dinner was the one time when the couple could sit down and enjoy their nightly discussion of law over good food and wine. Both husband and wife were keenly aware that there were limits to how long Marty’s doctors would be able to postpone the inevitable.
At the end of the 2009 spring term, Souter announced plans for retirement. His utter distaste for the Roberts Court—“its disrespect for precedent, its grasping conservatism, and its aggressive pursuit of political objectives”—had swiftly mounted. The chief justice’s maneuvering over the issue of campaign financing, which boldly raised questions not asked and not necessary to resolve, sealed Souter’s decision.
Ginsburg understood Souter’s intense frustration. Treating corporations as worthy of exercising First Amendment rights and counting the money they spent on political campaigns as speech that could not constitutionally be constrained by campaign finance laws limiting corporate contributions would wreak havoc on the political process. Citizens United, she was convinced, undermined the fundamental principle of democracy, especially at a time when the richest 0.1 percent have more wealth than the bottom 90 percent. There was also the critical issue of segregation in public education, on the rise since the 1980s and unconstrained by a conservative majority that disdained precedent. The impact was evident in the Seattle and Louisville rulings on integration plans in public schools. She had joined Breyer’s passionate dissent. And then there was the Heller decision expanding an individual’s right to bear arms—a ruling contrary to the view of the Second Amendment held by all the lower federal courts—that delighted the NRA and its right-wing supporters.
To make matters worse, Ginsburg received word in January 2009 that she had again been diagnosed with cancer. Fortunately, the malignancy had been detected at a very early stage, and the tumor was small—only about one centimeter. Yet undergoing the removal of even an early-stage pancreatic cancer—typically followed by radiation and chemotherapy—is arduous.
Scheduling the surgery at Memorial Sloan Kettering Cancer Center in New York in early February, the justice returned to Washington, managing once again to avoid missing a single oral argument during the spring term. Still, her delight at Jane’s most recent honors for her global contribution to law on intellectual property could not obscure the side effects of her own extended treatments and the toll exacted by Marty’s frequent visits to his doctors. Fighting cancer on two fronts had left Ginsburg exhausted and her formidable resolve depleted.
Then came a phone call from Marilyn Horne, the great mezzo-soprano. Horne told the justice that when she had been told of her own diagnosis of pancreatic cancer, she said to herself, “I will live. Not I hope I will live, but I will live.” The effect of the call was invigorating, firmly implanting those three words in Ginsburg’s mind. For months, they served as a mantra, constantly reinforced by Marty.
The president provided additional boosts. The first piece of legislation that he signed after sweeping into office with a Democratic Congress was the Lilly Ledbetter Fair Pay Act of 2009. Making it easier for a worker to sue for illegal wage discrimination, the act extended the 180-day statute of limitations so that each new paycheck was affected by an initial discriminatory wage decision. A copy of the bill, inscribed by Obama, now hangs in Ginsburg’s chambers. Then, as a replacement for Souter, the president chose Judge Sonia Sotomayor, who he believed understood “how the world works and how ordinary people live.”
President Barack Obama, surrounded by lawmakers and Lilly Ledbetter, signed the Lilly Ledbetter Fair Pay Act, 2009.
A candidate with a compelling life story, not unlike Ginsburg’s own, Sotomayor had lost her father when she was only nine. Absorbing her mother’s conviction that education offered the key to a better life, she made the transition from the Bronx to the Ivy League, thanks to affirmative action. Demonstrating her intellectual chops during her years at Princeton, she graduated summa cum laude before heading to Yale Law School. After working as an assistant district attorney in Manhattan and as a corporate litigator, Sotomayor served for six years as judge on the U.S. District Court for the Southern District of New York before moving to the Second Circuit.
Still, the nominee’s strong qualifications did not guarantee a smooth confirmation. Opponents made much of a speech she had delivered at Berkeley in 2001, during which she suggested that “a wise Latina woman” might reach a better judgment than “a white man who hasn’t lived that life.” Ultimately, Sotomayor’s record as a judge to whom facts and precedent mattered overwhelmed Republican claims that she was a reflexive liberal who made decisions based on empathy rather than law.
Confirmed on August 6, 2009, she received an especially warm welcome from Ginsburg, who thought all the fuss about the “wise Latina woman” remark had been “ridiculous.” All judges are influenced by their life experiences, Ginsburg maintained, just as she herself had been. The newest member of the Court, she predicted, would indeed “hold her own.”
Less than a year later, Justice Stevens, still vigorous and sharp at ninety, announced his retirement, after almost thirty-five years on the Court. Solicitor General Elena Kagan proved to be a serious contender for his seat. She had grown up on Manhattan’s Upper West Side. Her mother, an elementary school teacher, rigorously challenged young Elena, nourishing a fierce intellect, while her father inspired his daughter’s love of opera and the law. After concluding her studies at Princeton, Oxford, and Harvard Law School, Kagan clerked for Judge Abner Mikva at the Court of Appeals for the D.C. Circuit and then for Justice Thurgood Marshall.
Stevens (second from right) celebrates his retirement with (from left) President Obama and Justices Souter and Kennedy, September 8, 2009.
Following a stint as a professor at the University of Chicago Law School, she moved to the Clinton White House—initially as a member of the White House counsel’s staff and then as a major adviser on domestic policy. When Republicans blocked her nomination to the D.C. Circuit, she returned to academia, using her superb teaching skills, deft political touch, and expansive personality to good advantage at Harvard Law School. Obama had lured the first female dean of his alma mater back to Washington as the first woman solicitor general.
Kagan’s intellectual stature and caution in expressing her political beliefs made her confirmation possible. Yet the hearings did not go smoothly. Some Democrats disliked her support for executive power. Republicans complained that because she had no judicial experience, she was insufficiently prepared for a seat on the high court. Defenders pointed out that she had served as solicitor general—the “Tenth Justice,” which gave her a deep understanding of the Court’s work. Republicans also objected to her decision to bar military recruiters from Harvard Law School because of the military’s “don’t ask, don’t tell” policy for homosexuals, which ran afoul of Harvard’s antidiscrimination policy. Nevertheless, in August, the Senate voted to confirm 63–37.
Ginsburg found the two new appointments “exhilarating.” She had known both women previously, and neither was a “shrinking violet.” Sotomayor would indeed prove a tenacious interrogator, displaying common sense and a keen sensitivity to injustice, especially in the criminal justice system. Kagan’s brilliance, good judgment, sense of humor, and inimitable capacity for building bridges with those of different views also made her a force to be reckoned with. Someone who could see the big picture, she could become a fitting intellectual opponent for Roberts. Asked by Obama if she was happy with her new sisters, Ginsburg replied that she would be even happier if he would give her four more.
Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan pose together at Justice Kagan’s investiture.
While the new justices added energy to the minority, the ideological balance of the Court remained unaltered. The five justices appointed by Republicans and the four by Democrats would continue to hold competing values on such issues as the balance of state and federal power, how best to pursue equality, the appropriate methods for interpreting the Constitution, and the role of the Court in a democracy.
One important change had occurred with Justice Stevens’s retirement. In those cases where the chief justice was in the minority or when a dissent was required by the liberal quartet, Ginsburg, as the senior associate justice, would now assign opinions. Stevens had provided his replacement with a superb model of coalitional and intellectual leadership. Employing his position strategically, he had courted O’Connor and Kennedy to maximize the chances of getting five votes, assigning Kennedy the majority opinion in Lawrence v. Texas, a 2003 landmark decision invalidating bans on consensual sex between same-sex individuals. In other cases, Stevens himself wrote the opinion in order to keep Kennedy on board. When he wrote for the minority, as in Bush v. Gore and Citizens United, the veteran Stevens proved fierce in dissent.
Whether Ginsburg, who had more of a reputation as a loner, would be as persuasive as her predecessor had been with Kennedy seemed doubtful to the veteran Court analyst Jeffrey Toobin. Unlike O’Connor, who was a consistent compromiser and a gradualist during her years as the swing vote, Kennedy had in some areas moved closer to his impatient fellow conservatives, including cases involving reproductive rights. Referring to Kennedy’s “flowery, discursive rhetorical opinions”—in contrast with Ginsburg’s narrow, often dull ones—Toobin observed that the two justices were just not temperamentally harmonious. As the Carhart decision upholding the Partial-Birth Abortion Ban Act demonstrated, Kennedy’s opinions could drive the famously restrained and ever polite Ginsburg to something close to rage.
But if Kennedy’s vote proved elusive, she could move the Court—and the public—in other ways. Her seniority, formidable intellect, and nuanced understanding of legal issues would count for much. As her recent dissent in Ledbetter revealed, she had a gift for communicating the complex ramifications of the Court’s rulings in simple language that could have a galvanizing impact on the broader public.
The greatest dissents, Ginsburg maintained, “speak to a future age” by becoming Court opinions and, gradually over time, the dominant view. Hence, she would try to persuade Breyer, Sotomayor, and Kagan that their dissents would be more powerful if they spoke in one voice rather than separately. She also resolved to make assignments fairly, retaining fewer for herself than had Stevens. Yet as the liberal anchor of the Court, she would write in closely watched cases.
In the immediate future, however, plans for the fall term had to be put on the back burner as Marty’s condition further deteriorated. During a hospital stay in early June 2010, his doctors at Johns Hopkins Medical Center reported that nothing more could be done. Marty managed to hold on for their fifty-sixth wedding anniversary. When Ruth arrived at the hospital on June 25 to bring him home, she pulled out the drawer next to his bed. In it, she found a yellow pad with a handwritten note.
6/7/10
My dearest Ruth—
You are the only person I have loved in my life, setting aside, a bit, parents and kids, and their kids. And I have admired and loved you almost since the day we first met at Cornell some 56 years ago.
What a treat it has been to watch you progress to the very top of the legal world.
I will be in JH Medical Center until Friday, June 25, I believe, and between then and now, I shall think hard on my remaining health and life, and whether on balance the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms.
I hope you will support where I come out, but I understand you may not. I will not love you a jot less.
Marty
On the following Sunday, June 27, Marty died at home of complications of metastatic cancer—hauntingly, almost exactly sixty years after Ruth’s mother, Celia, had succumbed to the dreaded disease. In a final protective act, he had taken from his wife the burden of the decision.
The next morning, the final day of the Court’s term, an “ashen faced” Ginsburg took her seat on the bench to announce her majority opinion in Christian Legal Society Chapter v. Martinez—a ruling that said a Christian group at a public law school could not bar gay students. Marty, she believed, would have wanted her to be there. Stevens was retiring, and his colleagues had written a letter that Roberts read aloud. Stevens thanked his colleagues “and each of your spouses—present and departed—for your warm and enduring friendship”—a reference to Marty, whose death Roberts had announced at the beginning of the session. Ruth managed to control her tears during the session, though Scalia could not.
Burial took place in a private ceremony at Arlington National Cemetery.
In the weeks that followed, Ginsburg carried out not only every one of her speaking engagements but also Marty’s, displaying remarkable emotional stamina, just as she had throughout his long illnesses. Despite her grief, she knew they had been exceedingly fortunate to have had so many years together. Even her former Columbia colleague Professor Henry Monaghan marveled at their long love affair: “In their gestures…you could just see!”
Family, always a source of great pleasure, now helped ease the pain. Jane, who not only shared Marty’s culinary skills but exceeded her father’s production of legal casebooks, came down from New York on a monthly basis to prepare food that could be put in small containers and stored in her parents’ freezer. Otherwise, she feared that Ruth would revert to her old staples of Jell-O and cottage cheese. Mother and daughter shared their interest in law and family. Jane’s son, Paul, who had graduated from Yale Drama School and trained at the Conservatoire National Supérieur d’Art Dramatique, was beginning his professional career as an actor in Paris.
Paul’s feisty, talkative younger sister, Clara, whom Ginsburg had memorably introduced at her nomination to the Court as the first member of her family to meet Hillary Clinton, had followed in Jane’s footsteps. Attending the Brearley School in New York and then the University of Chicago, she was majoring in Romance languages and literature while pursuing a variety of summer internships. After graduating with honors two years later, she would be off to Cambridge University to pursue two master’s degrees, one in gender studies and the other in European literature and culture, and then back home for Harvard Law School.
Ginsburg knew that familiarity with France on the part of her Spera grandchildren was no accident. Jane had become a Francophile during that first summer spent living with a French family near Lake Annecy in lieu of summer camp. She had always spoken French to Paul and Clara and, as they became older, sent them to spend time with a French family in the summer. James would also expose his daughters, Mimi and Abby, in similar exchanges. It was one of the many ways in which Ginsburg’s parenting style had been transmitted to her grandchildren.
James, in fact, also provided his mother with much to be delighted about—most especially his forthcoming marriage to Patrice Michaels. A lovely soprano and a former solo vocalist with the Chicago Lyric Opera, Patrice balanced national and international performances with a part-time job as lecturer and director of vocal studies at the University of Chicago. The elder Ginsburgs, aware that James’s previous marriage had been an unhappy one, were convinced that this “unbelievably wonderful” woman would be the wife that they believed their son finally deserved. Patrice, they agreed, would also be a great help to James with his Grammy Award–winning classical recording company, Cedille Records.
Because this new blended family would include James’s two daughters, Miranda (Mimi) and Abigail (Abby), as well as Patrice’s two sons, Harjinder (Harji) and Satinder (Sat Nam) Bedi, from a previous marriage, new quarters were essential. Marty, knowing he had little time left, had purchased a new house for the couple in Chicago, following the example set by his own parents, who had helped financially when help was needed. Ruth would perform the wedding ceremony the day after Marty’s memorial service on September 3. She would then officially become the step-grandmother of two handsome boys who, like their natural father, were Sikh. And there was also Derrell Acon. A protégé of Patrice’s when she taught at Lawrence University in Wisconsin, Derrell had come from one of the most troubled areas of Detroit. He was now doing advanced studies in music at the University of Cincinnati College-Conservatory of Music. Very much part of Patrice’s family, he would now become part of Ginsburg’s as well.
For years, Ruth and Marty had made the Santa Fe Opera an essential part of their August agenda. This year George Spera called to say that he and James would accompany Ruth. Patrice also wanted to come and bring Derrell, and Abby refused to be left behind. Fortunately, a next-door neighbor of Scalia’s offered his Tesuque adobe, with three and a half bedrooms, near the opera that could accommodate the justice’s newly extended family. With the house also available in future years, Santa Fe would become the site of annual family gatherings, beloved by the justice not only for its music, museums, galleries, and surroundings but also for her growing circle of friends.
On conversational terms with many of the vocalists and staff, the justice had already developed a reputation not only as a “discerning, intelligent operagoer” but as one “keenly interested in new and unusual repertory” and new composers, according to the Santa Fe Opera’s general director, Charles MacKay. Always accompanied by U.S. marshals and usually escorted to her seat in the orchestra section by MacKay, Ginsburg was often the recipient of small flurries of spontaneous applause when she entered. While respecting her privacy, operagoers sometimes stopped to thank her for a particular opinion or dissent.
That year there was also a stopover in Colorado Springs at the end of August for a meeting of the judicial conference for the Tenth Circuit bench and bar where she was joined by Beverley McLachlin, the chief justice of Canada’s Supreme Court. After the formal speeches and dinner, the two justices took the stage for a “fireside chat” about their careers. Ginsburg’s candor and humor had the audience “in fits of laughter” as she talked about her involvement in Craig as well as about some of the challenges she had faced as a working mother making her way through academia.
Returning home to Washington for Marty’s memorial service and the wedding, Ginsburg knew that she could rely on her all-consuming job to help fill the void created by the loss, especially now that she was the leader of the liberal quartet. Her days were highly structured. Often former clerks who came to Washington invited her to join them for dinner. Despite the justices’ often sharp disagreements and independent operating chambers, they could function as a family when challenges arose. They lunched together daily when the Court was in session, discussing not cases or controversial topics but rather museum exhibits, cultural events, or sports. Ginsburg, a ready participant in conversations that involved music and theater, turned silent on sports—just as her former clerk Michael Klarman would have expected. Sotomayor’s unabashed enthusiasm for the Yankees—the Bronx Bombers—afforded a vivid contrast.
Justice Ginsburg before the opera in Santa Fe with her grandson, Paul Spera, and friend Audrey Bastien, 2013.
Members of the Court also celebrated birthdays, though, as Ginsburg wryly observed, many of her colleagues sang “Happy Birthday” off-key. She was especially touched to learn that the justices’ wives, spearheaded by Martha-Ann Alito, had put together a collection of Marty’s favorite recipes (with Jane’s help). Along with photographs and tributes from children and close friends, the volume would be published after the memorial under the apt title Chef Supreme.
No longer battling the intense exhaustion that she had endured during Marty’s last years, Ginsburg stepped up her own social and travel schedule. Nina Totenberg, legal reporter for National Public Radio and a friend since the justice’s ACLU days, observed that without Marty’s outgoing personality to rely upon, Ruth now engaged more in conversation, even when the topic was not the law. Ginsburg’s genuine affection for Obama—and his fondness for his “favorite justice”—enticed her to the White House for a celebration of Hanukkah in December 2011.
One month later, during the Court’s January recess, she flew to Egypt, accompanied by Jane, to consult with her Egyptian counterparts as they began the transition to a constitutional democracy after the fall of Hosni Mubarak. Then on to Tunisia, where the Arab Spring had begun, and finally back home for spring term featuring several criminal justice cases.
True to form, Ginsburg would use her expertise in civil procedure as well as her close attention to facts and context to ensure that the legal rights of criminal defendants were preserved. Lacking representation by veteran Court lawyers, defendants were frequently the victims of police and prosecutorial misconduct that lacked judicial supervision. Such was the plight of John Thompson, who had been wrongly prosecuted in New Orleans and spent fourteen years on death row before the reversal of his conviction. Prosecutors had withheld evidence. After Thompson was stripped by the Supreme Court of the damages he had been awarded, Ginsburg, joined by Breyer, Sotomayor, and Kagan, issued a compelling dissent. That five of her colleagues had been more concerned with protecting municipalities from civil rights suits than protecting the constitutional rights of Thompson and his unfortunate counterparts, she considered to be added cause for vigilance.
The end of the fall term 2012 marked Ginsburg’s twentieth year on the Court. Milestones earlier in her tenure had been commemorated with symposia at which legal scholars highlighted her many contributions to equal protection doctrine, civil procedure, and comparative and international law.
Her distinctive jurisprudence had changed little during her second decade on the high bench. But the Court’s long move to the right, together with Ginsburg’s role as leader of the liberal minority, cast a judge and justice known for her judicial moderation and collegiality into the role of chief dissenter. Those familiar with the new passion, vigor, and authority infusing her dissents in Carhart and Ledbetter wondered if her “inner liberal” had taken over, supplanting her adherence to the “middle way.”
The Ginsburg family following the wedding ceremony of James Ginsburg and Patrice Michaels. Standing, left to right: George Spera, Clara Spera, Paul Spera, and Jane Ginsburg. Seated: Satinder Bedi, Justice Ginsburg, James Ginsburg, Patrice Michaels, and Harjinder Bedi. On the floor: Abigail Ginsburg and Miranda Ginsburg, 2010.
Ginsburg herself would quickly dismiss such speculation, and with good reason. Even as a pioneering liberal litigator calling for dramatic change in law and doctrine, she had approvingly quoted Justice Benjamin Cardozo’s observation that “justice is not to be taken by storm. She is to be wooed by slow advances.” Putting down path markers—“way pavers,” Ginsburg called them—in a way that brings about gradual change in the law has pragmatic benefits as well. “Measured motions,” she had always believed, assure that innovations in the law do not get so far ahead of public opinion that backlash becomes too powerful to contain.
Ginsburg’s views on judging, shaped initially by process theory and honed by her experience on the appellate court, also had not changed. Fidelity to rules governing the litigation process as the surest way of protecting due process rights has remained constant since her days at Harvard Law School. So, too, her understanding of the role of the federal courts as protectors of constitutional rights. When approaching cases that raise issues of racial and gender discrimination or the use of stereotypes to define or restrict any group, she had seldom concealed her own strong views.
Nor had she ever been timid about dissenting if the majority ignored binding precedent, reached an unnecessarily broad result, or failed to accord appropriate respect to another branch of government or lower court. Throughout the Rehnquist years, however, she had approached decisions with caution and care, consolidating her reputation as a judicial moderate eager to promote consensus. Her dissents, like her opinions, had consistently revealed clear reasoning and a marked preference for calm, neutral language devoid of rhetorical flourishes, emotional appeals, or alienating critiques of colleagues’ opinions.
What changed during Ginsburg’s second decade on the Court—apart from its composition—was her own level of frustration with continued conservative dominance. There had not been a definitively liberal majority since the Nixon years. Any hope of influencing Roberts and Alito on equality issues had withered in the 2007 school integration cases, when their adherence to color-blind solutions flew in the face of reality—expanding, not shrinking, de facto segregation. The “strained fury” of Breyer’s twenty-minute dissent in Parents Involved, backed by Stevens’s trenchant comments on Roberts’s rewriting of the historic Brown decision, revealed the profound alienation of the Court’s liberals.
Nor was it just the losses suffered by civil rights plaintiffs that alarmed Ginsburg. It was also the unprecedented loss of access to the courts by ordinary citizens. The class-action suits by consumers that had so effectively revealed the dangers of tobacco and asbestos in the 1990s ended in 2011 with the procedural hurdle erected by the Roberts majority in Wal-Mart v. Dukes. Ginsburg had fought back in another precedent-based dissent. She knew that it was not just the female employees at Walmart (many of them low-income minorities) who were the ultimate losers but also a large segment of the American public. Lacking the resources for sustained litigation against business and employers who they believe had wronged them, ordinary people would no longer have their day in court.
Judicial protection of the people’s liberties had also been set back on First Amendment issues. The Roberts Court had acquired a reputation as a champion of unfettered free speech in Citizens United, when it held that corporations have First Amendment rights. But a closer look at subsequent cases told a different story. In Holder v. Humanitarian Law Project, Roberts required no factual findings as to whether the government’s claims that the human rights group’s activism supported terrorism and required censorship. That the government said so was enough for the majority. As a precedent, the ruling sent a clear signal: “[J]udges must defer, and then defer again, to the government when it seeks to justify bans on speech.” Breyer, Ginsburg, and Sotomayor found that to be a dangerous message to send in an age of intensifying government surveillance, as Breyer’s hefty dissent made clear. In subsequent decisions, prisoners, public employees, and students also found their First Amendment rights curtailed. The majority’s “ham-handed categorical approach,” Stevens (and Ginsburg) objected, made free speech either all (Citizens United) or nothing (Humanitarian Law Project, Beard, Garcetti, and Morse).
Well before she became de facto minority leader, Ginsburg’s patience had worn thin. She was no longer willing to try to piece together another centrist compromise that violated her principles. Nor was she now inclined to cast her objections in the neutral, detached language that had generally characterized her dissents in the Rehnquist years. Gradually, her judicial voice acquired new authority, passion, and edge.
The change was amplified by the frequency of her oral dissents from the bench. Reading a dissent out loud “supplement[s] the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain,” risking “collegiality and decorum,” observes Adam Liptak. During her first decade on the Court, Ginsburg exercised this “nuclear option” only six times. After 2006, the sight of the tiny black-robed justice rising from the bench wearing her “black and grim” dissenting collar and clutching her papers became a familiar sight—thirteen times between 2006 and 2015. At the end of the 2012 term, she actually broke a record for oral disagreement, speaking three times in one day, each time about equal rights. Nor was she the only member of the liberal minority to speak out more. Dissents from the bench were on the rise in the Roberts Court.
Because oral recordings are not available until the following term, the general public must rely on legal reporters and commentators to convey what is happening in the Court and why it matters. In the process, a dissent from the bench becomes amplified and a judicial portrait is painted. Like some of her predecessors, most notably Chief Justices Warren and Rehnquist, Ginsburg maintains good relations with the legal press, counting some of them among her closest friends. Her image became that of a liberal heroine—quite appropriately, as a New York Times tally of individual justices’ voting records confirms.
When Stevens was asked about his own reputation as a liberal, he thought of Brennan and Marshall, who were on the Court when Gerald Ford nominated him in 1975. His own moderate views, he insisted, had not changed. That he now wore a liberal label was a measure of how far the Court had shifted to the right with the nomination of each new chief. Ginsburg could make a similar argument, pointing to the conservative majority. The Roberts Court had too often resisted modest corrections, discounted the Constitution, and diminished the role of the judiciary as the protector of the people’s rights and liberties. Yet there is no denying she derives pleasure from the extensive coverage her more recent dissents have received. That they are also part of her legacy would become abundantly clear in the further honors that awaited.
Yale Law School would observe the completion of Ginsburg’s second decade on the Court in October 2012 with a symposium titled “Equality’s Frontiers.” Among the distinguished legal scholars celebrating her equal protection jurisprudence was Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law. Paying Ginsburg the ultimate compliment at the end of his presentation, he said, “I regard her as the founding father of sex-equality jurisprudence. I leave it to her whether she would prefer to be referred to as a founding mother, founding parent, or simply the founder.” But, he continued, “I will not negotiate about returning to her the words of Chief Justice Marshall about some of the original Founding Fathers: ‘No tribute can be paid to [you] that exceeds [your] merit.’ ” Ginsburg responded with her trademark modesty, paying tribute in turn to her predecessors who had worked for equal rights for women since the 1920s—among them, the Yale alumna Pauli Murray.
The opera singer Plácido Domingo serenades Ginsburg as the two receive honorary degrees from Harvard, May 26, 2011.
As much as Ginsburg appreciated the Yale symposium, it was an event the previous May that she especially treasured. In 1973, after her successful argument in Frontiero, Solicitor General Erwin Griswold, who as dean of Harvard Law School had refused to allow Ginsburg to count her year at Columbia toward her Harvard degree, had apparently prompted the Law School to offer her a Harvard degree. There had been a stipulation: she must return her Columbia degree. When she politely declined, Marty suggested that she hold out for an honorary degree. On May 26, 2011, she received an honorary doctor of law degree from Harvard. Sweetening the occasion, one of the seven individuals receiving the highest award that Harvard could bestow was the world-renowned tenor turned baritone Plácido Domingo. Domingo had sung “Happy Birthday” to the justice on her seventy-fifth birthday. As Ginsburg received her degree, he sang to her again. “Being so close to that great voice,” she recalls, “was like having electric shock run through me.” The photograph of the two of them on the podium, which she titled “Woman in Ecstasy,” graces her chambers.
Life without Marty still had its wonderful moments. There would be more in the future as her legacy continued to be celebrated.