Thursday, May 24, 2018

The Notorious R.B.G.

Documentary produced & directed by
Betsy West and Julie Cohen
Released May 4, 2018

The loving and excellent documentary of Ruth Bader Ginsburg, currently playing in theaters, is balm for our bleak political times. She is an American success story entirely beyond politics. You can see it in the admiration she garnered at her confirmation hearing to the Supreme Court in the summer of 1993. Republican Senator Orrin Hatch was smitten: he voted to confirm with evident admiration despite her strongly articulated support for a woman's right to choose an abortion. "Every abortion kills a living human being," is Hatch's view. Nevertheless, he has remained a supporter of Ginsburg right up to the present. He came to her aid after R.B.G. made some ill-advised and intemperate comments about candidate and then President Elect Trump. Her friendship with Associate Justice Antonin Scalia was no accident. They both loved Opera, but more importantly, they both loved the law. Their friendship and love of the law was beyond politics.

We should all take heed.

Ginsburg's life traces the progress of the women's movement. She attended Harvard law school as one of just nine women in a class of 500. When the Dean of the school hosted the women for a dinner he suggested that they should not be there: "how do you justify taking a spot from a qualified man?"  As one of the top 25 students in her class after completing her freshmen year, she wrote for the Harvard Law Review. Yet when she graduated from law school no major New York law  firm would hire her. "We don't hire women," said a hiring partner to male colleagues who had recommended her.

So Ginsburg gravitated to academia, first at Rutgers, then at Columbia law school, where she became the first female professor to gain tenure. In the 1970's she headed the American Civil Liberties Union's Women's Rights Project. She was appointed as the ACLU's general counsel in 1973.  She wrote the brief in Reed v. Reed (1971) wherein the Supreme Court extended the protections of the 14th Amendment of the U.S. Constitution to women for the first time. Between 1973 and 1978 she argued six gender discrimination cases in the U.S. Supreme Court, winning five, and established the equal protection clause as a sharp tool for attacking laws making arbitrary distinctions based on gender. The film does a good job describing and illustrating a number of these cases: Frontiero v. Richardson (1973)(gender allowance in military), Weinberger v. Weisenfeld (1975)(survivor's benefits under the Social Security Act), Craig v. Boren (1976)(disparate drinking age based on gender--establishing intermediate scrutiny for review of gender based cases), and Duren v. Missouri (1979)(exempting women from jury service). Ginsburg chose her cases well: she was methodical, strategic, and steady. It's "like knitting a sweater," noted one observer. The documentary gives us an accurate and inspiring depiction of how the law can be used to achieve social change.

President Jimmy Carter nominated Ginsburg to the U.S. Court of Appeals, D.C. Circuit on April 14, 1980, where she gained a reputation as a careful and moderate jurist, often finding common ground with her conservative colleagues, including Robert Bork and Antonin Scalia.* Her preparatory work in winning five cases championing gender equality before the court, enabled her to bring along a majority of the court in U.S. v. Virginia (1996)(7-1) to rule that the male only admissions policy at the prestigious Virginia Military Academy was unconstitutional. [Ted Olson of Obergefell fame argued on the losing side for the State of Virginia]

After the departure of Justice Sandra Day O'Connor (she retired to take care of her sick husband in 2006) the political balance of the court moved markedly to the right with the arrival of Justice Alito, and the subsequent appointment of Justice Gorsuch instead of Merrick Garland to replace Scalia. As a result Ginsburg has found herself more often in the minority in politically charged cases. Her role has shifted from carefully "knitting a sweater" to battling vigorously to prevent the sweater from unraveling. It is her pointed and forceful dissents in recent years that have made her into a liberal icon.

In Bush v. Gore (2000) she calmly and carefully pointed out the unprincipled nature of the majority's decision in putting an end to the election of 2000. "The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law," she said. She dissented in Ledbetter v. Goodyear (2007)(statute of limitations on equal pay litigation under Title VII of Civil Rights Act of 1964), the case that became a cause celebre during the 2008 Obama campaign. "[T]he Court," she said, "has strayed (far) from interpretation of Title VII with fidelity to the Act’s core purpose." She strongly dissented from the Court's ruling upholding the Partial Birth Abortion Ban Act in Gonzalez v. Carhart (2007). "Today’s decision is alarming," she opened.  "It ... tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. It blurs the line ... between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health." She--of course, say her admirers--joined the vigorous dissent by Justice Stevens in Citizens United (2010). Her language became stronger in her dissent in Burwell v. Hobby Lobby (2014)(holding that Hobby Lobby stores could opt out of the Affordable Care Act's requirement to provide health insurance plans with coverage for FDA approved contraceptive methods because of the owner's religious beliefs). Read this:
"In a decision of startling breadth, the Court holds that commercial enterprises ... can opt out of any law ... they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab. The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress... dictated the extraordinary religion-based exemptions today’s decision endorses." (Internal references and citation omitted)
But it was Shelby County v. Holder (2013) that launched a thousand ships of "notorious R.B.G." memes. Section 5 of the Voting Rights Act of 1965 subjected (mostly southern) states to submit to federal oversight in order to make any election law changes. The court upheld this law in 1966 as an extraordinary remedy to address historic discrimination in voting based on race. Fifty years later, the Court in an opinion by Chief Justice Roberts said "this seems like enough." Ginsburg (joined by Breyer, Sotomayor, and Kagen) would have none of it:
"In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation. ...  But the Court today terminates the remedy that proved to be best suited to block that discrimination." 
To emphasize her disagreement, Ginsburg read her dissent from the bench. "It's the equivalent of shaming your spouse in front of dinner guests," says Jennifer Senior in the New York Times.  "Notorious R.B.G." is a play on Notorious B.I.G, the rapper who was murdered in 1997. Ginsburg embraces it. She sends T-shirts to her friends. "We have things in common: we were both born in Brooklyn . . . ," she has quipped.

Ginsburg the pugilist
published by Pekosa Peligrosa 3/8/18
But while her role as leader of the resistance on the Supreme Court has made her a liberal icon, it's her personal story that makes her a universally inspiring figure. A month after graduating she married Martin Ginsburg and followed him to Oklahoma where he was stationed with the Army Reserve and gave birth to a daughter there in 1955. The couple returned to Cambridge where Martin continued with Harvard law and she started Harvard law school. Martin developed testicular cancer but survived with two operations and heavy doses of radiation therapy while finishing law school.

For Ginsburg to finish at the top of her class in law school, with a new born and a sick husband at home. . ., that is not an every day thing.

The film includes family footage and photographs. We see Ginsburg in her high school photo, we see her and her husband as a young couple. There are interviews with colleagues and her children. But at the heart of this film, what shines through is someone with uncommon drive, dedication, devotion to the law, and love for the law. That transcends political orientation. It's what Orrin Hatch saw.

I imagine that when her current colleagues on the Court watch this film, all of them, they will see a little something of themselves reflected there. I trust Scalia would have too.

Undated photo from film
"Every day when we meet in conference," says Ginsburg, "we start with shaking hands; it keeps things collegial." Stay collegial and don't lose your cool. It's good advice for all of us.


* Scalia was approved unanimously (98-0) to sit on the Supreme Court in 1986. Reagan's nomination of Robert Bork to serve on the Supreme Court, and the Democratic Senate's politicized hearings and rejection of his nomination in October 1987, arguably kicked off the the partisan wars over Supreme Court appointments. The highly contentious Thomas nomination followed in 1991. Thomas was narrowly approved 52-48 following the Anita Hill hearings--decades ahead of the #metoo moment. Ginsburg ('93) was approved with just three dissenting votes; Stephen Breyer ('94) drew 9 dissenting votes; John Roberts ('05) drew 22 dissents; Samuel Alito ('06) had 42 dissenting votes; Sonia Sotomayor ('09) had 31 dissenting votes; Elena Kagen ('10) drew 37 dissents; and Neil Gorsuch ('17) drew 45 dissents.

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