Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Ruth Joan Bader Ginsburg was born on March 15, 1933 in Brooklyn. She is the second daughter of Nathan and Celia (Amster) Ginsburg. She was the younger of two children, both daughters. She was devoutly religious, and took advantage of the strong Jewish educational opportunities available in New York City. She read voraciously, and always did well in school, graduating from James Madison High School.

The future justice went on to Cornell University in Ithaca, New York. She received her bachelors degree in 1954, and then went on to Harvard Law School. Prior to her entry into law school, she married Martin Ginsburg. After they graduated from law school, he went on to become a prominent tax attorney and a professor of law at Georgetown Law School. They have two children, a daughter born in 1955 and a son born in 1965. When her husband's employment took him to New York City, she moved to Columbia Law School where, as at Harvard, she was on the law review. She received her bachelor of laws from Columbia in 1959, and was tied for first in her class.

While in law school, she became actively involved in early feminist causes. She continued to belong to and advocate feminist causes right up to her first appointment to the bench. Thereafter she broke her official bonds with feminist organizations, but her rulings consistently demonstrated her commitment to feminist ideals. Upon graduation from law school, she began a clerkship for Judge Edmund L. Palmieri of the U.S. District Court in New York. Although highly recommended by the dean of Harvard Law School, she was rejected in 1960 for a clerkship for Supreme Court Justice Felix Frankfurter. After completing her position as a research associate and director of the Columbia Law School Project on International Procedure, she became a professor of law at Rutgers, where she taught from 1964 to 1972.

In keeping with her feminist views, she co-founded the Women's Rights Law Reporter, the first American law journal to deal solely with women's rights. She became the first tenured woman on the Rutgers Law faculty, and co-authored the first law school textbook on sex discrimination. In 1977 she became a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University. Although she never practiced trial law, she became the chief litigator of the ACLU's women's rights project, and argued cases before the Supreme Court where she developed a reputation as a skilled oral advocate on appeals.

She continued in her capacity as a senior ACLU attorney through 1978. That year, she challenged laws and practices in the state of Missouri which made women's service on juries optional (Duren v. Missouri). She saw this as demeaning to women, and argued that it sent the message that women's service was unnecessary for important government functions. Future Chief Justice, and then Associate Justice William Rehnquist asked Ginsburg "you won't settle for putting Susan B. Anthony on the new dollar bill, then?" Realizing it was not meant as a serious question, Ginsburg did not answer.

Ginsburg was appointed to the U. S. Court of Appeals for the District of Columbia Circuit in 1980 by Jimmy Carter where she remained through the next thirteen years. In 1993, President Bill Clinton nominated her for a seat on the U. S. Supreme Court on the recommendation of his Attorney General Janet Reno. At the confirmation hearings, Ginsburg refused to answer most of the questions asked of her regarding her personal views on issues which had been addressed by the Supreme Court. She also refused to answer hypothetical questions posed to her on a multitude of issues which might come before the Court in the future. Legal scholars of all stripes largely agree with her right, and even her possible obligation, to refuse to answer those questions. However, many conservative scholars have pointedly asked why the same courtesy was not afforded to later Republican appointments Samuel Alito and John Roberts. The final Senate vote was 96 to 3.

Ginsburg's appointment changed the balance of the court. She replaced Justice Byron "Whizzer" White. White had been appointed by John F. Kennedy, but he was not the type of justice who fits today's definition of a good Democrat. In labor cases, he tended to side with unions, but he was otherwise very much a traditionalist who was unwilling to continue the expansion of the judicial empire. Clinton could now count on a court which would lean toward activism, feminism, and enlargement of the powers of the federal government over the states. During the hearings, one of the few issues Ginsburg had declared strongly on was her support for the judicial newly-created right of privacy (in Griswold v. Connecticut), and more importantly, its expansion into the right of abortion (newly judicially-protected by Roe v. Wade). Clinton could now put on his dog and pony show about making abortion "safe and rare" without worrying that the Court would return the decisions on abortion to the states.

Despite being one of the best-known justices, her record on the court must be discerned more by her votes than her fairly rare written opinions. If the case expanded federal authority over the states, blurred the lines between legislation and judicial opinion, leaned toward creating new and previously undiscovered constitutional rights, preferred "victim" group rights over individual rights, or broke with precedent to support the Democratic Party's cause du jour, you'll find Justice Ginsburg's fingerprints on it.

On environmental issues, she has always come down on the side of the radical ecologists and litigious environmentalists, as in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (her majority opinion found that individual plaintiffs had the right to sue a company for past acts which were perfectly legal at the time, but resulted in present residual pollution of a river). Always willing to support an out-of-control court seizing power from the people and the legislatures, she wrote the dissent in Bush v. Gore, declaring that in the interest of "fairness" the Florida Court had the obligation to change legislative statutes, case law and precedent in order to guarantee the continued counting of votes until the "right" vote was tallied. Most recently, she searched, and searched, and searched, and simply couldn't find any kind of discrimination against whites in the case of Ricci v. DeStefano. She wrote the dissenting opinion which would have upheld the ruling of her new powder-room Supreme Court ally, Sonia Sotomayor.

The opinion most loathsome to conservatives, traditionalists and those who can get past the weasel-word "choice" was Stenberg v. Carhart, an opinion in which Ginsburg both joined and strongly advocated. The case struck down Nebraska's statute forbidding partial-birth abortion. Ginsburg uses a kind of twisted logic to support her activism on abortion. She laments that it had become "necessary" for the court to act in Roe v. Wade since it "terminated a nascent, democratic movement to liberalize abortion laws which might have built a more durable consensus in support of abortion rights. " I guess that means she prefers death in small doses. Again, in 2009, in a New York Times interview, she continues to ignore any discussion of a baby in the womb as having any existence as a human being. She continues to speak in terms of women's rights, and ignores the horrific consequences of late term abortions. "The basic thing is that the government has no business making that choice for a woman." In her mind, and in her jurisprudence, there is only one human life involved in an abortion, and the baby isn't it.

To her credit, when she was asked by liberal-leaning MSM reporters about Roberts's and Alito's avoidance of answering many questions posed by the Democrat attack dogs Leahy, Kennedy and Feinstein, she supported the judges' right to do so and would not criticize them for maintaining judicial neutrality by not announcing how they might vote on a future issue before the Supreme Court. To her discredit, Ginsburg is lavish is her praise for using foreign law, politics and norms to shape American constitutional law. She is very much a booster for the "living Constitution."

Despite many bouts with aggressive cancer, surgery, and chemotherapy, Ginsburg has returned to the Court, each time a little more frail, but always alert and ready. Nobody can deny her work ethic. And she has that unique ability not to take what happens in the confines of the Supreme Court personally. Her best friend on the Court is Justice Scalia, who has on more than one occasion disagreed with Ginsburg in extremely strong terms. Their judicial and political views couldn't be more different, but once they step outside the marble halls, they enjoy lunches and dinners together in complete camaraderie.

It is considered a relatively safe bet that Ginsburg will be the next justice to retire. But she has personally shown no indications that she will do so. She may surprise everyone by sticking around. Given the current administration's political and judicial views, it would be hard to find a justice more liberal and more activist to replace her, but it would also be difficult to find one as intelligent and hard-working. Should she be the next to leave, the makeup of the court would be unlikely to change much, although another strong liberal with a weak mind might make the job of the conservatives and strict constitutionalists on the court a bit easier.