Tuesday, September 1, 2009

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.

16 comments:

Writer X said...

So, "living constitution" means interpret the constitution in any way you see fit. Clever. Then why have one? That's like having a law against stealing but only enforcing it Mondays and Wednesdays.

Thanks, LawHawk. Justice Ginsburg is an interesting lady.

StanH said...

Lawhawk, we know that Ginsburg is a raging liberal. The relationship she has with Scalia always leaves me scratching my head. They enjoy playing Bridge and you know that they talk, about what? I know we are supposed to be adults, and these are “professional” people and there’s a time and a place for everything. Call me paranoid but this a typical Potomac two step, an example of the Machiavellian dog and pony show that politics is, one show for the masses, and another behind closed doors, …peas-n-carrots – thick-as-thieves?

AndrewPrice said...

Writer X, You have seen right through the "living document" garbage that the left doesn't get. If the rules can change whenever you want them to change, then they aren't rules.

Also, they always forget (intentionally) that if the Constitution needs to be changed, there are mechanisms that will allow that. But they know they can't ever get support for that, so they have created this fake "living document" theory to justify making changes that the Constitution does not allow.

AndrewPrice said...

Lawhawk, Spot on as usual. Ginsburg is one of the most liberal justices on the court. But what's interesting, is that because the Republicans did not "Bork" her, she has disappeared quietly into the woodwork.

LawHawkSF said...

WriterX: They don't teach bedrock history in the schools anymore, nor do they teach the purpose of a constitution in the law schools, which have become schools of social justice group therapy. If every lawyer understood the answer to your very fundamental question, we would be in much better shape. If the constitution is just another set of laws subject to the whims and fashions of the day, it ceases to serve the unifying anchor purpose the Founders intended. It's more like "stealing is illegal, but we have discovered a penumbra that previous courts missed which says that the Founders actually meant it cannot be illegal to steal if you think you need to."

LawHawkSF said...

StanH: Actually, it's one of the few signs that civilization still exists in the legal community. Andrew and I could beat each other over the head with genuine glee in the courtroom, but in order for the system to work properly, we leave the courtroom and our personal feelings about the case behind at the end of the day. If it becomes too personal and too all-encompassing, it ceases to become law and becomes politics. The courts, including the Supreme Court, are supposed to be places of law, not ideology and personalities.

LawHawkSF said...

Andrew: She has been such a deleterious force on the court, and I've watched her since before she was on the high court, so I was genuinely amazed how much of what she has done was by stealth. This was a much shorter article than the one on either Kennedy or Stevens, far lesser-known justices. I kept worrying that I had missed something, or that my conservative prejudices were affecting my recitation. And then it hit me. She has kept a low profile most of the time, so the only way for her bio to be as long as those other two, I would have had to list all the cases in which she was merely a liberal, activist vote. Her clear opinions (majority or dissent) are woefully few. Everyone knows she's a very liberal, feminist justice. But her name (rather than just her fingerprint) appears on an amazingly small number of opinions as the author, most of which I cited in the article.

HamiltonsGhost said...

As much as I can admire Ginsburg's intelligence and hard work, I must also object to the use of those two qualities to undermine the whole purpose of the Constitution. The people who were equally intelligent and hard-working who put the document together didn't do it as a self-aggrandizing exercise in intellectual gymnastics. They did it to form a solid, immovable foundation for government which people could count on as being their strong fortress of law. And they purposely made it difficult to alter that foundation so it would not be modified based on fad, fashion, and temporary majorities. Least of all did they intend it to be modified by judges who change its basic nature by treating it as an outhouse instead of a foundation.

LawHawkSF said...

HamiltonsGhost: Intelligence alone can never be a substitute for a sense of proportion, real-world realities, adherence to common decency, ethics, and morality. The Nazi hierarchy (Hitler excepted) was the most intelligent and educated government in history up to that time. But without moral constraints, that intelligence led to the largest slaughter of human beings in all of history.

Pahude said...

LawHawk: I suggest you read Nightmare Years, 1930-1940 by William L. Shirer. It may very well change your opinion on the intelligence of the Nazi hierarchy.

LawHawkSF said...

Pahude: I have read it (as part of his three volume Twentieth Century Journey), along with Rise and Fall of the Third Reich and Berlin Diary (after which my San Francisco Diary is loosely fashioned). More PhDs in his government than any other in Europe. Hitler himself was intelligent, but not well-educated, yet he surrounded himself with "intellectuals" in order to give an additional luster to his own insane ideology. Their intelligence and education were quickly warped and turned to the purposes of national socialism. And they were smart enough and educated enough to hire not-so-bright thugs to do their dirty work.

StanH said...
This comment has been removed by the author.
StanH said...

Lawhawk: The very few times that I have been in court, and my buddy represents me. He spends his time like a social butterfly yukking it up with opposing counsel, and other attorneys in general. I understand the reason, like you said one time, “an especially chatty attorney can spill the beans.” But, the Supreme Court level politics are involved unfortunately, and I believe only one side operates in good faith the right. Ginsburg has an agenda that is opposed to interpreting The Constitution, but re-making The Constitution as a living document. So when Scalia entertains the Ginsburgs comity begins to co-opt right and wrong, and the premise of liberalism has a tacit acceptance Sorry for my cynicism, but I want our guys to become zealots for America, and marginalize liberalism to the 18% of the population that it actually represents.

LawHawkSF said...

StanH: You might be surprised how little law we talk about once we're out of the courtroom and socializing. Mostly, it's crowing about a recent victory, or damning a judge for disagreeing with us. The rest of the conversation usually turns elsewhere. Ginsburg and Souter both knew how to play Stevens. Ginsburg knows better than to try with Scalia. Again, I take your point. But we have two political branches, and I really prefer that our judicial branch stay away from politics. By injecting their unbending and bizarre political beliefs into the courtroom, Ginsburg (and no doubt Sotomayor) continue to make our point for us. If we resort to the same tactics in court, we're no better than they are, and we start using the Constitution as a football. I'm much more worried about this palsy-walsy spirit of bipartisanship that has overwhelmed our political branches, where the fighting is actually supposed to take place.

Tennessee Jed said...

Hawk, another fine piece on one of the brethren (or is it sisteran?) I cannot fault her credentials or her work ethic, only that she represents the exact opposite of what I think an appellate judge should be. Reading your piece raised the following question:

Since Ginsburg favored the newly created right of privacy, how would she rule on an appeal of the unionist legislation to do away with secret ballot when voting for or against unionization?

LawHawkSF said...

Tennessee: Consistency is necessary only in her political views, not her judicial views. Since she is pro-union, aka "collective" bargaining, she could easily find that the vote itself is a group right, not an individual right protected by the right of privacy. And she doesn't even have to be inconsistent. Since she supports abortion, and "card check" is an abortion of sorts, she can be in favor of it.

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