Ruth Bader Ginsburg died at the age of 87 on Friday, September 25th. The shockwave this sent through the political sphere was immediate and cannot be overstated. Justice Ginsburg had become an icon in the last decade. As the leading liberal voice on the Supreme Court she had, in many people’s minds, become the leading protector of women’s rights, the rights of People of Color, and the LGBTQ community. In her many opinions and dissents she had been the voice of the marginalized and the long-oppressed and stood up to an increasingly powerful conservative movement that was etching away at voting rights, women’s rights, and was trying to stop the march of gay and trans rights that was sweeping the nation. She had been meme-fied and turned into tattoos and comics. She was lovingly known as the Notorious RBG, and in many people’s minds this petite, octogenarian from Brooklyn was our last, and maybe best protection against encroaching fascism. Are these sentiments hyperbolic? It’s hard to say in this day and time of political extremism what is reasonable and what isn’t. But what we CAN say is the Ruth Bader Ginsburg had a following unlike any Supreme Court Justice ever before. RBG had become a Justice and a rock star.
Her passing doesn’t just mean that her adoring fans are in mourning, however. The political ramifications of this are huge. With the election less than 50 days away people from all ends of the political spectrum are scrambling. Will Trump and the GOP try to force a nomination and confirmation before the election? Can Democrats do anything to stop him? Would it actually serve Trump’s electoral purposes to put off a confirmation until AFTER the election? We’ve basically been in the midst of a constitutional crisis for about two years, now. Will this be what pushes us over the edge into chaos?
We could talk forever about the impact of RBG’s death. It’s impossible to say just how bad things are going to get just yet. But today I’d like to talk about the impact of her life. There will be lots of tributes and histories in the days to come, so I won’t spend a ton of time on biography. But I want to talk about how RBG is different from many other Justices because she would have been a hero had she never been ON the Supreme Court. And I want to give an example of the way she advocated for those who needed an advocate by looking at one of her most famous opinions – and not even a winning opinion, but one of those blistering dissents she became so famous for.
Now, RBG wasn’t perfect. She was flawed. Sometimes her adoring fans forget that she made some questionable decisions and had some problematic opinions. For example, she called Colin Kaepernick’s protest “dumb and disrespectful.” She ruled against paying Amazon workers overtime in Integrity Staffing Solutions v. Busk. She abstained on issues like solitary confinement, which many consider cruel and unusual punishment. The truth is the RBG is, yes, a fierce advocate for civil rights. But in many ways also just a left-of-center jurist and not the liberal firebrand her supporters have made her out to be. But on a court that skews as conservative as this one does, that makes her a notable figure and somebody that the left looks to for leadership, and yes, some heroism.
But RBG’s heroism started well-before she was on the Supreme Court. In some ways, she is much like Thurgood Marshall in that she made as much difference as a lawyer as she did as a Justice and history will remember her for her work before she was ever on the Supreme Court as much as it will for her fiery opinions and dissents. The lives of American women today are radically different because of Ruth Bader Ginsburg.
In the 1970s Ginsburg basically re-defined the 14th Amendment. The 14th Amendment includes the “equal protection” clause which mandates that American citizens are equally protected under the law. It took a long time for that to include Black Americans, People of Color, and in the 1970s, Ruth Bade Ginsburg began the crusade to include women in that category as well. In 1972 she founded the Women’s Rights Project at the ACLU. A year later she became the general counsel. Over the next three years the argue six gender discrimination cases in front of the all-male Supreme Court. She won five of them. She argued that gender discrimination was harmful to both men and women, a strategy that spoke to the Court in ways previous arguments had not.
Her first case, Reed v. Reed, literally changed our understanding of the constitution. Up until that case women had not been included under the Equal Protection Clause. Ginsburg wrote the brief for that case and won in 1971. It was a major moment in the burgeoning women’s movement. Women could suddenly claim to be protected by the same laws men were.
Ruth Bader Ginsburg may not be mentioned in the same breath as names like Gloria Steinem and Betty Friedan when people talk about the women’s movement, but the truth is she was just as vital, if not more so, to the progress women made in the last part of the 20th century. Very few women did more for women’s rights than Ruth Bader Ginsburg. And that was all before Jimmy Carter put her on the U.S. Court of Appeals in 1980.
Ginsburg was appointed to the Supreme Court by Bill Clinton in 1993. Early in her career she was seen as a slightly left-of-center jurist but as the Court swung right her position became more relative and, as others retired, she ultimately became the leader of the left wing of the Court. In that time she has penned a number of famous opinions and dissents.
One of her most famous opinions was Unites States v. Virginia which forced the Virginia Military Institute to allow women. The school had had a male-only admissions policy for literally over 150 years and in 1996 Ginsburg penned the opinion that opened wide the doors.
Another less known, but important opinion was Friends of the Earth v. Laidlaw Environmental Services (2000): By a 7-2 vote, gave South Carolina residents standing to seek penalties for industrial pollution without having to prove injury, and even though the factory in question had closed. .
Ginsburg was also instrumental in Timbs v. Indiana (2019): In this the court ruled that states cannot impose excessive fees, fines, and forfeitures as criminal penalties. The decision made clear that the Eighth Amendment’s prohibition against excessive fines applies to states and localities as well as the federal government.
Her dissents were no less noteworthy. In fact, in many ways her dissents have made her more of a pop-culture sensation, spawning everything from children’s books to board games (which my son loves to play and consistently beats me at).
In Bush v. Gore (2000): Ginsburg and her three liberal colleagues each dissented from the court’s 5-4 decision halting the presidential recount ordered by Florida’s Supreme Court. This decision handed the presidential election to George Bush, even though Al Gore won the popular vote. The majority ruled that no better method of counting votes could be established within the necessary timetable.
In Ledbetter v. Goodyear Tire & Rubber Co. (2007): Ginsburg wrote the dissent in the 5-4 case, which denied Lilly Ledbetter the right to sue her employer for gender-based pay discrimination because of the length of time that had passed since the violation. This led Congress to ultimately write a law directly addressing the issue that Obama signed in 2009.
One of her most famous dissents was that of Shelby County v. Holder. She criticized Chief Justice John Roberts’ 5-4 ruling that struck down a key section of the Voting Rights Act, freeing mostly Southern states from having to clear voting changes with the federal government. This decision basically gutted the Voting Rights Act and was part of a long, sustained effort of voter suppression in the United States. Ginsburg wrote that, “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.”
But the dissent we’re going to focus on today is the Hobby Lobby dissent.
According to Oyez.com, The Green family owns and operates Hobby Lobby Stores, Inc., a national arts and crafts chain with over 500 stores and over 13,000 employees. The Green family has organized the business around the principles of the Christian faith and has explicitly expressed the desire to run the company according to Biblical precepts (no word on how corporate profiteering is a Biblical precept), but one which they do adhere to is the belief that the use of contraception is immoral. Under the Affordable Care Act (ACA), employment-based group health care plans must provide certain types of preventative care, such as FDA-approved contraceptive methods. While there are exemptions available for religious employers and non-profit religious institutions, there are no exemptions available for for-profit institutions such as Hobby Lobby Stores, Inc. On September 12, 2012, the Greens, as representatives of Hobby Lobby Stores, Inc., sued Kathleen Sebelius, the Secretary of the Department of Health and Human Services, and challenged the contraception requirement. The plaintiffs argued that the requirement that the employment-based group health care plan cover contraception violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA).
The question was: Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees’ health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners?
The Court decided: Yes. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government’s interests. In fact, a less restrictive method exists in the form of the Department of Health and Human Services’ exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby. Additionally, the Court held that this ruling only applies to the contraceptive mandate in question rather than to all possible objections to the Affordable Care Act on religious grounds, as the principal dissent fears.
Ginsburg’s dissent was resounding.
According to Oyez.com, she argued that the majority’s decision was precluded by the Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith in which the Court held that there is no violation of the freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. Additionally, judicial precedent states that religious beliefs or observances must not impinge on the rights of third parties, as the sought-after exemption would do to women seeking contraception in this case. Justice Ginsburg also wrote that the majority opinion misconstrued the Religious Freedom Restoration Act (RFRA) as a bold legislative statement with sweeping consequences. Because for-profit corporations cannot be considered religious entities, the burden the respondents claim is not substantial, and the government has shown a sufficiently compelling interest, Justice Ginsburg argued that the contraception mandate does not violate the RFRA.
Basically, she argued that the Court’s opinion was far too broad. She warned that the Court’s contention that this decision was just about women’s birth control was misguided. She noted that previous cases had observed that the ability of women to participate equally in the economic and social life of America depended on their ability to control their reproductive lives. So any restriction on access to birth control was an infringement on women’s ability to be fully citizens.
She noted that accommodations to religious beliefs based on the Free Exercise Clause were not supposed to impinge on third parties, which this obviously did. “The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employer’s beliefs access to contraceptive coverage that the ACA would otherwise secure.” So Hobby Lobby had no Free Exercise claim. So they had to rely solely on the RFRA.
But the problem is, Hobby Lobby is a corporation, not a person. She notes, “As Chief Justice Marshall observed nearly two centuries ago, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’”
“Religious organizations exist to foster to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations…The distinctions between a community made up of believers in the same religion and once embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
She argues that, “The Court notes that for-profit corporation may support charitable causes and use their funds for religious ends, and therefor questions the distinction between such corporations and religious nonprofit organizations…Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill.”
The Hobby Lobby decision was wildly controversial and created an uproar in public discourse. Ginsburg’s dissent is significant because it predicted the ways the opinion would be used to continue to protect discriminatory behavior by businesses. And it turned out to be correct.
The New Yorker noted that, “A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.” They continued, “One such matter is Perez v. Paragon Contractors, a case that arose out of a Department of Labor investigation into the use of child labor by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints. (The F.L.D.S. church is an exiled offshoot of the Mormon Church.) In the case, Vernon Steed, a leader of the F.L.D.S. church, refused to answer questions by federal investigators, asserting that he made a religious vow not to discuss church matters. Applying Hobby Lobby, David Sam, a district-court judge in Utah, agreed with Steed, holding that his testimony would amount to a “substantial burden” on his religious beliefs—a standard used in Hobby Lobby—and excused him from testifying. The judge, also echoing Hobby Lobby, said that he needed only to determine that Steed’s views were “sincere” in order to uphold his claim. Judge Sam further noted that the government had failed to prove that demanding Steed’s testimony was not, in the words of the R.F.R.A., “the least restrictive means of furthering that compelling governmental interest.” That burden seems increasingly difficult for the government to meet.” The New Yorker also observes that, “Some religious universities are relying on Hobby Lobby to argue that they must be excused from bargaining with labor unions.* *Hobby Lobby is a large, but family-controlled, company; now other companies, with broader ownership groups, are claiming the right to impose their religious beliefs on their employees. What about minimum-wage laws that eat into the coffers of religious organizations, or just religious businessmen? What about religious individuals who say that they have sincere objections to conducting business relationships with gay people or immigrants? Will they be excused from honoring the nation’s anti-discrimination laws? All these issues are now unresolved.”*
This trend continued in 2016 when U.S. District Judge Sean F. Cox of Detroit ruled that a local funeral home was well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.
This dissent also continues Ginsburg’s long history of fighting for women’s rights in the legal arena. Ginsburg went to law school in the 1950s and even then, was a trailblazer. Starting in the 1970s she was changing the world for American women. The Hobby Lobby dissent shows that she was still fighting that fight well into the 21st century. It is indicative of a career of fighting for American women that spanned five decades.
Ginsburg isn’t known for being an Originalist or a Textualist or any particular doctrinaire kind of interpreter of the constitution. She is known for believing that the Constitution should live and breathe – it should apply to the world as we know it today. The law should evolve with the people. It doesn’t do us any good to try and understand what the law meant in 1800 and try to follow that because it isn’t 1800 anymore. Those words literally don’t mean the same thing as they do now. She believed in modern law for modern times. Because of that she is not known for her specific means of interpreting the Constitution the way Scalia fashioned himself and the way Thomas approaches the law, but she will be remembered as an advocate. She believed the law should protect and speak for the people, not the elites who wrote it years ago.
The best of us can make mistakes. RBG certainly did. And it probably doesn’t help us to engage in a lot of hero-worship that erases our concerns. But if you believe in progress then Ruth Bader Ginsburg was admirable. She was an agent of change. And that counts for a lot.
*In the recording of this podcast these quotes are attributed to the The Atlantic. Here they are correctly linked to The New Yorker.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.