The late Justice Ruth Bader Ginsburg was lauded by former clerks and colleagues at a memorial ceremony held at the Supreme Court on Friday – an institution she’d scarcely recognize if she were still on the bench.
During the special session of the court, delayed because of Covid-19, Chief Justice John Roberts pointed to Ginsburg’s dedication to equality and said she “changed our country profoundly for the better.”
Attorney General Merrick Garland said her opinions were “concise and elegant.”
Solicitor General Elizabeth Prelogar, a former clerk, called the justice’s work the “stuff of legend.” (Prelogar also revealed Ginsburg’s passion for chocolate fondue.)
But as the legal luminaries mingled in the Great Hall outside the marble-lined chamber, little was said about how much the court has changed in the 130 weeks since Ginsburg’s passing.
Fresh on the minds of many is the unprecedented leak last May of a draft opinion overturning Roe v. Wade, a disclosure the court described as a “grave assault on the judicial process.”
In addition, however, the current conservative majority, including Ginsburg’s replacement, Justice Amy Coney Barrett, is working expeditiously to reverse much of what Ginsburg stood for in areas such as reproductive health, voting rights, affirmative action, administrative law and religious liberty.
In the past few months, the court has seen its approval ratings plummet amid claims that it has become irreparably political. Even the relationships between the justices, while cordial, have frayed in public over debates concerning the court’s legitimacy.
As conservatives praise the court’s new season, others mourn the dismantling of Ginsburg’s life work.
“We are in the midst of a constitutional revolution, and the praise being lavished on Ruth Bader Ginsburg today, should not cause us to lose sight of that fact,” said Neil S. Seigel, a professor at Duke University and former Ginsburg clerk.
Lara Bazelon, a law professor at the University of San Francisco School of Law, put it more forcefully in an interview with CNN: “The current court is taking a wrecking ball to her legacy to smash it to smithereens.”
Ginsburg died at 87 years old on September 18, 2020, having spent some 40 years as a federal judge – 27 on the high court. She worked until the end, even dialing into oral arguments from her hospital bed in Baltimore in May 2020 to chastise a lawyer for the Trump administration. The case at hand concerned a religion-based challenge to the Affordable Care Act’s requirement that employer-provided health insurance plans cover birth control as a preventive service.
“You have tossed entirely to the wind what Congress thought was essential, that is that women be provided these services with no hassles, no cost to them,” Ginsburg said.
After her death – less than seven weeks before Election Day – then-President Donald Trump praised her. “She was an amazing woman whether you agree or not she was an amazing woman who led an amazing life,” he said, while as expected, moving with dispatch to push through the nomination of a candidate believed to be Ginsburg’s ideological opposite in many areas: Justice Amy Coney Barrett .
The shift from Ginsburg to Barrett is akin to 1991 when Justice Thurgood Marshall, a legend of the civil rights movement who often cast his votes with the liberals on the bench, was replaced with Justice Clarence Thomas, who has become a hero of the conservative right.
The philosophical differences between the two jurists was almost immediately evident in disputes over the religious liberty implications of state Covid restrictions.
When Ginsburg was still alive, the court ruled in favor of the states with Roberts serving as the swing vote. But after Barrett’s confirmation, the houses of worship won.
Barrett – a former clerk to Ginsburg’s friend, the late Justice Antonin Scalia – has also embraced the constitutional theory of originalism, a judicial philosophy championed by Scalia. Under the doctrine, the Constitution should be interpreted based on its original public reading.
Just last term the court divided along familiar ideological lines in several cases and Barrett sided with the majority, cementing the court’s conservative turn.
Barrett’s presence also means that Roberts no longer controls the court, as there are five votes to his right on some of the most divisive issues of the day.
“He is no longer empowered to moderate the very conservative direction in which the court’s other conservatives are pushing the institution,” Siegel said.
The biggest blow for liberals last term came in Dobbs v. Jackson Women’s Health Organization, an opinion penned by Justice Samuel Alito that reversed Roe – a decision that had been on the books during Ginsburg’s entire tenure.
While she enjoyed a cordial relationship for the most part with her colleagues, Siegel and Bazelon said she would have been surprised by specific references Alito made to an article she wrote in 1992 as a lower court judge.
On the 3rd page of his opinion Alito argued that when Roe was decided it was such a broad decision that it “effectively struck down the abortion laws of every single state.” He went on to say that it has “embittered our political culture for a half century.” After that sentiment he cited Ginsburg’s article in a footnote, where she wrote that the sweep of the decision had “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.”
Some believe Alito included the quotation to point out that Ginsburg, along with others, felt like the court may have moved too fast too soon in the opinion. But others question his use of the citation, especially because Ginsburg never questioned the result of the decision, only its reasoning in certain sections.
“Alito’s citation is both cynical and misleading, implying that Justice Ginsburg disapproved of the Roe holding,” Bazelon said.
That couldn’t be “farther from the truth,” she said, pointing out that Ginsburg’s disagreement was that the reasoning should have “honed in more precisely on the women’s equality dimension.” She noted that Ginsburg always agreed with the result of the opinion.
In the last years of her life Ginsburg was asked what would happen if the court were to ever overturn Roe and she said that it would have a particularly harsh impact on women who did not have the means to travel across state lines to obtain the procedure.
Those words were echoed in the joint dissent last term filed by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in Dobbs. “Above all others, women lacking financial resources will suffer from today’s decision,” they wrote.
On Friday, Breyer, now retired, sat in the front row, next to retired Justice Anthony Kennedy. Kennedy was replaced in 2018 by Justice Brett Kavanaugh, who also voted to overturn Roe.
During her final term, Ginsburg may have known Roe was in jeopardy. There were, after all, likely five members skeptical of the opinion. But she may have felt that Roberts could be persuaded to stop short of overturning precedent out of respect for the stability of the law.
The very fact that she thought Roe could be in danger, was a signal that Ginsburg saw changes afoot before her passing. She often lamented the politicization of the court that she thought could be traced partly to the confirmation process. She noted that in 1993 when she was nominated by President Bill Clinton she was confirmed by a vote of 93-3 even though she had served as a lawyer for the liberal ACLU. In modern day confirmation hearings, that vote would have been much closer.
Last term, in a rash of 6-3 decisions the fissures were evident.
After dodging Second Amendment cases for years, for example, the court crafted a 6-3 opinion marking the widest expansion of gun rights in a decade.
Kagan dissented when a 6-3 court curbed the Environmental Protection Agency’s ability to broadly regulate carbon emissions from existing power plants, a writing that seemed to trigger Kagan’s inner Ginsburg. She criticized the court for stripping the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.”
“The Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy,” she said.
“I cannot think of many things more frightening,” Kagan concluded.
The conservative court is not finished.
In 2013, Ginsburg wrote a scathing dissent when Roberts penned an opinion gutting a key section of the historic Voting Rights Act.
Ginsburg wrote at the time that weakening the law 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.”
This term, the court is tackling another section of the same law.
And the court is considering whether to bar colleges and universities from taking race into consideration as a factor in admissions plans.
In 2002, Ginsburg memorably wrote about why such programs are necessary. “The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital,” she said.
On Friday former clerk Amanda L. Tyler spoke lovingly about her late boss who, she said, had been described as a “prophet, an American hero, a rock of righteousness, and a national treasure.”
She said Ginsburg had “the best qualities a judge can have: lawyerly precision, an abiding dedication to procedural integrity, a commitment to opening up access to the justice system to ensure that the least shall be heard and considered side by side with the greatest.”
The event in the great hushed hall, like many other memorials, served as a reunion of sorts for Ginsburg’s family and her acolytes and a respite from the court’s regular order. On Monday, the justices take the bench again for a new set of cases.
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