News Intelligence Analysis
From the New York Times
May 31, 2007
Supreme Court Memo
Oral Dissents Give Ginsburg a
New Voice on Court
By LINDA GREENHOUSE
WASHINGTON, May 30 — Whatever else may be said about the
Supreme Court’s current term, which ends in about a month,
it will be remembered as the time when Justice Ruth Bader Ginsburg
found her voice, and used it.
Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now “differently composed than it was when we last considered a restrictive abortion regulation.” In the latest case, she summoned Congress to overturn what she called the majority’s “parsimonious reading” of the federal law against discrimination in the workplace.
To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.
The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”
The justice’s acquaintances have watched with great interest what some depict as a late-career transformation. “Her style has always been very ameliorative, very conscious of etiquette,” said Cynthia Fuchs Epstein, the sociologist and a longtime friend. “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”
Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.
Justice Alito, of course, took the place of Justice Sandra Day O’Connor, with whom Justice Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Chief Justice Roberts succeeded Chief Justice William H. Rehnquist, with whom Justice Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.
For example, in 1996, over Justice Scalia’s vigorous dissent, the chief justice gave Justice Ginsburg his vote in a decision holding that the Virginia Military Institute’s men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today’s adversary could be tomorrow’s ally.
If there has been any such meeting of the minds between Justice Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side’s interests are better served by appealing not to the court’s majority but to the public. “She’s sounding an alarm and wants people to take notice,” said Debra L. Ness, president of the National Partnership for Women and Families, an advocacy group that focuses on the workplace.
Goodwin Liu, a law professor at the University of California, Berkeley, was one of Justice Ginsburg’s law clerks when the court decided the 2000 election case, the bitterly divided Bush v. Gore decision, from which she dissented. Even during that freighted period, Professor Liu said, “I was struck by how much of an institutional citizen she was, how attuned to the wishes of her colleagues and to not giving offense.”
Professor Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly M. Ledbetter, Justice Ginsburg was also telling a version of her own story. “Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men,” Professor Liu said. “It’s as if after 15 years on the court, she’s finally voicing some complaints of her own.”
Another of the justice’s friends, Prof. Judith Resnik of Yale Law School, noted that throughout her legal career, Justice Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions. “Those of us reading not just the grand-slam cases but the quieter ones have heard her voice,” Professor Resnik said. She added, “Now that the stakes are going up, more people will be listening.”
Copyright 2007 The New York Times Company
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