Ruth Bader Ginsburg: the Supreme Court's outspoken justice

Ruth Bader Ginsburg is more than just a member of the Supreme Court -- she’s become a liberal icon and, even more improbably, a celebrity.

Her likeness appears on T-shirts. A book about her, “Notorious RBG,” is a big seller. Kate McKinnon does an impression of her on “Saturday Night Live” (“You’ve been Ginsburned!”).

In January, Ginsburg appeared before an adoring crowd at the Sundance Film Festival premiere of “RBG,” a documentary about her life. The movie went over big, and should soon be appearing at a theater near you.

Part of this rise may be attributable, ironically, to the man who presently sits in the White House. As one of the Supreme Court’s most stalwart liberals, Ginsburg, in recent years, has been defined to a certain extent by her opposition to Donald Trump.

Most justices stay out of political battles, but not Ginsburg. In the midst of the presidential race in 2016, she told “The New York Times” “I can’t imagine what this place would be — I can’t imagine what this country would be — with Donald Trump as our president.”

She wasn’t done. She later added, “He’s a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego....How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.” For someone whose job is following precedent, this sort of talk was almost unprecedented.

Trump responded in kind, tweeting: “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot — resign!”

Many felt she’d crossed a line, and she expressed regret for her criticism. (Later that year she criticized Colin Kaepernick for refusing to stand for the national anthem, and ended up apologizing for that, as well.)

Trump, probably to the surprise of Ginsburg, was elected. And Ginsburg, to the surprise of no one, did not resign as Trump had demanded. She also did not stop talking politics.

Earlier this year, she spoke of her fear that the federal judiciary, in Washington’s partisan climate, would be seen as just another political branch. But not too long after, she showed she was still willing to wade into political battles herself, repeating charges she’d made in 2017 that sexism was a major factor in Hillary Clinton’s loss, noting the candidate had a tough time getting by “the macho atmosphere prevailing during that campaign.”

And if that wasn’t enough to keep her name out there, she also made a stir with her #MeToo story of sexual harassment from a teaching assistant when she was a student in a Cornell chemistry class.

When all is said and done, though, what matters most are not the things she says to the media, but the official opinions she expresses as one of the nine most powerful judges in the land.

At 84, she’s the oldest member of the Court, and though she’s had health issues — twice she’s undergone cancer surgery — she has no plans to retire. (Some on the left had hoped she’d leave the court while a Democrat was in the White House, but that wish has been put on hold.) In fact, Ginsburg’s health regimen is well known — there’s a book out by her personal trainer Bryant Johnson, “The RBG Workout.”

Unlike her colleague and second-oldest justice, Anthony Kennedy — the court’s most important swing vote -- Ginsburg’s jurisprudence tends to be less in doubt on controversial cases. Certainly many of her beliefs were clear before she was nominated by President Clinton, as she had worked for the ACLU and specialized in gender discrimination.

Nevertheless, court watchers pay close attention to Ginsburg. Sitting on a court that leans conservative, many see her as the best at making the liberal argument in high profile cases.

Among her most famous opinions are “United States v. Virginia” (1996), striking down the Virginia Military Institute’s male-only policy; “Ring v. Arizona” (2002), limiting the circumstances where a defendant can receive the death penalty; and “Eldred v. Ashcroft” (2003), stating that extending copyright protection doesn’t violate the First Amendment or the Constitution’s Copyright Clause.

But it’s her dissents where many think she’s most compelling.

In “Ledbetter v. Goodyear Tire & Rubber Co.” (2007), Ginsburg wrote for the minority in a 5-4 case about the proper deadline for filing a claim of sexual discrimination.

Apparently troubled, even offended, by the decision from the Court’s conservatives, she took the unusual step of reading her dissent from the bench. Ginsburg argued that the Court had a “cramped interpretation” of the “broad remedial purpose” of civil rights law. Her argument, in a way, won out when, in 2009, Congress passed the Lily Ledbetter Fair Pay Act, effectively overturning the majority’s decision.

She also dissented in “Gonzalez v. Carhart” (2007), a case that upheld, 5-4, a partial-birth abortion ban.

Ginsburg would have none of it, writing “Today’s decision is alarming...for the first time since ‘Roe,’ the Court blesses a prohibition with no exception safeguarding a woman’s health.” She didn’t hold back: “In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives.”

Then there’s her dissent in yet another 5-4 case, “Burwell v. Hobby Lobby” (2014), where the Court struck down, for certain companies, the contraceptive mandate in the Affordable Care Act.

She wrote “mindful of the havoc the Court’s judgment can introduce, I dissent.” She claims the Court, in looking at relevant law and precedent, “falters at each step of its analysis.” She also states “The Court, I fear, has ventured into a minefield” in trying to determine which religious objections to laws are worthy.

In the upcoming months, there will be decisions on a number of potentially game-changing cases — issues regarding the First Amendment, states’ right, labor law and gerrymandering, for example. It’s possible Justice Ginsburg will write some of these opinions.

It’s even more likely, many believe, she’ll be writing more dissents. If that happens, expect fireworks.

 

Steve Kurtz is a producer for the Fox News Channel, and author of "Steve’s America (the perfect gift for people named Steve)".