My Own Words

In this chapter, Ginsburg describes the procedures that the court follows in making decisions about cases. She explains that, of the 6,000-7,000 requests the court receives to consider cases, the number of petitions they actually review is between 100 and 300. Eventually, between 70 to 80 cases receive scheduling for consideration during each term. Typically, the court rules unanimously in 40% of the cases. Ginsburg states that only about 25% of the cases have a sharp 5-4 disagreement.

Ginsburg notes that oral arguments play only a minor role in the deliberations of the court. By the time oral arguments occur, which does not occur with all of the cases they consider, the justices are well versed with the briefs on both sides. Once the court reaches decisions, justices receive assignments to write opinions expressing the majority decision. Also, justices may write dissents. On occasion, some dissents are so well written that justices change their vote on the issue.

Speaking to a group of law students in July, 2008, Ginsburg said, “Essential to the rule of law in any land is an independent judiciary, judges not under the thumb of other branches of government, and therefore equipped to administer the law impartially” (215).

In the remainder of this lecture, Ginsburg discusses the role of a judge and how governments and politicians of every persuasion have sometimes challenged it. Ginsburg describes certain cases in which unpopular judgments resulted in threats to jurists and the judicial process and, as a result, challenged the independence necessary for objective jurisprudence.

Ginsburg served the first 13 years of her time on the Supreme Court under the leadership of Chief Justice Rehnquist. Addressing the George Washington Law School in October 2005, Ginsburg offered a tribute to Rehnquist. In addition to describing his professional demeanor, she talked about his decision-making process and in particular his ability to lead the court. She also expressed appreciation for his compassionate dealings during her year of treatment for colorectal cancer.

Ginsburg first published this article in the New York University Law Review the year before she became a justice. She subsequently presented the essay as a lecture to the New York City University School of Law. It was suitable as the 24th James Madison Lecture on Constitutional Law because of the subjects that she covered, including a discussion of Madison’s view of the constitution and the notion of the Constitution as an evolving document. She notes that “the founders stated a commitment in the Declaration of Independence to equality and in the declaration and Bill of Rights to individual liberty. Those commitments had growth potential” (231).

Going from the Introduction to the section she calls “Collegiality in Appellate Decisionmaking,” Ginsburg moves from an idealistic discussion of the principles of the Constitution to the manner in which US justices use the Constitution to make legal decisions with free-flowing discussions in which sides of issues receive debate. She notes that foreign jurists have expressed alarm that US jurisprudence allows dissenting opinions.

Moving to the second section of the essay, “Measured Motions in Third Branch Decisionmaking,” Ginsburg suggests that the decisions rendered by judges are actually making new law, an opinion voiced by justice Oliver Wendell Holmes, who said, “Judges do and must legislate” (239). Referring to numerous cases, Ginsburg demonstrates how judicial decisions impact not only ongoing interpretations of the law but society as well.

For this lecture, delivered to law students in July 2013, Ginsburg takes her title from Thomas Jefferson’s statement in the Declaration of Independence that a decent respect for the opinion of others compels those seeking independence to explain their reasons. Ginsburg uses this notion to emphasize the importance for jurists as well as other governmental leaders to consider (or to take what she often refers to as “sideglances” into) the legal workings of other nations. She explains the distinction between the law of nations, which is international law, and the laws specifically adjudicated in other countries, saying that the law of nations impacts the US, while the specific laws of other nations do not.

Ginsburg elaborates on the history of American jurists, such as Chief Justice John Marshall, advising that American jurists observe the conduct of laws in other lands: “[D]ecisions of the courts of other countries merit respectful attention for their potential persuasive value when they address problems similar to those we encounter” (249). She comments on the reality that some US legislators balk at this. Quoting her colleague Justice Elena Kagan, Ginsburg notes that “foreign opinions set no binding precedent for the US judge. But they can add to the store of knowledge relevant to the solutions of trying questions” (255).

In this chapter, Ginsburg shares three essays dealing with pivotal judicial concerns emerging first in the 20th century that carry over into the 21st century. As her biographers note, the author has shared these opinions on numerous occasions, refining and using them to suit her audience.

The first case she discusses is Brown v. Board of Education, in which she spoke in South Africa in 2006. Ginsburg describes the Brown decision as it relates to the United States’ place in history following World War II. She quotes Chief Justice Earl Warren, who compared the atrocities committed by the Nazis to the United States’ treatment of its Black citizens: “The contradiction between the egalitarian rhetoric employed against the Nazis and the presence of racial segregation in America was a painful one” (260). Ginsburg notes that the Brown decision elevated the US in the eyes of the world: “It propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity of all the world’s people” (265).

The second case Ginsburg lifts up is Loving v. Virginia, which she discussed before a high school teachers’ program in the Supreme Court in 2009. The case concerned an interracial couple forced to leave the state of Virginia, which forbade such unions. Living in Washington, DC, the couple was inspired by the March on Washington to seek redress against the State of Virginia. Richard and Mildred Loving won their case in front of the Supreme Court in 1967 when the court held Virginia’s miscegenation law unconstitutional.

The final section of the chapter, given in Paris before an international affirmative action group in 2009, bears the title “Remarks on The Value of Diversity: International Affirmative Action.” In the first part of the lecture, Ginsburg expresses the idea that “a nondiscrimination principle alone will not ensure substantive equality” (268). She uses examples from South Africa, the European Union, and India to discuss the necessity of affirmative action to overcome entrenched inequality. In the second part of the lecture, she turns her attention to attempts at affirmative action in the US. Ginsburg identifies herself as a beneficiary of affirmative action “when, in 1972, I was engaged by the Columbia University law faculty as the first woman ever to hold a tenured position there” (271). In the concluding part of the lecture she notes, “Affirmative action measures are controversial because they send both inspiring and disturbing messages” (274).

Ginsburg’s biographers in this chapter share the author’s thoughts on the significance of expressing disagreement with her majority colleagues when she believes they have made serious errors in their legal opinions. This chapter contains several dissenting bench announcements delivered by Ginsburg. She presented these to Tulane law students in July 2013 as a part of her lectures on the significance of dissent.

In the first section, “The Role of Dissenting Opinions,” Ginsburg describes the Supreme Court’s historical goal of achieving consensus in its decisions. Accordingly, Ginsburg says that a jurist who feels the need to dissent always asks if that dissent is truly necessary. She notes that, on occasion, a dissenting opinion shared with other members of the court has caused jurists to change their votes. Summarizing, Ginsburg says that despite the recognition that the majority will prevail, she recognizes the significance of dissenting both in the present moment and for the historical record.

In a bench announcement entitled Ledbetter v. Goodyear Tire and Rubber Company, a woman who was a longtime employee of a tire and rubber company sued for being paid considerably less than men of equal responsibility and tenure. Her suit eventually reached the Supreme Court, which ruled that Ledbetter could no longer pursue her case because she had waited too long to file. In her dissent, Ginsburg pointed out that placing a chronological limit on Ledbetter’s case created an unrealistic burden, a double standard that would have prevented her from succeeding regardless of when she sought redress.

Next is Vance v. Ball State University, in which a university employee sued because he was experiencing sexual harassment. The court majority ruled that the suit could not proceed against the university because the harasser was not the employee’s supervisor. Ginsburg pointed out that the harasser actually was the employee’s superior and had no perception that this person was not a supervisor, making the distinction artificial.

In Shelby County v. Holder, an Alabama county sought release from the Voting Rights Act ban of inhibiting the voting rights of Black people in the county. The majority of the court found in favor of Shelby County, which meant that all other US counties whose voting regulations required approval by the Justice Department through a process referred to as preclearance were no longer subject to scrutiny. Ginsburg points out the irony of this in her dissenting comment: “Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you’re not getting wet” (292).

In Abigail Fisher v. University of Texas at Austin, Fisher was a white student who sued the University of Texas because she did not qualify for admission through the Texas Top Ten Percent law, which makes eligible for university attendance all students in the top 10% of their high school graduating class. The Supreme Court ruled that the Texas law was racially neutral. Ginsburg argued that the court was wrong because the different quality of high schools in Texas meant that majority Black schools would promote Black students into the university while other, higher achieving high schools would prevent white students from admission to the university.

National Federation of Independent Business v. Sebelius is the case that decided the fate of the Affordable Care Act (ACA). The court ruled the ACA constitutional because it was a form of taxation granted to Congress. Ginsburg dissented against the court’s judgment, arguing that it was a misrepresentation of Congress’s ability to lay and collect taxes because health care is unlike other market products. She also believed that defining Congress’s ability to collect taxes in this way impaired other options Congress had for taxation. Although she was in favor of the ACA, she notes that “the Court’s commerce and spending clause jurisprudence has been set awry” (307).

Burwell v. Hobby Lobby Stores also concerned the ACA, which contains a provision allowing employees to obtain contraceptives through their health care plan. Hobby Lobby sought to avoid this provision of the ACA because providing contraception violated the company’s religious beliefs. Although the court ruled in favor of Hobby Lobby, Ginsburg points out that the ACA implied no exceptions for any for-profit corporations, which makes the religious beliefs of the organization’s leaders moot.

Gonzalez v. Carhart revolved around a medical procedure for late term abortions referred to as dilation and evacuation (D&E), or partial birth abortion. In question was the constitutionality of a federal law called The Partial Birth Abortion Act of 2003, in which the majority ruled that the law was constitutional. In her dissent, Ginsburg pointed to a previous ruling on a similar matter in which the court had ruled against banning the D&E procedure because the law did not include a clause to protect a woman’s health. Proponents of the law argue that it protects women. Ginsburg argues that “the Court shields women by denying them any choice in the matter” (315).

Ginsburg concludes the volume by giving a brief overview of the Supreme Court’s 2015-2016 term. Her biographers point out two significant cases that caught the public attention during this term. One was the return of Fisher v. The University of Texas; the other was the Whole Woman’s Health v. Hellerstedt case.

Ginsburg writes that she missed her friend Justice Scalia. Having received 6,375 petitions for review, the court determined that it would select 79 to receive full opinions. Returning to Fisher v. University of Texas at Austin, the court affirmed 4-3 to affirm the judgment of the Court of Appeals, meaning that Fisher could not gain admission to the school.

In Whole Woman’s Health v. Hellerstedt, access to abortion in Texas came under threat from a new state law. Abortion providers in Texas sought to overturn abortion access regulations, established by the state’s legislature, requiring that abortion clinic physicians have privileges at hospitals and that the clinics have the same standards as surgical centers. The enforcement of the laws would eliminate more than 30 abortion providers, leaving only seven or eight. The court ruled 5-3 that the Texas laws “did not genuinely protect women’s health […] Instead, they burdened a woman’s access to an abortion for no tenable reason” (328).

In addition, Ginsburg describes RJR Nabisco, Inc. v. European Community, in which the European Union used a federal racketeering law to sue an American company. The court dismissed the suit because the law did not support such an action. In another international case, the court disposed of Bank Markazi v. Peterson, concerning assets of the Central Bank of Iran. This was a procedural issue regarding assets made available for victims of terrorist attacks abroad. The question dealt with the separation of powers, and the court upheld the statute freeing assets for distribution to creditors.