The sixteen years between 1953 and 1969 during which Chief Justice Earl Warren led the U.S. Supreme Court represent legal liberalism’s golden age. The Warren Court wielded the law as an instrument of progressive change in a way that it has not been used since, ruling against school segregation, expanding the rights of criminal defendants, and safeguarding vital First Amendment freedoms.
In tandem with the country’s political leaders, the Court has drifted steadily rightward ever since. It wasn’t just a matter of progressive justices like Thurgood Marshall being replaced by strident conservatives like Clarence Thomas. The Court’s new left-leaning bloc was nowhere near as bold in its liberalism as the justices of the Warren Court. In his cover story for the latest New Republic – an extended interview with Justice Ruth Bader Ginsburg – Jeffrey Rosen notes Ginsburg, now the acclaimed Notorious R.B.G., was initially seen as more milquetoast incrementalist than progressive hero.
But in the face of a concerted conservative campaign in the courts against reproductive rights, campaign finance reform, and voting rights, Ginsburg has emerged as an outspoken champion of the court’s liberal wing. There’s a difference, of course, between resisting a conservative legal offensive and waging a liberal one, but there’s no doubt Ginsburg has helped shape the terms of public debate over the Roberts-era Court. And in her interview with Rosen, it becomes painstakingly clear why Ginsburg was poised to claim the role of the Court’s leading liberal.
“[N]o one who is in business for profit can foist his or her beliefs on a workforce that includes many people who do not share those beliefs.”
Echoing British philosopher John Stuart Mill – whose harm principle posited that liberty "that no one should be forcibly prevented from acting in any way he chooses provided his acts are not invasive of the free acts of others" – Ginsburg continues her criticism of the Court’s ruling in the Hobby Lobby case allowing owners of closely-held corporations to refuse, on religious grounds, to provide contraceptive health coverage to employees.
“I should emphasize that none of us questioned the genuineness of the Hobby Lobby owners’ belief. That was a given,” Ginsburg explains. “But no one who is in business for profit can foist his or her beliefs on a workforce that includes many people who do not share those beliefs.”
Here, Ginsburg provides a useful corrective to the right’s language of “liberty” when it comes to cases like Hobby Lobby. Is it really a victory for liberty and autonomy if women’s health choices are placed at the whims of their employers?
On a post Roe v. Wade America: “It would be bad for non-affluent women.”
Asked about the consequences if the Court overturned its 1973 ruling establishing a woman’s right to an abortion, Ginsburg notes the terrible implications such a ruling would have for low-income women.
“It would be bad for non-affluent women,” Ginsburg says. Since some states would lack legal abortion, women would have to travel to states that still allowed it – something many women would lack the means and flexibility to do. “Women who can’t pay are the only women who would be affected,” she stresses.
Ginsburg’s words are a useful reminder that reproductive justice is not separate from economic justice. The two are very much intertwined.
“One thing that concerns me is that today’s young women … may take for granted the rights that they have.”
“One thing that concerns me is that today’s young women don’t seem to care that we have a fundamental instrument of government that makes no express statement about the equal citizenship stature of men and women,” Ginsburg tells Rosen. “They know there are no closed doors anymore, and they may take for granted the rights that they have.”
That’s both a tribute to feminist trailblazers like Ginsburg – once head of the ACLU’s Women’s Rights Project – and a reminder, amid conservative pushback, of the importance of safeguarding fundamental rights.
“I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.”
Conservative opponents of campaign finance reform inveigh against any restrictions on money in politics as an unconstitutional assault on freedom of speech – and, therefore, a sin against democracy itself.
But Ginsburg, who told Rosen that the Court’s 2010 Citizens United ruling was the one decision she’d overrule if she could choose, says that the ruling is fundamentally anti-democratic.
“I think the notion that we have all the democracy that money can buy,” Ginsburg says, “strays so far from what our democracy is supposed to be.”
Indeed, allowing corporate cash to drown out the voices of ordinary citizens creates a political leadership class that’s responsive primarily to the interests and concerns of the wealthy. This doesn’t just make sense in theory; political science research shows that politicians follow the policy preferences of their well-heeled donors. This, in turn, worsens economic inequality, which further undermines social cohesion and democratic participation. Ginsburg grasps this.
On her judicial heroes
When Rosen asked Ginsburg whom she uses a model for her “constitutional legacy,” she (perhaps predictably) cited the first chief justice, John Marshall, who transformed the Court into a formidable “independent third branch of government.”
But Ginsburg also cited Justices Benjamin Roberts Curtis and John Harlan Marshall, the dissenters in, respectively, the Court’s Dredd Scott and Plessy v. Ferguson rulings.
"Another justice, one who didn’t serve very long, six years, I think, was Justice Curtis, who wrote a fine dissent in the Dred Scott case.Some time later, the first Justice John Marshall Harlan, who dissented in Plessy v. Ferguson," Ginsburg says.
Their arguments may not have carried the day, but they ultimately laid the groundwork for later efforts to dismantle wrongly decided cases. As the Roberts Court chips away at affirmative action, the Voting Rights Act, efforts to curb the influence of money in politics, and women’s rights, Ginsburg is undoubtedly thinking a great deal about the legacies of Curtis and Marshall.