September 19, 2020

NOT TRIVIAL, JUST KIND OF SAD:

The Ruth Bader Ginsburg Fandom Was Never Frivolous: The kitschy celebrations of the justice have always insisted, in their way, that the personal is judicial. (MEGAN GARBER, SEPTEMBER 18, 2020, THE ATLANTIC)

One of the themes of On the Basis of Sex, the Ginsburg biopic, is the question of cultural evolution. Is progress best made patiently, incrementally? Or is patience a form of complacency? An early scene finds Ginsburg, played by Felicity Jones, and her husband, Marty (played by Armie Hammer), at law school: He's in his second year; she's in her first. A professor quotes the legal scholar Paul Freund's observation about the Supreme Court: Its justices, Freund once said, "should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era."

That insight informs the film, which focuses on the work Ginsburg did--long before President Bill Clinton, in 1993, appointed her to the Court--to end gender-based discrimination in American case law. Weather versus climate: Ginsburg, as a jurist, is typically associated with the style of change that is slow and systemic and therefore, the argument goes, sustainable. The film makes a notably different claim. It celebrates Ginsburg, in the end, as a revolutionary. It finds her working with Marty--who was a brilliant tax attorney--to challenge one of the gendered assumptions embedded in the American tax code. The effort was at once pragmatic and radical. It was a means of taking on a widespread system that discriminated on, yes, the basis of sex.

"The film is part fact, part imaginative," Ginsburg said. "But what's wonderful about it is that the imaginative parts fit in with the story so well." Its screenplay was written by Ginsburg's nephew, Daniel Stiepleman. And it focuses on Ginsburg as a wife and mother as well as a jurist. It tells the story of Marty's diagnosis of testicular cancer, when both he and his wife were in law school. It details how Ruth cared for him through radiation therapy and helped him graduate. It emphasizes Ruth's relationship with her daughter, Jane, who admired Gloria Steinem and didn't realize that she was living with another feminist icon. Like many biopics, the film has the glossy veneer of hagiography--down to one of its final scenes, which finds Jones's version of Ginsburg walking up the steps of the Supreme Court Building, only to morph into the real Ginsburg doing the same. But On the Basis of Sex earns its accolades, in part because it echoes Ginsburg's own legal argument: It insists that you can't understand Ginsburg as a jurist if you don't understand her as a person. It challenges the notion that legal wisdom can somehow be separated from justices' humanity.

Ginsburg herself saw her life experience--the discrimination she faced, as a woman and a mother--as essential to her interpretation of the Constitution. She knew in her bones what it is to be seen, by other people and by the law, as less than. ("If you want to understand how an underestimated woman changed the world and is still out there doing the work," the introduction to the book Notorious RBG reads, "we got you.") She took for granted that wisdom is not a matter of separation from the facts of everyday life; wisdom comes from a deep acquaintance with those facts. "As we live, we can learn," she noted. She added: "It's important to listen."

But wisdom can stem from anger and indignation. "Notorious RBG," the meme--and, soon enough, the brand--sprang up as a result of one particular dissent: Ginsburg's reaction to the Court's 2013 decision in Shelby County v. Holder, which struck down provisions of the Voting Rights Act of 1965. 

Ms Ginsburg was, by all accounts, a particularly decent person and colleague--as attested by her friendship with equally ideological Antonin Scalia.   But, like Clarence Thomas/Samuel Alito, in legal terms what has been lost is a reliable vote for one side, not someone who influenced the Court or its law. Note that she is celebrated for her dissents, not for any significant 5-4 opinions.  It is the pragmatists--Warren, Brennan, Roberts, Gorsuch, Kagan--who steer the Court.


MORE:
A Milestone for Ruth Bader Ginsburg: For the first time ever, the justice had the honor of assigning a majority opinion for the Supreme Court. (MARK JOSEPH STERN, APRIL 18, 2018, Slate)

On Tuesday, Justice Neil Gorsuch voted with the Supreme Court's liberals to strike down the key provision of a statute that allows the expulsion of certain noncitizens. The ruling in Sessions v. Dimaya was notable for throwing a wrench into the federal government's deportation regime. It was also groundbreaking for another, less obvious reason: It marked the first time Justice Ruth Bader Ginsburg assigned a majority opinion in her nearly 25 years on the high court.

This milestone is long overdue. Justices receive the power to assign opinions as they gain seniority: The most senior justice in the majority gets to assign the opinion of the court, an important task with ramifications for the outcome of the case. Seniority is determined by years of service, though the chief justice is always considered the most senior. That means Ginsburg is currently the fourth most senior justice, following Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Clarence Thomas.

Ginsburg became the most senior liberal justice after Justice John Paul Stevens retired in 2010. Yet whenever she's found herself in the majority in a 5-4 decision, another justice has been able to claim seniority. Occasionally, Roberts or Thomas joins the liberal justices. Kennedy, though, is usually the swing vote, and he likes to assign landmark progressive decisions--like the marriage equality rulings--to himself. If Justice Samuel Alito had given the liberals a fifth vote since Stevens' retirement, Ginsburg could've assigned the opinion. But in his 12 years on the bench, Alito has not once joined the liberals in a 5-4 ruling.

When Gorsuch cast his vote in Dimaya, he gave Ginsburg a novel opportunity--the power to assign the opinion of the court. And not just any opinion but a hugely consequential decision strengthening the Due Process Clause's guarantee against vague legislation. Ginsburg gave that task to Justice Elena Kagan, which is no surprise. Kagan is a brilliant writer who can thread the jurisprudential needle with eloquence and wit. She's a canny strategist with moderate instincts and a knack for coalition-building. Kennedy and Thomas have, respectively, assigned Kagan opinions in big cases involving juvenile life without parole and racial gerrymandering. She hit both out of the park, pushing the law leftward without alienating her right-leaning colleagues.

When writing a majority opinion, a justice isn't merely speaking for herself; she's speaking for "the court," effectively announcing the law of the land. When writing for a slim majority, she must often incorporate qualifications and concessions from her colleagues so she can retain their votes. We don't yet know whether Kagan and Gorsuch wrangled over the language of the opinion, though such disputation wouldn't be out of character for either. What we do know is that Kagan managed to hold onto Gorsuch's vote, drawing this punctilious, idiosyncratic justice's support for the bulk of her opinion.

Posted by at September 19, 2020 7:54 AM

  

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