The Transformation of Justice Ruth Bader Ginsburg, As the Roberts Court Shifts from Harmony and Consensus to Bitter Division

By EDWARD LAZARUS
Thursday, Jun. 21, 2007

What a difference a year makes. Last year, at about this time, in the wake of an unusually high number of unanimous opinions, much of the legal world was remarking on the perceived ability of Chief Justice John Roberts to bring greater harmony and consensus to a Court that had often fractured badly under his predecessor, William Rehnquist. But now, in the wake of the recent bitterly contested 5-4 decisions cutting back on abortion rights and severely limiting women's ability to sue under Title VII for pay discrimination, much of the legal world is remarking on the seemingly intractable split between the Court's liberal and conservative wings.

As most commentators are beginning to realize, worse is yet to come. Sometime in the next week or so, the Court will very likely endure another 5-4 emotional meltdown. This time, the subject will be the constitutionality of pupil assignment plans that, in order to maintain racial diversity in K-12 classrooms, use race as one factor in reassigning kids from oversubscribed public schools.

The smart money says that the Court will strike down such plans (common across the United States), and thus deal another crippling blow to the judicial ideals held firmly by the Court's more liberal justices.

This turnabout in the Court's internal dynamics was quite predictable -- and, indeed, was predicted by a number of observers. It speaks volumes about the unrealistic expectations we persist in maintaining about our Supreme Court.

We Idealize the Court, Forgetting the Justices are Neither Robots Nor Philosopher-Kings

We idealize the Court. To a remarkable degree, evidence and theory to the contrary, as a nation we insist on imagining the Justices as a group of hyper-intelligent, hyper-rational diviners of objectively discernible legal truths.

To be sure, the Justices sometimes disappoint us and render decisions we denigrate as "political." Liberals cry foul at a Bush v. Gore or assaults on the right to privacy. Conservatives have their own set of shibboleths - like the Kelo decision broadening government's power to seize property, or decisions protecting abortion rights, or the rights of gay persons.

But, overall, whatever our politics, we treat these decisions as aberrational. Somehow, they never seem to shake our overarching faith in the power of the Court's members -- as a collective -- to engage in a dispassionate search for constitutional truth, disembodied from their own personal politics, moralities, and backgrounds.

The Justices themselves, like Presidents and Senators, do what they can to deepen and perpetuate this vision. At nomination and confirmation time, they routinely pay homage to the ideal of a justice who dispenses legal thunderbolts without regard to personal beliefs.

Metaphors abound. As a nominee, Clarence Thomas invoked the image of a runner stripped clean of past political and ideological allegiances. John Roberts talked about the baseball umpire calling balls and strikes. Whatever the sport, the notion is the same - as an ideal, upon taking the bench, justices leave their old lives behind and apply an objectively knowable set of legal rules in some objective and neutral fashion.

In this respect, our views of the Court defy modernity. A central teaching of modernism (and post-modernism too) is that there really is no such thing as an entirely "value-neutral" interpretation of texts like the Constitution. Inevitably, we read such texts in part through the prism of personal experience and belief - and we invest those texts with meaning accordingly.

Academia, of course, rejected the myth of "neutral" interpretation decades ago. A main thrust of the Legal Realist movement - the approach to legal thinking that dominated much of the Twentieth Century - was to reveal the influential social, political, and moral content of legal interpretation and decision-making. Subsequent schools of thought, such as Critical Legal Studies, went even further - nihilistically denying any distinction between "law" and personal beliefs. But one need not go nearly so far as that, in order to reject the idea of judges as merely applying objectively discernable rules - a point of view that, it seems, has been almost universally rejected as myth.

The Transformation of Justice Ruth Bader Ginsburg

This year at the Court, the human element of judicial decision-making has been especially in evidence. Amid the re-emergence of discord and division, the most notable development this term has been the transformation of Justice Ruth Bader Ginsburg. Originally an outwardly bland moderate known for denying rumors of internal Court strife, Ginsburg has changed quite radically into a passionate, even bitter, dissenter from the increasingly conservative drift of the Roberts era.

It's plain that this transformation does not derive from some previously latent debate over abstract legal principle between Ginsburg and the Court's conservatives. Rather, it derives from disagreements fundamentally informed by Ginsburg's own life experience and the legal and moral vision that has developed from it.

Ginsburg made her name as perhaps the foremost legal champion of women's equality. In the 1970s, she briefed and argued many of the seminal cases that brought women within the ambit of the Equal Protection Clause, and that became the building blocks for the regime of gender equality now entrenched in law. Indeed, before going onto the bench, Ginsburg was known as the Thurgood Marshall of the women's rights movement - the architect of a wide-ranging litigation campaign to allow women equal access to all walks of national life.

In this personal history lies the explanation for Ginsburg's sudden emergence as an ardent dissenter. Just look at the cases in which she has so forcefully expressed herself, even going so far as to read her dissents from the bench (which is the way justices signal moments of extraordinary displeasure). The first instance was her dissent from the 5-4 decision upholding a criminal ban on late term abortions that contained no exception for situations threatening the health of the pregnant woman. The second instance was the 5-4 decision making it more difficult for woman to sue for workplace discrimination.

These decisions directly undermined the central purpose of Ginsburg's professional life: to ensure equality for women. Although Ginsburg has lukewarm feelings towards Roe v. Wade, she believes wholeheartedly in the essential link between abortion rights and women's equality. From her perspective, there can be no true equality if women do not have the right to control if and when they have children.

In the same vein, no one appreciates more deeply than Ginsburg the vital role that Title VII has played in bringing equal rights to the workplace, as well as the special difficulties women still face in vindicating their right to equal pay for equal work.

It is thus inconceivable that Ginsburg's own life experiences do not color her view of what the Constitution has to say about abortion rights, or whether Title VII should be given a broader or narrower reading.

And it is just as inconceivable that Ginsburg would not feel personally wounded - perhaps inconsolably so -- by Court decisions that undermine the legal structure of gender equality that she spent the better part of her life designing and building. In this sense, Ginsburg's reading of her dissents was a cry of anguish, with obvious ramifications for the Court's already fragile internal dynamics.

Ginsburg's Evolution May Be Most Obvious, But She Is Not Alone

This phenomenon, however, is by no means limited to Ginsburg. Each of the justices has his or her own set of particularly deeply-held convictions - the kind that can create profound and lasting antipathies. And there is simply no finessing them with the pretense that judging is utterly impersonal, disconnected from the individual systems of belief that are developed over lifetimes.

In short, those who believed that last year's respite from Supreme Court acrimony was a precursor of a new kindler, gentler Court were exempting the institution from the laws of human nature. These are enormously serious people with enormously serious and utterly conflicting convictions - one faction pitted, again and again, against the other. The idea that it isn't personal is therefore absurd. Nothing could be more personal.

The Court's recent shift into disharmony, then, is a formula for ever-deepening division -- one that no amount of happy talk or mythologizing can solve.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.