On Supreme Court, Ginsburg’s most memorable work done in dissent.
Ginsburg, as court’s leading liberal, was often in the minority
There was a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on the wall of the chambers of Justice Ruth Bader Ginsburg, who died Friday. She counted the law among her proudest achievements, even as it illustrated her limited power. As part of the Supreme Court’s four-member liberal wing, she did her most memorable work in dissent.
The law was a reaction to her minority opinion in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.
On the court, however, her notable victories were few. As she put it in a 2013 interview in her chambers, she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history.”
There were exceptions, of course. One of her favorite majority opinions, she often said, ruled that the Virginia Military Institute’s maleonly admissions policy violated the Equal Protection clause.
When President Bill Clinton put Ginsburg on the Supreme Court in 1993, some liberals feared she would turn out be a moderate. She had, for instance, voiced doubts about the court’s reasoning in Roe v. Wade, saying it had moved too fast in establishing a nationwide right to abortion.
The fears were misplaced. Over her 27 years on the court, she emerged as a champion of progressive causes. By the time her death ended her tenure Friday, she was the leader of its liberal wing. She assumed that role in 2010, after the departure of Justice John Paul Stevens, and she seemed to enjoy it. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said in the 2013 interview.
Lee Epstein, a law professor and political scientist at Washington University in St. Louis, said Ginsburg “cast more liberal votes than any other justice in the court’s weightiest cases.”
“Ginsburg’s liberalism extended to all areas of the law: civil rights, of course, but also criminal procedure, civil liberties and even economic disputes,” Epstein said. “She was the least likely member of the current court to favor business over governments, unions, shareholders and employees.”
By the time Ginsburg joined the court, her legacy was secure. She was the leading women’s rights litigator in the nation’s history and a counterpart to Justice Thurgood Marshall, who had led the effort to secure racial equality in the courts.
Ginsburg’s work on the Supreme Court did not have the same impact as her work as a litigator. During her tenure, on courts led by Chief Justices William Rehnquist and John Roberts, the court’s more conservative members were in the majority. She and her liberal colleagues needed a fifth vote to achieve a majority, and that vote typically belonged to Justice Anthony Kennedy, who for years served as the court’s ideological fulcrum until his retirement in 2018.
In that coalition, Ginsburg was on the winning side in cases on abortion, affirmative action, gay rights and the death penalty. In a 2016 interview in her chambers, she took pains to praise Kennedy, who had voted with the court’s liberals in cases on abortion and affirmative action. “I think he comes out as the great hero of this term,” she said.
Her own most striking work was when she failed to persuade the majority of her views. In 2013, in Shelby County v. Holder, which effectively struck down the heart of the Voting Rights Act of 1965, she wrote that the majority had been shortsighted in saying the law was no longer needed. “It is like throwing away your umbrella in a rainstorm,” she wrote, “because you are not getting wet.”
She never retreated from her view that the court had moved too fast in Roe v. Wade, and that the court could have struck down only the extremely restrictive Texas law before it.
“I think it’s inescapable that the court gave the antiabortion forces a single target to aim at,” she said in 2013. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”
Ginsburg held out hope that the dissents she had written or joined would someday command majorities.
Speaking in her chambers in 2016, she singled out the court’s 2010 decision in Citizens United v. Federal Election Commission, which amplified the role of money in politics.
“It won’t happen,” she said. “It would be an impossible dream. But I’d love to see Citizens United overruled.”
She mulled whether the court could revisit its decision in the Shelby County case, saying she did not see how that could be done without new legislation.
The court’s 2008 decision in District of Columbia v. Heller, establishing an individual right to own guns, may be another matter, she said.
Heller, she said, was “a very bad decision,” adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.