Justice Ruth Bader Ginsburg (1933-2020) made an enormous contribution to American law, and to constitutional law in particular. She also had a strong cosmopolitan outlook and a belief in the value of foreign law as a source of ideas for addressing fundamental legal and constitutional problems. See, for example, her 2005 Sir David Williams Lecture at Cambridge “‘A Decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication” (2005) 64 Cambridge L.J. 575. She authored the Supreme Court opinion in several important sentencing cases, the more recent, to the best of my knowledge, being Oregon v Ice 555 U.S. 160 (2009) and Timbs v Indiana 586 U.S. – (2019). The question in Ice was whether an Oregon law permitting a judge, rather than a jury, to find aggravating facts necessary to justify consecutive as opposed to concurrent sentences was compatible with Apprendi v New Jersey 530 U.S. 466 (2000) (the first in a line of cases holding that any unadmitted facts, apart from prior convictions, that may increase a sentence beyond the permitted maximum must be found by a jury applying the criminal standard of proof rather than by a judge). The majority in Ice held that Apprendi did not apply to decisions on whether prison sentences should be consecutive. As might be anticipated by anyone familiar with the area, this provoked a vigorous dissent from Justice Scalia, with whom three others joined.
Timbs was effectively a unanimous decision, although two justices filed concurring opinions arguing that the result should have been reached by a different route. The petitioner was convicted of drug offences by an Indiana court and sentenced to a year’s home detention followed by five years’ probation. Civil proceedings were later brought for the forfeiture of his Land Rover which he had bought for about $42,000 out of the proceeds of a life insurance policy received after his father’s death. This money was in no way connected with drug dealing. The lower court in Indiana and the Court of Appeal held that this attempted forfeiture was a disproportionate punishment and one that amounted to an excessive fine contrary to the Eighth Amendment. But the Indiana Supreme Court reversed, holding that the excessive fines clause of that Amendment applied only in federal law and not to the states. (In Austin v Texas 509 U.S. 602 (1993), it was held that the excessive fines clause applies to civil forfeiture, such as the seizure of the vehicle in this case, when carried out by the federal government). The question for the Supreme Court in Timbs was whether the excessive fines clause in the Eighth Amendment also applied to the states through the Fourteenth Amendment. The Court held that it did as, in fact, most of the states already accepted. Justice Ginsburg’s opinion incudes a very useful historical survey, from the Magna Carta onwards, of the prohibition on excessive fines and disproportionate punishments, although the Court would have been indebted in this regard to the really superb written brief presented on behalf of the petitioner.
Although Justices Ginsburg and Scalia often clashed on the court, they maintained a warm personal friendship off the bench. A picture published a few days ago in the New York Times showed the two of them bedecked with flower garlands and astride an elephant in India sometime in the 1990s. The same newspaper published a video tribute to Ginsburg just after her death, and it included an old video clip of Scalia saying: “What’s not to like about her? Except, of course, her opinions about the law!”
Impressive though she was as a judge, Ginsburg had an even more remarkable career as an advocate. She belongs to a very small cohort of former Supreme Court justices who would have had a transformative influence on American law even if they had never been appointed to the bench. The same might be said of Thurgood Marshall and Oliver Wendell Holmes. Throughout the 1970s, Ginsburg argued several landmark cases on gender equality before the US Supreme Court. She had the luxury of being an academic lawyer at the time, having taught at Rutgers Law School from 1963 to 1972 and at Columbia Law School, where she was the first woman professor to receive tenure, from 1972 until her appointment to the US Court of Appeals for the District of Columbia in 1980. She was appointed by President Clinton to the Supreme Court in 1993. She could therefore pick and choose her cases more freely than other lawyers although it was, of course, a tribute to her that she was briefed in leading cases to begin with.
She was then seen, and is still regarded, as a champion of women’s rights. Yet, some of the more important cases she argued during that era involved discrimination against men. According to one narrative, her plan was to begin with those cases so as to persuade (some have even said “trap” or “soften”) the all-male Supreme Court to affirm that gender discrimination was unconstitutional before she moved on to cases involving discrimination against women. However, the record contradicts that narrative. First, that is not the order in which the cases were brought. In fact most of them were heard in a fairly short time frame, running from Reed v Reed 404 U.S. 71, heard in October 1971, which involved discrimination against women and in which Ginsburg co-authored the appellant’s brief, to Craig v Boren 429 U.S. 190, heard in October 1976. She submitted an amicus brief in Craig but on this occasion she was seated at counsel’s table during argument. Secondly, even in cases where the primary victim of the discrimination was male, Ginsburg usually managed to show, quite convincingly, that the underlying problem was an unwarranted gender stereotyping of women. This was particularly striking in her argument in Kahn v Shevin 416 U.S. 351 (1974), although the case involved overt discrimination against widowers.
In between Reed and Craig were three major cases she personally argued before the Supreme Court and, thanks to the wonders of the internet, we can still listen to recordings of the proceedings, including her arguments, on sites such as Justia and Oyez. To understand the agenda she was trying to advance, one needs to know that, by about 1970, the Supreme Court had developed a two-tier test for adjudicating discrimination claims. Some claims were assessed using a “rational basis” test according to which challenged legislation would be upheld if it could reasonably be regarded as consistent with a legitimate governmental objective. However, other claims, essentially those based on race, alienage and national origin were subject to a more rigorous test. These were regarded as “suspect classifications” that called for “strict scrutiny.” In such a case, the government had to show that the discrimination was justified by reference to a compelling governmental interest, a criterion that was seldom easy to satisfy. (For an excellent account of the law as it stood at that time, see John H. Hasen, “Sex Discrimination and Equal Protection: The Question of a Suspect Classification” (1976) 5 NYU Review of Law and Social Change 1).
Ginsburg firmly believed that gender too should be treated as a suspect category attracting the higher standard of scrutiny. She almost, but not quite, succeeded in Frontiero v Richardson 411 U.S. 677 (1973). Under the law applicable to army personnel, a serviceman was entitled to certain additional benefits for his wife who was assumed to be a dependent. However, a servicewoman, Sharron Frontiero in this case, could not claim that her husband was a dependent unless he in fact depended on her for more than half his support. Ginsburg appeared as amicus in this case, but counsel for the appellant shared his time with her. She took the opportunity to make a strong argument for applying strict scrutiny to sex discrimination cases. Eventually, Fontiero won her case, but the Supreme Court was split on the reasons. A four-judge plurality, for whom Justice Brennan wrote, accepted that sex discrimination should attract strict scrutiny, but that was one short of the five votes needed to make this the law.
Listening back now to Ginsburg’s argument in Frontiero, one is struck first of all by her sheer fluency. She was ordinarily and famously a very slow speaker, given to long pauses so that one seldom knew if she had finished speaking or was just thinking about what to say next. But there was none of this when she appeared in court. She spoke with extraordinary fluency, clarity and conviction. Of course, having only 30 minutes to present one’s entire case does concentrate the mind, and in Frontiero she had only 15 minutes at most. Secondly, she was let speak without interruption. There were no questions from the bench. Thirdly, her arguments clearly influenced Justice Brennan’s plurality opinion, even in the language used. During her oral submissions, she had said:
“Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or contribute to society.” (The oral argument can be heard at: https://www.oyez.org/cases/1972/71-1694).
Justice Brennan’s plurality opinion said (411 U.S. 677 at 686):
“Sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth…. And what differentiates sex from such nonsuspect statuses of intelligence or physical ability, and aligns it with the recognised suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”
This must have given Ginsburg considerable satisfaction, because her principal and unifying ambition in the gender discrimination cases she argued and decided was to show that women, and equally men, should not be presumed incapable of doing any kind of work or fulfilling any social function solely on account of their gender. Equality was her overriding concern.
She may have failed to secure a Supreme Court majority for a strict scrutiny test in Frontiero, but she got something of a consolation prize in Craig v Boren 429 U.S. 190 (1976). This involved a challenge to an Oklahoma law that prohibited the sale of certain kinds of alcohol to males under the age of 21 and females under the age of 18. Ginsburg, as noted earlier, filed an amicus brief on behalf of the ACLU and was present at the hearing. A majority of the Supreme Court held that the Oklahoma law amounted to invidious discrimination against males. More importantly, from a longer term perspective, the Court majority held that sex discrimination was subject to “intermediate scrutiny” under the Fourteenth Amendment. Being a pragmatist, Ginsburg was probably happy with this as a significant step forward, even if it fell short of her ideal. Later in United States v Virginia 518 U.S. 515 (1996), probably the most important sex discrimination case in which she delivered the opinion of the Court, she was able to advance the cause further by stating (p. 531): “Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification for that action”” (citing earlier decisions).
She was lead counsel for petitioners in two other important cases dating from the mid-1970s: Weinberger v Wiesenfeld 420 U.S. 636 (1975) and Kahn v Shevin 416 U.S. 351 (1974). Wiesenfeld raised an issue that would have been familiar to us in this country where, for a long time, a woman whose husband died qualified for a widow’s pension whereas a widower was entitled to no such benefit even if he was caring for dependent children. The facts of Wiesenfeld were slightly different, but the legal issue was essentially the same. In 1972 Paula Wiesenfeld died in childbirth, leaving her husband to care for their newborn child. She had worked as a teacher and was the main provider of the family’s income. If it was her husband who had died she would have been entitled to social security benefits, based on his earnings, for herself and the child, but a surviving husband, as in this case, was entitled to child benefit only. An eight-judge court unanimously ruled in favour of Mr Wiesenfeld, with the majority holding that this arrangement violated the due process clause of the Fifth Amendment. Kahn was rather similar. Under Florida law, widows (as well as persons with certain disabilities) were entitled to a $500 property tax exemption, but widowers were not. On this occasion, the Court ruled by a majority of 6-3 against the widower. The majority reasoned that single women, and widows in particular, faced greater difficulties than single men in securing employment, and this justified the differential treatment. Justice Brennan dissented (joined by Justice Marshall), reiterating his belief that gender discrimination should be subject to strict scrutiny.
Men may have been the direct victims of discrimination in Wiesenfeld (where the arguments can be heard at https://www.oyez.org/cases/1974/73-1892) and Kahn (https://www.oyez.org/cases/1973/73-78), but Ginsburg approached both cases as illustrating official policies that discounted the value of women’s gainful employment. Women’s work, she said, was seen as being of no more than secondary value for the family. Those policies put women “not on a pedestal but in a cage.” She adopted the same approach in Coker v Georgia 433 U.S. 584 (1977) where the Court held that the death penalty for the rape of an adult woman was such grossly disproportionate punishment as to violate the Eighth Amendment. Ginsburg filed an amicus brief on behalf of a group women’s and civil rights organisations supporting abolition of the death penalty for rape. Her main argument was that the designation of rape as a capital offence reflected the archaic belief that a woman was the property of her father or husband. Rape was therefore seen as a crime against property rather than a crime against the person of victim. She was questioned about this brief during her Senate confirmation hearing in 1993 by a senator who wanted to probe her attitude to the death penalty more generally. She responded by urging him to read the brief which would show that it was solely about punishing rape. As commentators later noted, the brief was very carefully and narrowly crafted, and did not address any broader abolitionist arguments.
Ginsburg the advocate therefore remains quite an inspirational figure. She believed strongly in the socially transformative power of the law, and she refused to be discouraged by occasional setbacks. She had a passionate commitment to advancing gender equality and she knew that it would take much time, persistence and effort to achieve her goals. Legal change, including change designed to protect and advance individual rights, should ideally be effected by legislators. But, in a constitutional democracy courts can also be powerful engines of change. This is particularly true of the Supreme Court in the United States where the federal constitution is virtually impossible to amend. (As it happens, in Frontiero three justices refused to join the plurality opinion because, they said, they did not wish to pre-empt the Equal Rights Amendment that had recently been approved by Congress and that would probably solve the problem at hand. Of course, as we now know, that Amendment never received the support necessary under the Constitution to become law). Ginsburg therefore believed strongly in the power of litigation and in high quality written and oral advocacy to generate fundamental change, and for the most part that belief proved to be well founded.
I mention Ginsburg the writer because, since her death, some have noted, with a mixture of surprise and amusement, that she once attributed her remarkably clear and precise writing style to the influence of Vladimir Nabokov. He, rather unfortunately, is commonly associated with just one of his works, Lolita, which might nowadays be regarded as pornographic or even a work of child pornography. Leaving that aside, he was a very fine English prose stylist. Although born in Russia, he was brought up speaking and reading three languages: Russian, English and French. Some time after moving to the United States, he was recruited by Cornell University where he taught Russian and European literature. Ginsburg was a student of his while an undergraduate at Cornell in the early 1950s. When later asked in an interview if she had kept in touch with him, she said that she had not, because after the success of Lolita he had moved to Switzerland to catch butterflies. This was true. Nabokov had a strong interest in entomology and had studied zoology at Cambridge as an undergraduate. And he did apparently spend much of his retirement at Montreux in Switzerland hunting butterflies there and elsewhere.
The interview to which I am referring was one of a series conducted some years ago by Bryan A Garner with US Supreme Court justices about legal writing. Garner is, by any standards, the doyen of legal writing (and, indeed, of writing generally) whose many books include The Elements of Legal Style and Garner’s Modern English Usage. He is currently editor-in-chief of Black’s Law Dictionary. Those interviews may still be viewed on http://www.lawprose.org (click on “videos” under “Bryan Garner”). Ginsburg stressed the values of clarity, precision and brevity and said that the opening paragraph of a judgment should read like a press release so that the reader immediately knows what the case is about. This is evident in some her opinions already mentioned, such as Timbs v Indiana 586 U.S. – (2019) and United States v Virginia 518 U.S. 515 (1996). Incidentally, the extended interview with Chief Justice John Roberts is also well worth watching. He is a fine writer and had an extensive practice as Supreme Court litigator before being appointed to the bench. He has much of interest to say on legal writing and how he went about researching and preparing written submissions for the Supreme Court while he was in practice. One could say that he has good writing in the blood, in the sense that he clerked for Justice Rehnquist who, in turn, clerked for Justice Robert H. Jackson who is widely regarded as the best writer ever to sit on the Supreme Court.
Justice Ginsburg, like other members of the Supreme Court, occasionally gave lectures and addresses at universities in the United States and elsewhere. But she was often at her best when in public conversation with leading constitutional law scholars, and some of these have been posted on the internet. I particularly commend one such conversation with Professor Kenji Yoshino of NYU Law School, dating from 2018: http://www.law.nyu.edu/news/remembering-justice-ruth-bader-ginsburg. Hopefully, we will one day see Kenji himself on the Supreme Court.