Conflict resolution through judicial edicts is a process that can help reshape and restructure a society. Landmark judicial decisions tend to impact the collective thinking of a community and push the process of social evolution in the desired direction. However, such extraordinary judicial decisions are invariably crafted by extraordinary jurists. US Supreme Court Justice Ruth Bader Ginsburg, who passed away on September 18, 2020 at the age of 87, was one such dazzling judicial mind.
During a sterling 27-year stint as an SC judge, she fearlessly espoused liberal-progressive causes and became famous for being a redoubtable defender of the rule of law, social justice, embracive equality and women’s rights. As a conspicuous member of the SC’s liberal quartet, she painstakingly redefined the parameters of various legal issues by dissenting from the majority and developing illuminating new paradigms about their just resolution.
An alumna of Columbia University, she was appointed Associate Justice of the SC by president Clinton in 1993 — the second woman ever to serve on the Court. Before joining the bench, she had already had the distinction of being the first tenured female law professor at Columbia. She had also co-founded the Women’s Rights Project at the famed American Civil Liberties Union (ACLU) and was one of its volunteer attorneys.
Ginsburg was an inveterate and ferocious dissenter: she had the courage to take the road less frequented boldly and unabashedly. The dissenting part of a judicial decision is of vital importance because it is, in effect, a piercing indictment of the majority view: it encapsulates the intellectual, factual and legal reasons that can subsequently be employed to modify or overturn the majority decision. A previous dissent could also be used to change or repeal a law via legislation. Likewise, a later decision may embrace the distinctive elucidation of the law put forth in the dissenting opinion to create a more tenable precedent.
Although her most celebrated case was US v. Virginia, 1996, in which she wrote the majority opinion and struck down all-male military academies, she was at her swashbuckling best in her numerous dissenting opinions. Three immediately come to mind. One, Bush v. Gore, 2000, whereby George W Bush impugned a Florida SC mandate for a manual ballot recount. The apex court granted his application, handing him the presidency on a platter! Visibly exasperated, Ginsburg’s dissenting opinion contained the uncharacteristically terse words: “I dissent”. Two, Ledbetter v. Goodyear Tire & Rubber Company, 2007, wherein the court voted 5–4 in favour of the company which was discriminating against the petitioner by paying her less than her male co-workers. Ginsburg formulated a roaring dissent, which subsequently became the basis of the Lilly Ledbetter Fair Pay Act of 2009. Three, the Shelby County v. Holder, 2013, in which the court looked into Section 4b of the Voting Rights Act of 1965, annulled “preclearance”, which required states to obtain approval from the AG or a three-judge panel in Washington before modifying voting requirements. This opened the door to racial discrimination in voting processes. Ginsburg dissented and opined that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Since the US SC’s founding in 1789, it has produced many exceptional legal minds like Justices Earl Warren, John Marshall, Louis Brandeis, William O Douglas and Hugo Black. However, Justice Ginsburg is the only woman among these titans. After the passage of the Lilly Ledbetter Act, president Obama sent her a framed copy of the act as a gift. He had it inscribed: “Thanks for helping create a more equal and just society.”
Published in The Express Tribune, September 26th, 2020.
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