For non-lawyers, such political grades ascribed to judges by outsiders might signal personal penchants rather than an intellectually honest approach to hard legal questions. Deemed the most important woman lawyer in the history of the Republic, Ginsburg did urge courts to draw a once-novel conclusion about the Fourteenth Amendment to the Constitution, which forbids government from deny[ing] to any person within its jurisdiction the equal protection of the laws: that it should operate to stop arbitrary laws based on gender.
Note that person, equal, and protection are all terms that the Constitution does not explicitly define. Absent a constitutional amendmentwhich takes an affirmative vote of two-thirds of both houses of Congress and ratification by three-quarters of the statesthese words are among many in the Constitution that the Supreme Court must ultimately define. (Congress can provide legislative definitions, but the Court can strike those down.) Because the constitutional text is vague, for many years the Equal Protection Clause was read to tolerate laws that effectively deprived women of the same opportunities men enjoyed in all realms of public life. That narrow, male-only reading of the Constitution allowed the government to ban women from working as lawyers or bartenders, for example. It prevented women from serving on juries or lifting more than 15 pounds on the job. Through her work as a lawyer and jurist, Ginsburg prompted the Supreme Court to read the Equal Protection Clause to constrain arbitrary legal constraints on people of all genders.
Is this a radical, leftist idea? Would a more conservative approach have confined the meanings of person, equal, and protection to the prevailing understanding of those terms in 1868, when the Fourteenth Amendment was ratified amid post-Civil War Reconstruction? Some judges, lawyers and scholars would argue that only the original public meaning is relevant even today. But in 1868, Webster defined the word protection to include numerous meanings, including [t]he act of protecting or preserving from evil, injury, or annoyance, as well as a slew of synonyms: Preservation; guard; shelter; refuge; security; safety. Which of these would a conservative judge pick? Which would a liberal one choose? The fact that this exercise doesnt fit neatly into political definitions of liberal and conservative is something Justice Ginsburg acutely understood.
You probably know what Im getting at here: Many peopleeven some with a nuanced understanding of legal and constitutional interpretationargue that good judges do not read anything into the Constitution, but stick to its plain language (so-called textualists or originalists), and bad judges treat the document as a blank slate on which to craft a wish list for social reform (so-called living constitutionalists). Justice Ginsburg defied this false dichotomy by routinely applying conservative analytic principles in the service of causes that might be considered politically liberal. Yet troublingly, this false dichotomy has become de rigueur in our national conversation about presidential candidates and potential Supreme Court picks. It is corrosive.
For Ginsburg, adherence to procedure, principles of federalism, judicial independence and ensuring that government does not wield arbitrary power over regular people were hallmarks of her jurisprudence. This list is not stereotypically progressive. If anything, it has marks of conservatism.
On what remains perhaps the most sensitive constitutional question of our time, whether the Constitution protects against governments interference in a womans decision to medically terminate a pregnancy, Justice Ginsburg was critical of the Courts decision in Roe v. Wade, which lodged abortion rightsrather precariously, it turns outas a matter of privacy under the Due Process Clause of the Fourteenth Amendment. For her, it was more about gender equality under the Equal Protection Clause.
Although both due process and equal protection appear in the Fourteenth Amendment, due process has its roots in English common law, dating as far back as the Magna Carta of 1215. The notion is that the government cannot take someones life, liberty and property without fair notice and a hearing. But the Constitution doesnt specify protections for numerous liberties that most Americans would assume are bound up in the idea of freedom from arbitrary confinement. So the Supreme Court long ago identified certain basic rights as nonetheless protected under the Due Process Clause, including the right to decide ones own medical care and to raise children according to ones own values and not the dictates of the government. Its this concept of substantive due process that undergirds Roe.
By contrast, equal protection is a uniquely American standard that was designed to stop states from discriminating against formerly enslaved Black people. Ginsburg perceived equal protection as a more natural means of ensuring a womans ability to keep government out of her personal medical decisions relating to the female reproductive system. Ginsburg also feared that Roe went too fast for the public which, ironically, had been steadily moving toward legalizing abortion through state legislatures, not the courts. The Court ventured too far in the change it ordered in Roe, she wrote in a 1985 law review article.
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On a range of other cases, Justice Ginsburg cast votes that were not decidedly liberal, and in fact might have gone differently had she been an elected politician and not a judge with life tenure.
Consider, for example, Republican Party of Minnesota v. White, in which Ginsburg in 2002 dissented from the majoritys decision that struck down, on First Amendment grounds, a Minnesota canon of judicial conduct that barred candidates for elected judgeships from publicly expressing their political views. Like Justice Scalia, who wrote the majority opinion, Justice Ginsburg was a reliable defender of First Amendment rights, writing numerous majority opinions. But in White, she took the position that candidates for elected judgeships must sacrifice certain constitutional rights if they are to preserve another essential bulwark of constitutional government, i.e., [t]he guarantee of an independent, impartial judiciary. For Ginsburg, [u]nlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. (To be sure, Justice Ginsburg stoked controversy when she publicly expressed concerns about Donald Trumps possible election in 2016.)
Justice Scalia took direct aim at Ginsburg in his opinion, expressly rejecting her resort to the notion that the First Amendment provides less protection during an election campaign than at other times. But Ginsburgs emphasis on judicial restraint, favoring social change through the legislature rather than through the courts, is hardly a touchstone of liberalism. One could argue that her defense of judicial independence is no less an example of classic conservative jurisprudence than Scalias insistence on unfettered free speech. The unabashedly conservative Justice Neil Gorsuch has likewise insisted that the Constitutions framers charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes.
In a 2019 case called United States v. Sineneng-Smith, as well, Ginsburg wrote an opinion for a unanimous Court reversing a Ninth Circuit ruling that a federal statute making it a felony to encourage entry of aliens into the United States violated the First Amendment on free speech grounds. The case arose from a conviction of a California-based immigration consultant who was prosecuted and convicted under the law. Despite her strong support for First Amendment and immigrant rights, Ginsburg wrote that the Ninth Circuits radical transformation of this case goes well beyond the pale.
Also in 2019, she voted with conservative Justices Thomas, Samuel Alito and Brett Kavanaugh to reject a criminal defendants argument that his period of supervised release cannot be paused during his detention over a new criminal offense, concluding that pretrial detention does not qualify as imprisonment within the meaning of federal law. Gorsuch joined Justices Stephen Breyer and Elena Kagan in dissent, charging the majority with misconstruing the law and creating needless uncertainty and unfairness. Court watchers were surprised by the ideological breakdown.
Just this year, Ginsburg joined Justice Kagans majority opinion in Kelly v. United States, which reversed the fraud convictions of two associates of former New Jersey Governor Chris Christie in connection with their closure of several lanes of the George Washington Bridge in retaliation against a local mayors refusal to endorse Christie for re-election. Kagan reasoned that the scheme did not aim to obtain money or property so as to trigger the criminal fraud laws. Chris Christie, of course, is a Republican.
Ginsburg also sided this year with the conservative wing of the Court in endorsing the construction of the Atlantic Coast Pipeline beneath the Appalachian Trailto the chagrin of environmentalistsas well as the Trump administrations policy of expediting deportation of people seeking asylum in the United States. In the latter case, Department of Homeland Security v. Thuraissigiam, Ginsburg again opted to reverse a decision of the famously liberal-leaning Ninth Circuit.
Consider, too, Ginsburgs adherence to principles of federalismthe view that states autonomy is essential to confining the grandiose power of the federal government. This, again, is an approach to constitutional interpretation that typically leans conservative. In BMW of North America, Inc. v. Gore, she penned a dissent to the majoritys 1996 decision to strike down a $2 million punitive damage award that had been upheld by Alabama courts on due process grounds. The Court, she wrote, unnecessarily and unwisely venture[d] into territory traditionally within the States domain.
Somewhat remarkably, as a D.C. Circuit judge Ginsburg dissented from that courts majority opinion striking down the Ethics in Government Act, a statute passed in the wake of the Nixon Watergate scandal that authorized appointment of a prosecutor outside the presidents chain-of-command to look into alleged presidential wrongdoing. On appeal, a 7-1 majority of the Supreme Court in 1988 adopted her view in Morrison v. Olson, upholding the law (which eventually expired). Six years later, Independent Counsel Kenneth Starr was appointed under the law for purposes of investigating President Bill Clinton, the man who put Ginsburg on the Supreme Court. Clinton was later impeached based on Starrs report of his findings. Famously, Justice Scalia dissented in the Morrison case.
Perhaps in an ironic twist, it was Joe Biden as chairman of the Senate Judiciary Committee who argued in his questioning of Ginsburg that judges ought to lead society in some circumstances. As a Supreme Court nominee being interviewed for the job, then-Judge Ginsburg demurred. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians, she said.
The Senate should heed Justice Ginsburgs exquisitely blended strains of legal conservativism and liberalism as they contemplate who has the intellectual rigor, honesty and temperament to replace her.
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Opinion | The Surprising Conservatism of Ruth Bader Ginsburg - POLITICO