Although there were many facets to Ruth Bader Ginsburg’s evolution as a cultural icon, the strength of her legacy as a U.S. Supreme Court justice rests in the power of her words in her written opinions.
The justice would not expect everyone to agree with what she said, only to understand why she voted in the ways that she did. Here are excerpts from a few of her important opinions.
“‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”
In some ways, Ginsburg’s entire career was preparation for her lead opinion in United States v. Virginia, a challenge to the male-only admissions policy at the Virginia Military Institute. Her work as a litigator in two sex discrimination cases laid the groundwork for the court’s 1996 decision that VMI’s policy violated the 14th Amendment’s equal protection clause. Virginia was unable to show the “exceedingly persuasive justification” required for its sex-based action, she said.
“A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of ‘We the People’ expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.'”
“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.”
Ginsburg’s dissent in this 2013 voting rights case, Shelby County, Ala. v. Holder, was one of her most forceful in her 27 years on the court. It reflected her deep sense of the nation’s history with voting discrimination, her disagreement with Chief Justice John Roberts Jr.’s statement that America has changed, and her respect for Congress’ findings that the heart of the 1965 Voting Rights Act—its requirement of federal preclearance for all changes to voting laws in regions with the most serious histories of discrimination—was still needed.
“As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s ‘control over her [own] destiny.’ Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
In public speeches and in abortion cases before the court, Ginsburg repeatedly emphasized what she believed was fundamentally at stake for women in challenges to the abortion right. Her comments in this quote came from her 2007 dissent in Gonzales v. Carhart in which a 5-4 majority upheld the federal “Partial-Birth Abortion Act.” The court, for the first time, approved a type of abortion ban that made no exceptions for the health of the woman.
Free Exercise of Religion
“The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. In sum with respect to free exercise claims no less than free speech claims, ‘your right to swing your arms ends just where the other man’s nose begins.'”
The end quote is not a Ginsburg original. She borrowed it from a 1919 Harvard Law Review article on free speech in wartime for another deeply felt dissent. In 2014, a 5-4 majority ruled in favor of the closely-held corporation, Hobby Lobby, whose owners challenged the inclusion of certain contraceptives in the women’s health insurance component of the Affordable Care Act. The owners claimed providing such insurance coverage violated their religious beliefs and the federal Religious Freedom Restoration Act. Hobby Lobby’s argument for an exemption from the law meant that thousands of its women employees, many who may not share the owners’ faith, would be harmed. The quote explains that our right to free speech, for example, does not extend to shouting fire in a crowded theater. There is a line where one person’s right to speak or exercise religion ends where it infringes or harms another person.
Separation of Church and State
“By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion…. As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content. The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity.”
In 2019, a 7-2 majority rejected the American Humanist Society’s arguments that a 32-foot cross on public land violated the First Amendment’s prohibition of the establishment of religion. Ginsburg, joined by Justice Sonia Sotomayor, wrote the dissent and the above comments. Ginsburg and Sotomayor often joined together in religion clause cases. They are the only justices of the nine who still adhere to the principle of a strong wall of separation of church and state. Now it’s only Sotomayor.