by Irin Carmon
“She looked at me like I was crazy,” he recalls. Hershovitz boldly slid a draft memo across the table.
Art Lien
RBG looked down at the page. “Now tell me what fantasy baseball is again?” she asked. She took out her pen to make some corrections. In the end, as Hershovitz remembers it, the memo read, “Dear Sam, I understand that this week my clerks beat your team by a score of 10 to nothing. We expect more, even from the junior justice.”
“Anyway, hope springs eternal. If I lose today, there’s hope that tomorrow will be better.”
—RBG, 2012
RBG NEVER ESPECIALLY WANTED to be a great dissenter. She prefers not to lose, which is what, by definition, has happened to judges who write to dispute the court’s majority opinion. Dissenters can leave clutching their dignity, gloriously unsullied by compromise. When Scalia dissents, he pours gasoline on the majority, lights a match, and stomps on the ashes. You can easily imagine his deep-throated chuckle to himself each time he crafts a zinger and calls the other justices’ opinions “irrational” and “utter nonsense.”
“I think when it’s wrong,” Scalia says, “it should be destroyed.” But no one, probably least of all Supreme Court justices, changes her or his mind after being called an idiot. Actually changing the law means getting to five votes.
But sometimes, it’s time to give up on persuading anyone else behind the scenes. It’s time to get mad and let everyone else know about it. There are dissents that rose above their times, like in the Dred Scott case in 1857, when seven justices ruled that people of African descent were property and could never be citizens, or in 1896’s Plessy v. Ferguson, where the majority upheld the doctrine of separate but equal. Those dissenters stopped speaking to their fellow justices and started speaking to the public, hoping the future would vindicate them.
The case that helped turn RBG into a great dissenter was one she never liked talking about. Few of the justices relished discussing Bush v. Gore, the surreal and bitter case that put the fate of the U.S. presidency in their hands. “It was described as a circus, but that is an insult to the discipline of circuses,” said Theodore Olson, who represented then-Texas governor George W. Bush before the Supreme Court. And his side won. That fiasco culminated on December 12, 2000, with the court halting Florida’s vote recount and effectively handing Bush the presidency.
The Supreme Court could have chosen to stay out of the Florida recount case and left it to the state courts, which is what RBG voted to do. Instead, the highest court hurried in twice. The second time, with everything at stake, the nine justices wrote six opinions. In an argument almost no one took seriously at the time and few have since, Kennedy and O’Connor’s majority opinion said a recount would violate the Fourteenth Amendment’s equal protection clause. It would supposedly “value one person’s vote over that of another.” The same words in the Constitution that had been used to desegregate schools, and which RBG had used to enshrine women’s equality, were being used to shut down democracy.
There were four dissents. RBG’s was calm and technical. “Federal courts defer to state high courts’ interpretations of their state’s own law,” RBG wrote. “This principle reflects the core of federalism, on which all agree.” Read closely, it very gently suggested the majority was being a bunch of arrogant hypocrites, who had checked their commitment to states’ rights at the door when it served the Republican party. According to Jeffrey Toobin’s Too Close to Call, RBG’s dissent was initially a little less genteel, with a footnote alluding to the possible suppression of black voters in Florida—an actual equal protection violation. “The footnote sent Scalia into a rage, and he replied with a memo—in a sealed envelope, to be opened only by Ginsburg herself—accusing her of ‘fouling our nest’ and using ‘Al Sharpton tactics,’” Toobin wrote. There was no such footnote in the final version.
RBG just wanted to move on. She later insisted that what she delicately referred to as the “December storm over the U.S. Supreme Court” was only a passing blight. “Whatever the tensions were that day,” RBG said, it was time to come together and show that “all of us really do prize this institution more than our own egos.”
RBG has never been very interested in drawing attention to herself without a good reason. That’s how you know that when she does send up smoke signals, something has gone very wrong.
LONELY ON THE BENCH
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In the span of three miserable months in 2005, RBG lost her friend Sandra Day O’Connor as a colleague and forever lost the man she would always fondly call “my chief.” O’Connor announced in July she would retire at the relatively young age of seventy-five. She said she wanted to spend more time with her husband, who had been diagnosed with Alzheimer’s. Then Rehnquist died of cancer on September 3, just before the new term was to begin.
President George W. Bush now had two vacancies to fill. He swiftly renominated the fifty-year-old John G. Roberts, his initial choice for O’Connor’s seat, for chief justice. Replacing O’Connor would take longer. Bush hastily withdrew the nomination of White House counsel Harriet Miers, who was broadly considered unqualified. He settled on Appeals Court judge Samuel Alito. Suddenly, RBG was a member of a court that had just taken a sure step to the right, a triumph for conservatives that was decades in the making. They had seethed watching several Republican appointees, including Stevens, Souter, and O’Connor, turn out to be moderate jurists. With Bush’s picks, the plan of conservative activists to undo what they saw as the excesses of the court in the sixties and seventies was back on track.
RBG was once again stuck in an all-male environment. At the dawn of the new term in the fall of 2006, TV newsman Mike Wallace reminded RBG in that in her confirmation hearings, she had said she expected to see three, four, or even more women on the court with her. “So, where are they?” he asked.
“Sadly they are not here,” RBG replied bluntly. “Because the President has not nominated them and the Senate has not confirmed another woman. You would have to ask the political leaders why a woman was not chosen.”
She had the same answer when asked by Linda Greenhouse of the New York Times about the fact that in that same term, the number of female clerks fell to single digits for the first time in more than a decade. Only seven women would be among the thirty-seven clerks, and two of them were working for RBG. Why not ask a justice who had hired no women? suggested RBG. That would be Alito, Souter, Scalia, and Thomas.
Eleanor Davis
Her message was clear: The job of representing women should never have fallen to one woman. Being the only woman on the court brought back grim memories of being something strange and singular at law school. History wasn’t supposed to go backward, but once again, women were a “one-at-a-time curiosity, not the normal thing,” in a place of power. That had damaging implications for all women. Girls wouldn’t be able to imagine themselves on the court, and the diversity among women would be blotted out. Sharing the bench with O’Connor, RBG said in an interview in January 2007, had meant that people could look and say, “Here are two women. They don’t look alike. They don’t always vote alike. But here are two women.” She added, in a rare moment of vulnerability—or maybe pointedness—“The word I would use to describe my position on the bench is ‘lonely.’”
THE POOR LITTLE WOMAN
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RBG joined the court feeling unusually optimistic about abortion. Only a year earlier, her new colleagues, in Planned Parenthood v. Casey, had reaffirmed the core of the abortion right recognized in Roe v. Wade. RBG thought that decision wasn’t perfect, and that the restrictions it blessed would burden poor women. But it could have been worse, and at least Casey explicitly recognized women’s rights and spoke about their equality: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
In 1993, RBG believed technology would take care of the rest of the conflict over abortion, th
anks to newly approved pills that induced abortion early in pregnancy. “More and more I think that science is going to put this decision in women’s hands,” she said in an interview. “The law will become largely irrelevant.” That’s not at all what happened. Like almost everything else surrounding abortion, that medication became subject to a maze of restrictions blocking women’s access to it. The right hadn’t been able to ban abortion entirely, but it had found a way to make it ever harder to access, one seemingly benign regulation at a time. All this was seemingly enabled by the Casey decision, which said states could restrict abortion as long as they didn’t put an “undue burden” on a woman’s right to choose abortion. The law had stayed very much relevant.
Within three years of RBG’s appointment, Bill Clinton, surrounded by women who had had tragic pregnancies, announced he would veto the so-called Partial-Birth Abortion Act. The law was pure demagoguery. There was a real abortion procedure some doctors used, rarely and later in pregnancy than the vast majority of abortions are performed, and banning it wouldn’t change the number of abortions. It would, however, provide a platform for the anti-abortion movement to pelt America with gruesome images.
At former Chief Justice Rehnquist’s funeral in 2005 Getty Images/Win McNamee
Thwarted at the federal level, the movement went to sympathetic states to pass similar “partial-birth abortion” bans, which doctors protested were unconstitutional. “Whatever this particular ban does, it certainly can’t be argued that it is passed in the interests of the health of the woman,” RBG said at oral argument when the Supreme Court heard a challenge from a Nebraska doctor in Stenberg v. Carhart. In fact, the majority concluded the law made women less safe. “The State may promote but not endanger a woman’s health when it regulates the methods of abortion,” Breyer wrote for the majority, including O’Connor and Souter, striking down the law. RBG wrote separately to point out that the law was pointless on its own terms and to call it out for what it was: a long-term strategy to overturn Roe. Kennedy, who found the procedure grotesque, wrote a livid dissent.
All bets were off when George W. Bush triumphantly signed a new federal “partial-birth abortion” ban into law in 2003. Almost nothing in the law or the state of medical knowledge had changed since the court had rejected the concept the first time around. But the court as well as the presidency had. Back in 1992, in Casey, the plurality had agreed that Pennsylvania’s law requiring women to notify their husbands they were having an abortion perpetuated traditional notions of male authority and would endanger women in abusive relationships. Only one lower court judge out of four who considered the spousal notification provision had deemed it constitutional. His name was Samuel Alito.
By the time the challenge to the federal “partial-birth abortion” ban reached the Supreme Court, in 2007, O’Connor was gone and Kennedy, as the remaining swing vote, controlled the court. And Kennedy was still angry about this particular abortion procedure. RBG had said the law did nothing to improve women’s health or protect unborn life. Kennedy assumed it did. Writing for the majority in Gonzales v. Carhart, Kennedy gave voice to a new justification for abortion restrictions being pushed by the anti-abortion movement: protecting capricious women from themselves and from doctors who might lie to them.
“While we find no reliable data to measure the phenomenon,” Kennedy wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” By banning the procedure, if not all later abortions, Kennedy said he thought women might even be talked out of having an abortion altogether. Dahlia Lithwick wrote in Slate that Kennedy’s “opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they’d all refuse to undergo it. Since they aren’t, he’ll decide for them.”
Kennedy’s opinion insulted RBG to her core. It undermined the work she had done to force the law to recognize women as fully and equally capable of charting their own destinies. Instead, it imagined “the poor little woman, to regret the choice that she made,” as RBG later put it. In her dissent, which she summarized from the bench, RBG reminded Kennedy that his own decisions on abortion and gay rights had claimed that “our obligation is to define the liberty of all, not to mandate our own moral code.” She even broke her rule of collegiality by noting icily that the court was “differently composed than it was when we last considered a restrictive abortion regulation,” a not so veiled reference to Alito.
It was going to be a long term.
EXCERPT FROM RBG’S DISSENT IN GONZALES V. CARHART
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As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” “There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.”
The 1992 decision in Planned Parenthood v. Casey, coauthored by Kennedy, O’Connor, and Souter, affirmed a woman’s right to end her pregnancy before the fetus was capable of living outside the womb, but said the state could pass restrictions that did not place an “undue burden” on her.
RBG is quoting from Hoyt v. Florida, the 1961 case about women being exempted from juries that was on her Women’s Rights Project hit list.
Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” 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.
Here, RBG is pointedly reminding Kennedy of the words he signed onto in Casey, from which he was now departing.
To RBG, abortion rights are about women’s equality, not “privacy,” a concept the court had slowly begun to recognize too. This is the most direct and sustained statement of this idea in a Supreme Court opinion.
Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D & E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
Unable to win majority support, over time anti-choice advocates began to justify restrictions on abortion as protecting women and not just the unborn. Kennedy’s opinion reflects the influence of this new anti-abortion argument.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.
RBG is calling out the rationale for prohibiting abortion as “protecting women.” She says that this kind of anti-abortion argument reflects and reinforces the very stereotypes about women’s decision-making
capacity and social roles that the court struck down as unconstitutional in sex discrimination cases—including in ones RBG argued herself. Once again, women are being told not to worry their pretty heads about it, this is for their own good.
Though today’s majority may regard women’s feelings on the matter as “self-evident,” this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.”
. . . In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives.
There’s no fooling RBG. She sees that the point of targeting so-called partial-birth abortions is to eventually go after all abortions the court protects.
COUNTED OUT AGAIN
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Nothing prepared Lilly Ledbetter for the anonymous note left in her mailbox one evening, decades into working at the Goodyear Tire plant. Not the man who had told her he took orders from a bitch at home and wasn’t about to take them from a bitch at work, or the boss who told her she could improve her evaluation by meeting him at the Ramada Inn. Ledbetter never found out who left the torn piece of paper with the tire room managers’ salaries. The men each made around fifteen thousand dollars more than she did. That’s when Ledbetter finally went to court.