If you are looking for someone to suggest that Justice Ruth Bader Ginsburg ought to step down from the United States Supreme Court so that a Democratic president can appoint her successor, you are looking in the wrong place. At 82, she still works out regularly with a personal trainer and is probably in better physical shape than many Daily Kos readers. Her mental abilities are well demonstrated in her questions during oral arguments and her written opinions. We still need her experienced voice on the court, even if it is only in dissent.
A report on Justice Ginsburg for People for the American Way, includes this:
Justice Ginsburg has emerged as a crucial and powerfully eloquent voice for protecting the legislation produced by the civilizing movements of our time. She has also continued to spell out a constitutional vision that includes robust democracy, an inclusive economy, and ample civil liberty for all of us.
As an impassioned and thorough dissenter, Ginsburg continues a visionary tradition that goes back to Justice William Johnson, who was nominated to the Court by President Thomas Jefferson in 1804 and launched the practice of filing dissenting opinions; Justice John Marshall Harlan, whose dissenting opinion in Plessy v. Ferguson (1896) insisted that Jim Crow segregation was unconstitutional because “in view of the Constitution, in the eye of the law, there is no superior, dominant, ruling class of citizens”; and Justice Oliver Wendell Holmes, whose prescient dissent from the fateful Lochner decision, which struck down wage and hour legislation (1905), argued that the case was “decided upon an economic theory which a large part of the country does not entertain.” Like her constitutional forerunners, Ginsburg painstakingly demonstrates how an errant majority has trampled constitutional justice and equality.
Linda Hirshman’s book, Sisters In Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, takes a look at the careers of the first women on the court.
Sisters In Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World
by Linda Hirshman
Published by Harper
September 1, 2015
416 Pages
In Sisters In Law, Linda Hirshman follows the careers of both women as they graduate from law school and pursue work in the legal field. Sandra Day O’Connor is offered a position as a secretary at a San Francisco law firm, but decides instead to work for the district attorney in San Mateo County for free, until funds to pay her salary become available.
The daughter of an Arizona rancher, Sandra Day attended Stanford University and received her legal degree in 1952 from Stanford Law School (where a fellow classmate was William Rehnquist). After her stint with the DA’s office in San Mateo County, she moved into a position with the Arizona Attorney General’s office as an assistant AG, the first woman to do so.
An appointment to the Arizona State Senate led to her being re-elected and becoming the first female majority leader. In 1973 she was elected as a judge for the Maricopa County Superior Court, where she presided for six years until named to the Arizona State Appeals Court. That’s where she was when Ronald Reagan nominated her for the Supreme Court in 1981.
I really tried to accept Hirshman’s seemingly favorable opinion of Justice O’Connor, but found too much information in the book to achieve that. Hirshman details the life of a white middle-class Republican woman, very involved in the Junior League and known more for her entertaining and cooking skills than for her sharp legal mind. The book details her decisions in cases involving abortion-enabled states like Texas to write and enforce TRAP (Targeted Regulation of Abortion Providers) laws under the rule of “undue burden” that she created. And she did destroy what credibility she had left with her ruling in Gore v. Bush.
But those decisions were far in the future when, like so many other women, I was thrilled with her appointment to the Supreme Court. Finally, after more than 200 years, it was decided that a woman could indeed handle abstract concepts at the highest level. She was the perfect nominee for the position of FWOTSC (first woman on the Supreme Court) as she “slyly called herself.” Tall, blond, attractive, very social and engaging, she was unanimously approved by the Senate. That she was a conservative did not matter so much in those days—as a nation we had not yet become so polarized that a political label disqualified a Supreme Court candidate. And many supposedly conservative justices became far more liberal once they were on the bench.
Meanwhile, as I wrote last week, Ruth Bader Ginsburg was cutting her own path to the court. After transferring from Harvard Law School and graduating from Columbia Law School:
She spent two years clerking for Federal Judge Edmund L. Palmieri of the Southern District of New York, before learning Swedish and going to Sweden to study civil procedure for a book she co-authored with Anders Bruzelius.
When she returned, she worked as a professor at Rutgers School of Law from 1963 to 1972, when she returned to Columbia Law School after being offered the opportunity to become the first woman tenured professor. It was while she was teaching at Columbia that she co-founded the Women’s Rights Project at the American Civil Liberties Union.
She argued cases before the Supreme Court that expanded the rights of women under the 14th Amendment, and slowly chipped away at the long established gender roles that restricted both men and women. On April 14, 1980, President Jimmy Carter appointed her to the U.S. Court of Appeals for the District of Columbia Circuit. And on August 10, 1993, she was sworn in as an Associate Justice of the Supreme Court, with Bill Clinton proudly standing by.
Hirshman’s book makes clear that although the two women did respect each other and worked together as associate justices, they were not personal friends. They were “sisters” only in the law.
According to Hirshman, Justice O’Connor worked defense on women’s issues, preventing the Court from rolling back any of the rights that women had already achieved, while Ginsburg worked offense, continuing to push to widen the rights of women.
And yet, with the Planned Parenthood v. Casey decision, O’Connor applied a new standard under which a state could regulate, but not prohibit, a woman’s right to choose an abortion prior to fetal viability, as long as that regulation did not impose an undue burden on the woman.
All those restrictions are designed to steer women away from abortions; under O’Connor’s analysis anything short of making it impossible— driving women to coat hangers or foreign shores— is acceptable. Under Ginsburg’s robust vision of women’s lives, it is the unfettered right to make the decision that is central to a woman’s equality. Telling her what to do is the core violation.
It’s pretty easy to see from that excerpt where the author’s true sympathies lie. Further criticism of Justice O’Connor’s rulings is directed at their open-ended nature. Exactly what is an undue burden? It varied by case. In Casey, she found that it was not an undue burden for a woman to have to listen to a doctor tell her how dangerous an abortion was, or to have to endure a 24-hour waiting period, or for a girl to have to notify her parents, but it was an undue burden for a wife to have to tell her husband that she was getting an abortion.
Hirshman writes of the common-sense jurisprudence for which O’Connor became known:
Common sense— the practical wisdom of the common man— by definition requiring neither theory nor expertise, is an effective tool for allowing unexamined intuitions and prejudices into decision making.
O’Connor’s decision in Bush v. Gore is covered in the book, as well as her husband’s battle with Alzheimer’s Disease that led to her retirement from the court in 2005.
Although it may not seem it from the above, far more pages are devoted to the life and work of Ruth Bader Ginsburg than to Sandra Day O’Connor. This is not a “fair and balanced” book about these two women. There appears to be no desire to level the scales, but to tell the story of two very different women who made their way to the Supreme Court—and may have changed the world.