Wednesday, September 23, 2020

The Celebrated, if Not Notorious RBG

Mark Graber


Lee Epstein, Williams Landis, and Richard Posner published a series of essays several years ago documenting that the Roberts Court was the most pro-business bench in contemporary American history.  That the more conservative justices on the Roberts Court gave historically strong support to business interests is not surprising.  General agreement exists that John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito were far more conservative than past Republican appointees.  What was surprising, perhaps, is that the “liberals” on the Roberts Court were not only more pro-business than previous Democratic appointees, but they also were more pro-business than past Republican appointees.  Justice Ruth Bader Ginsburg was no exception.  In cases of sufficient prominence to be covered by the New York Times, Ginsburg was more likely to take a pro-business position than William Rehnquist.

Scholars questioned how Epstein, Posner, and Landis measured judicial support for business, but their data capture important dimensions in Justice Ginsburg’s jurisprudence absent in the paeans celebrating her remarkable career. Ginsburg was never known as a champion of unions or of working persons.  Labor may have lost a vote this week, but they did not lose a voice.  Proponents of positive rights to basic necessities looked elsewhere for advocates.  Ginsburg was comfortable with the basic principles underlying the New Deal/Great Society regime when they justified judicial activism and, gender equality aside, when they did not.  The too common-description of her as “notorious” better captures upper-middle class liberal conceit than Ginsburg’s career.

Ginsburg was Carrie Chapman Catt rather than Emma Goldman.  Catt and her political allies presented themselves within the mainstream of American thought on every matter other than women’s suffrage.  Americans by granting women the right to vote would live up to rather than abandon their best constitutional principles.  Goldman presented herself as a radical on all issues from labor rights to the relationship between men and women.  Her causes could triumph only if American constitutional values were substantially reformed.  Ginsburg presented gender equality as being as American as the Declaration of Independence, baseball, apple pie and, perhaps, weak labor unions.  She was a tireless litigator and lobbyist, who scorned more radical tactics such as chaining herself to the White House fence, hunger strikes or rioting.

Ginsburg was Carrie Chapman Catt rather than Emma Goldman in her persona as well as her constitutional vision and politics.  Catt and her political allies portrayed themselves as members of high society.  Their personal lives were convention to the point of introducing themselves, at times, as Mrs. [insert name of husband].  Goldman was a bohemian.  She delighted in the avant-garde and was "notorious" (that word) for having public affairs with leading radicals of the progressive era.  Ginsburg had a longstanding happy marriage, raised children and went to the opera with Justice Scalia. A bohemian she was not.

Ginsburg’s remarkable achievement was making gender equality a central pillar of American constitutional liberalism.  When she began her career, claims that the Constitution mandated gender equality were off-the-wall.  As of 1970, Chief Justice Salmon Chase’s dissent without opinion in Bradwell v. Illinois (1872) was the only instance in Supreme Court history when a justice had cast a vote declaring unconstitutional a law that discriminated against women [errata--see below].  By 2020, gender equality was a constitutional given.  Even strict constitutional originalists were tying themselves into knots explaining why constitutional protection for women was at the heart of the Fourteenth Amendment. 

Ginsburg mainstreamed constitutional gender equality without making any significant alterations to American constitutional liberalism.  Her two most important opinions in cases not involving gender discrimination, her dissents in Shelby County v. County (2013) and NFIB v. Sebelius (2012), both masterfully employed the central tenets of Great Society/New Deal constitutional liberalism when defending the constitutionality of the Voting Rights Act of 1965 and the Affordable Care Act of 2010.  Those were and remain the best exemplars of constitutional liberalism in the first part of the twentieth-first century, even as they articulated basic constitutional understandings put in place by Franklin Roosevelt, Lyndon Johnson and the Warren Court. 

Ginsburg evolved with American constitutional liberalism.  Progressive constitutionalists over the past half century have taken on new commitments (same-sex marriage) while discarding others (rights to basic necessities). Ginsburg’s voting mirrored these developments.  She consistently supported the rights of sexual minorities while saying little about the constitutional status of so-called positive rights.  Justice Clarence Thomas is often out in front of conservative constitutional opinion.  Neither Ginsburg nor any other liberal justice staked out a new constitutional agenda for progressives to pursue.  Ginsburg, Kagan, Breyer, and, with some exceptions, Sotomayor have been in the liberal mainstream rather than at the forefront of contemporary constitutional progressivism.  They are always on time to the party, never early or late.  Their votes more often reflected Democratic Party platforms than inspired Democratic Party platforms. 

Zechariah Chafee, the great free speech advocate of the first half of the twentieth century, concluded a defense of his conduct before the Harvard Board of Overseers by asserting, “My sympathies and all my associations are with the men who save, who manage and produce.  But I want my side to fight fair.”  Carrie Chapman Catt and Ruth Bader Ginsburg might have argued similarly, substituting “persons” for “men.”  Denying socialists the right to protest World War I, women the right to vote, and women the right to participate as equals in the worlds of politics and work is fundamentally unfair by the standards of those who save, who manage and produce in the United States.  These propositions, which seems so obvious today, are obvious today only because of the extraordinary efforts such persons as Chafee, Catt and Ginsburg made in their efforts to compel Americans to live up to the best understandings of American ideals.  Their lives deserved to be celebrated and passing mourned by all persons who share Ginsburg’s Dworkian commitment to making American constitutionalism “the best it can be.”

We should nevertheless acknowledge that there is nothing “notorious” or revolutionary about demands that the United States play by the official rules mandated by those “who save, who manage and produce.”  Those who do not enjoy the luxury of being able to save, who lack the control over their lives to manage, and are rarely given credit for what they produce might have different notions of what constitutes a fair fight or whether justice is best secured by making the Constitution of the United States the best it can be.  The Chafees, Catts and Ginsburgs of this world have done far more good than the Emma Goldmans and others who embraced her wholesale rejection of liberal values.  Ruth Bader Ginsburg made the United States and world a far better place through her efforts to make gender equality a core commitment of American liberal constitutionalism.  Nevertheless, by pretending Chafee, Catt and Ginsburg were notorious, and implicitly treating our reformist impulses as revolutionary, we risk erasing Goldman and her ilk from our history and their acute critique of reformist liberalism from our consciousness.

UPDATE and ERRATA: Thanks to David Bernstein for reminding me that Justices Murphy, Douglas and Rutledge dissented in Goeseart v. Cleary (1948) on the ground that the state law forbidding women from tending bar unless they were the spouse or daughter of the male owner was unconstitutional gender discrimination.


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