Wednesday, September 30, 2020
By Sarah Alshawish, Research Assistant and MIA/MPA Candidate at SIPA and LSE, and JoAnn Kamuf Ward, Director of the Human Rights in the US Project, Columbia Law School Human Rights Institute
Recent years have been marked by systematic US divestment in the United Nations (UN) and in the national institutions built to safeguard civil liberties, and civil and human rights. At the direction of Secretary Mike Pompeo, the US is unilaterally revisiting principles of the Universal Declaration of Human Rights (UDHR) with the aim of narrowly re-interpreting rights and creating a hierarchy that prioritizes property and religion, while rejecting a more robust framework that is grounded in international human rights treaties and agreements. This move reflects wider hostility towards global norms and institutions, and erases protections for women’s rights, LGBTQ rights, and immigrants, among others. At the same time, long-standing gaps in domestic human rights protections have been highlighted and exacerbated by disparities in COVID-19 infection rates, and renewed attention to the disproportionate use of force against Black communities. As these stark inequalities across diverse demographic communities illustrate, the need to strengthen human rights protections is urgent.
Coronavirus makes clear that racial and socioeconomic disparities are life-threatening. In the United States, the pandemic has had a greater toll on Black, Hispanic, and Indigenous communities, that have infection rates almost two to three times higher than that of White populations. While disaggregated data is not readily available, records that identify race show 21% of COVID-19 deaths are among Black individuals, who comprise 13.4% of the US population. Susceptibility factors such as widespread discrimination in the criminal justice system and incarceration, unequal educational and employment opportunities, and inadequate and unaffordable health care impact physical and mental health and well-being, and lead to chronic stress that further increases risk for infection and death.
Since the spring, a strong wave of organizing and protests has swept the nation. What protesters seek is change. For justice, equality, and transformation. Police killings are 2.5 times higher for Black men than for White men, and people of color make up over 60% of the prison population. George Floyd’s death prompted communities to demand change not only within the US justice system, but in how Black populations are treated in all areas of life. Demonstrations associated with the Black Lives Matter (BLM) movement rose throughout the country, with over 10,600 demonstrations between May and August. Black individuals have continued to be killed, and in late August, Jacob Blake was paralyzed by a police shooting. This week, protests are erupting in response to the grand jury’s decision regarding the killing of Breonna Taylor. This cycle of violence continues and full justice and accountability is elusive. In some impacted jurisdictions, reforms are made, but what is required is systemic change - change that places dignity and humanity at the center - and change that reckons with how America’s past got us here.
Instead, social fragmentation is fomented here at home through policies and rhetoric that evoke xenophobia, racism, sexism, and stoke fear and mistrust, repeatedly compromising human rights. Internationally, the US is largely disengaged. The current administration has forfeited its seat at the UN Human Rights Council and decreased its financial support from the United Nations. The Commission on Unalienable Rights Report has been criticized as “a global precedent for other nations looking to define human rights on their own terms.” These efforts are part and parcel of a project to minimize US accountability to human rights as defined under international law.
While the federal government has sought to undermine global norms by limiting human rights and civil liberties, there is more to the story. Across the country, state and local leaders in some jurisdictions have, independently and in unison, taken action that promote civil and human rights. We see a reckoning with the past in the removal of Confederate statues, and strides towards working with communities to address violence. Measures to protect healthcare coverage are essential to health and well-being and Mayors have urged the Senate to vote no on legislation that would rollback the Affordable Care Act. Some state and local leaders are also advancing women’s rights, LGBTQ rights, and promoting policies that protect immigrant rights.
This is a moment to illustrate that across the country, human rights are a priority. The UN Human Rights Council is slated to review the US human rights record on November 9th, as of the Universal Periodic Review (UPR). Through a statement developed by the Columbia Law School Human Rights Institute in collaboration with the ACLU, the Center for Constitutional Rights, the US Human Rights Network, and the Woodhull Freedom Foundation, state, local and tribal leaders have an opportunity to sign on and voice support for international human rights principles.
In joining the initiative, signatories declare their solidarity with communities across the US, and their commitment to protect the dignity and equality of all people. A commitment to human rights is a commitment to inclusive democracy, to ensuring that everyone has support to meet basic needs, and to fostering free expression, association, and assembly. As the nation’s human rights record is set for review in November, this statement provides an opportunity for government agencies and officials working at the state, county, city and local level, as well as Tribal and Indigenous leaders to voice a commitment to advancing human rights. Commitment to change, followed by action is necessary at this moment in order to preserve human rights for our nation’s future.
The US government report submitted to the UN for the upcoming UPR review is now available on the OHCHR website: https://www.ohchr.org/EN/HRBodies/UPR/Pages/USindex.aspx
Tuesday, September 29, 2020
Join the National Center for Civil and Human Rights on Friday, October 2, 12 noon - 1 p.m., for a discussion on Truth Commissions. The panel will explore how truth commissions have been utilized around the world, the difference between reconciliation and transformation, the need for healing, and the possibilities for such a commission to be established in the US on both local and national levels.
Moderator Jill Savitt, President and CEO of the National Center for Civil and Human Rights will lead the discussion with panelists Esther Anne, Board Member for Maine-Wabanaki REACH; Dr. Gail Christopher, Executive Director of the National Collaborative for Health Equity; Nelson and Joyce Johnson, Co-Executive Directors of Beloved Community Center; and special guest US Congresswoman Barbara Lee, Representative of the 13th District of California.
For more information and to register for this program, click here.
The Center has a number of other programs of interest coming up over the next few weeks, with information available here.
Monday, September 28, 2020
A search of Amy Coney Barrett's scholarly writings suggests that she has never addressed human rights explicitly. However, she has written specifically about Murray v. Charming Betsy in one article on statutory canons. In another article, she cited the majority (Kennedy) and dissenting (Scalia) opinions in Roper v. Simmons to illustrate the ways in which a judge's views may fly under the radar during a confirmation process but ultimately be revealed in opinions.
While on the Notre Dame faculty, Barrett published an article titled Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109 (2010). Addressing the question of whether and how originalist judges should utilize canons of construction, the article is generally skeptical of canons while not rejecting them entirely. Beginning on p. 134 of the article, Coney Barrett discusses the history and application of the Charming Betsy canon, embodied in Chief Justice Marshall's famous statement that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Coney Barrett returns to the canon later in the article, analyzing potential justifications for applying the principle. The Charming Betsy doctrine is one that "over-enforces" the Constitution, she observes, presumably since Congress may have intended that its legislation violate international norms. Further, Coney Barrett writes:
"Charming Betsy may be most often described as protecting international law for its own sake, but it has also been justified as guarding the
constitutional allocation of foreign affairs authority to the political branches. If almost any canon can be rationalized on constitutional grounds, the distinction between constitutional and extraconstitutional canons is one without a difference."
Coney Barrett concludes the article with the observation that the use of statutory canons "appears to be directly opposed" to the principle of faithful application of congressional legislation.
In her article Precedent and Jurisprudential Disagreement, 91 Tex. L.Rev. 1711 (2013), Coney Barrett wrote:
"However cagey a justice may be at the nomination stage, her approach to the Constitution becomes evident in the opinions she writes. For example, it would be difficult for a modern justice to avoid revealing her position on whether the original public meaning of the Constitution controls its interpretation. Justices must decide whether function can trump form, and whether the content of the Equal Protection and Due Process Clauses is static or evolving. They must decide whether the laws and traditions of foreign countries are fair game or out of bounds in the interpretation of our Constitution."
For the latter proposition, she cited the debates in the Roper and Lawrence opinions between Justice Kennedy, who cited international human rights norms in the Court's majority opinions, and Justice Scalia's dissenting opinions excoriating any citation of foreign or international law. Given Coney Barrett's close ideological connections with Justice Scalia, it seems likely that her sympathies lie with his position. However, both Roper and Lawrence were decided by the Court several years after Coney Barrett's clerkship in 1998-1999.
Sunday, September 27, 2020
By Jeremiah Ho, University of Massachusetts School of Law, contributing editor
Last October, on an evening break from interviewing candidates at the AALS Faculty Recruitment Conference in D.C., I wandered away from the Wardman Marriott over to Kramerbooks in the Dupont Circle neighborhood to buy a gift for a colleague. Kramerbooks is not terribly huge bookstore, but its tables stacked with the latest hardcovers or the newest fiction and poetry exudes a hard-to-resist independent bookstore charm for a former literature major like me. That night, as I walked from the travel section over to the fiction collection, my eyes caught a prominent display of toys and books in the children’s corner—all devoted to the iconography of Supreme Court Justice Ruth Bader Ginsburg. Calling it a display was an understatement—perhaps it was a shrine with all the picture books of the Notorious RBG, the grade-school level biographies with her illustrated figure, and the various plush dolls bearing her characteristic tied-back hair, glasses, and the jabot-robe ensemble.
Minutes later, as I found the exact novel to purchase for my colleague, I looked up from the display table where I had just picked my find and saw another Supreme Court justice—this time, not as a children’s toy in a shrine, but truly in person. Justice Elena Kagan was innocently browsing the store like all the other book-loving patrons around me. After making sure that it was definitely Justice Kagan whom I had spotted, I watched her poke her interests in the political history and philosophy sections. Then I spied her strolling toward the children’s section where I had been and turning into a corner of the store where I could no longer see her. I laughed to myself, thinking that surely she would have had to confront the RBG shrine that some bookstore manager had setup for her colleague on the Court. Oh Ruth again, I could just imagine Justice Kagan saying this under her breathe. I’m sure this is my projection, but the bibliophile iconography of RBG was something that I could envision was quite hard to ignore—especially if it was that of a current colleague.
Cut to: a few months later, when I witnessed first-hand, the fandom of RBG’s rock-star status in D.C. again during the annual AALS meeting in January. This time Justice Ginsburg was giving an interview with Professor Vicki Jackson from Harvard Law. The fans in that gigantic hotel conference hall were mostly law professors. I sat with an ex-colleague from another law school and when we saw Justice Ginsburg arrive on stage, it was hard not to automatically absorb the gravity of the moment. It’s rare to see law professors getting uniformly excited like that—positioning their smartphones to snap pictures for their Twitter or Facebook feeds. It was a frenzy that I could only characterize as adolescent—and it was really quite fun. Seeing Justice Ginsburg was a highlight of that conference.
But it was not the pop-cultural references that made RBG “notorious” for me. It was her integrity on the Court to speak up in discrimination cases when it was important to dissent from her conservative colleagues on how such cases should be decided. In the LGBTQ rights area, the Masterpiece Cakeshop decision in 2018 comes readily to mind. Justice Ginsburg stood her ground when her other colleagues—even some of her liberal ones—interpreted the comments of the Colorado Civil Rights Commission as a kind of religious hostility serious enough to overturn a decision against a Christian baker for refusing to bake a cake for a married same-sex couple.
In her dissent, she stuck to the discriminatory aspects of the case and characterized Justice Kennedy’s observation of religious hostility as an overstatement. With her recent death, that dissent—like others she has written over the years in inequality cases—is now part of a completed collection of judicial work that imparts her invaluable understanding of what discrimination is.
Beyond the LGBTQ rights cases, what I think I will miss the most from her work on the Court is how she illuminated the ways in which stereotypes about certain groups were reflected in our laws. Influenced by her studies of Swedish law, Justice Ginsburg brought an anti-stereotyping approach when she worked on a series of gender discrimination cases that were heard by federal appeals courts in the 1970s, including the Supreme Court. Our laws ought not to replicate the discriminatory hierarchies perpetuated by the status quo. It was just that in many of those cases, her advocacy for gender equality were controversial (and criticized) because often the plaintiffs whom she advocated were male. What often gets misunderstood from the optics of cases such as Moritz v. Commissioner or Weinberger v. Wiesenfeld, is that the representation of male litigants who brought discrimination suits based on sex had a purpose of showing how the laws at issue in those cases created sex role stereotypes that affected both men and women. These laws invited inequality because they replicated roles in the mainstream society that harmed both sexes.
Specifically at the Court the anti-stereotyping concepts that Justice Ginsburg had introduced as an advocate in sex discrimination cases, such as Weinberger and Craig v. Boren, were often repeated in Justice Brennan’s majority opinion of those decisions. It would not be an understatement to say that when Chief Justice Earl Warren left the Supreme Court, constitutional equality cases at the Court have more often bolstered formal equality approaches to redressing discrimination, rather than approaches that shed light upon the lived experiences of marginalized people and offer redress on such marginalization. But Justice Ginsburg’s anti-stereotyping concepts in the gender discrimination cases in the 1970s have endured over the years. In doing some recent research over this summer, I had a nice moment recounting how Justice Ginsburg was able to take up some of her anti-stereotyping views on gender discrimination after her appointment onto the Court in a majority opinion of her own in VMI.
I would have liked to see more of her voice in future LGBTQ cases now that Justice Kennedy has retired. I had this curious desire because Justice Kennedy’s dignity jurisprudence in the pro-LGBTQ cases of the Court from Romer to Obergefell had also seem to have revealed an anti-stereotyping approach separately in the context of sexual orientation discrimination. Did Justice Ginsburg’s anti-stereotyping approach in the gender cases have any profound or subliminal effect on the anti-stereotyping jurisprudence in Windsor and Obergefell? Would Justice Ginsburg take up the use of anti-stereotyping approaches in future LGBTQ cases now that Justice Kennedy has left? Two weeks ago, I would have only hoped so. Given her experience viewing discrimination through an anti-stereotyping lens, given her dissent in Masterpiece, and given that she would be one of the remaining liberal Justices to carry forth writing pro-LGBTQ opinions in Kennedy’s absence, I had set my assumptions at “full steam.”
Such is our profound loss. Justice Ginsburg’s absence in death leaves a deep void of influence in future LGBTQ cases at the Court. This thought now justifies that shrine at Kramerbooks that both Justice Kagan and I saw last October. It wasn’t merely a gesture of fandom, but rather heartfelt tribute.
Thursday, September 24, 2020
Justice Ruth Bader Ginsburg’s Contribution to Constitutional Equality: From an “Empty Cupboard” to Greater Inclusion
byProfessor Linda C. McClain, Boston University School of Law, guest blogger
“A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Justice Ruth Bader Ginsburg made this declaration in her majority opinion in United States v. Virginia (“VMI”) (1996), in which the Court held that Virginia’s exclusion of women from the Virginia Military Institute violated the Equal Protection Clause of the Fourteenth Amendment. Those words seem an apt place to begin a reflection on her momentous contribution—as a litigator and justice—to constitutional equality. Earlier in her legal career, in explaining the state of affairs when she began her pioneering litigation with the ACLU’s Women’s Rights Project (“WRP”) in the 1970s, Ginsburg observed that except for “the franchise” (the Nineteenth Amendment), “the Constitution remained an empty cupboard for people seeking to promote the equal status and stature of men and women under the law.” Later, as a justice writing the majority opinion in VMI, Justice Ginsburg recounted the Nation’s “‘long and unfortunate history of sex discrimination,’” quoting Frontiero v. Richardson (1973)—one of the cases she successfully litigated—to support the Court’s pivot to more “skeptical scrutiny” of governmental action that used gender classifications to deny rights or opportunities.
As Justice Ginsburg notes in VMI, Reed v. Reed (1971) began the shift to a more inclusive “story” of equality rights with respect to women. But Ginsburg had always insisted that men also had a stake in gender equality and in ending governmental reliance on stereotypes that constrained individuals based on sex. That men were the plaintiffs in some of her landmark victories with the WRP reveals that conviction, as well as the pragmatic judgment that male justices might more easily perceive sex discrimination experienced by a man.
In Sessions v. Morales-Santana (2017), Justice Ginsburg reiterated that the Court’s skepticism about gender-based differentials pertained to disadvantageous treatment of men as well as of women. Writing for the majority, Justice Ginsburg’s opinion held unconstitutional a provision of the Nationality Act of 1940 that treated unwed U.S.-citizen fathers less favorably than U.S.-citizen mothers with respect to conferring citizenship on their child. The relevant statutes, she noted, were “from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are,” including that the unwed mother was “the natural and sole guardian of a nonmarital child.” Ginsburg drew on what was by now a “half century” of Supreme Court jurisprudence—including her own opinion in VMI—that viewed with “suspicion” laws relying on this kind of “overbroad generalization about the different talents, capacities, or preferences of males and females.” That jurisprudence recognized that laws reinforcing stereotypes about women as the presumed “primary family caregiver” may “disserve men who exercise responsibility for raising their children.” There are echoes here of Ginsburg’s early advocacy in Moritz v. Commissioner of Internal Revenue (1972) for a man providing care for his elderly mother who was denied governmental benefits that would have gone to a daughter providing the same care.
To be sure, this jurisprudence about gender equality—so focused on the comparative treatment of women and men—may itself feel anachronistic to present-day equality advocates in light of more complex understandings of gender, gender identity, and gender discrimination. In this regard, it is useful to return to Justice Ginsburg’s observation about the “story” of the Constitution expanding to include groups once ignored or excluded as “our comprehension of ‘We the People’ expand[s].”
Consider civil marriage equality. In Bostic v. Rainey (2014), federal district judge Arenda Wright Allen concluded her opinion striking down Virginia’s defense of marriage law by quoting Ginsburg’s language from VMI. In Obergefell v. Hodges (2015), Justice Kennedy’s majority opinion affirming same-sex couples’ fundamental right to marry also reveals Justice Ginsburg’s influence when he observes that the Court’s evolving interpretation of the Equal Protection Clause recognizes “that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” He elaborates that, even into the 1970s and 1980s, “invidious sex-based classifications in marriage remained common” and “denied the equal dignity of men and women.” He implicitly references the Court’s gender revolution when he writes that, “[r]esponding to a new awareness,” the Court used equal protection principles “to invalidate laws imposing sex-based inequality on marriage.”
Consider also Bostock v. Clayton County (2020), a significant if surprising victory for LBGTQ equality. Justice Gorsuch held—in a majority opinion joined by Justice Ginsburg—that discrimination because an employee is gay or transgender necessarily and inevitably is discrimination “based on sex” under Title VII. Such analysis from a conservative justice may signal absorption and further development of the antistereotyping premises behind Ginsburg’s equality project.
Justice Ginsburg’s arguments as a litigator and analysis as a justice not only brought about a new awareness of gender inequality but also laid the groundwork for an expanding awareness of gender roles and identity and created precedents for other excluded groups to rely upon. The cupboard, as she has left it, is no longer entirely empty.
Wednesday, September 23, 2020
By Guest Blogger Robin Runge, Adjunct Professor, George Washington University School of Law
It is difficult for me to articulate the significance of Justice Ginsburg’s life and her work as a woman, a lawyer, law professor and an advocate for gender rights in the workplace. Quite literally, my life and career were made possible in large part because of her advocacy. Judge Ginsburg created the legal theories that have formed the basis of my advocacy for the employment rights of victims of gender-based violence and harassment in the world of work for the last 23 years.
I moved to Washington, DC in 1993 to work for the Women’s Legal Defense Fund (now the National Partnership on Women and Families) as a program assistant in the Work and Family Program. My work was to assist women who were experiencing sexual harassment at work and who called our office looking for legal advice. Not long after my arrival, in August 1993, Justice Ginsburg was appointed to the U.S. Supreme Court by President Clinton. One of the first assignments I worked on was coordinating the mooting of the attorney representing Teresa Harris for oral argument in her sexual harassment case before the Supreme Court. The case was heard on October 13, 1993 and was one of the first oral arguments that Justice Ginsburg participated in as a Supreme Court Justice. The issue in the case was whether sexual harassment must seriously affect the survivor’s psychological well-being in order to establish an abusive work environment in violation of Title VII of the Civil Rights Act of 1964. The act prohibits, inter alia, discrimination based on sex in the workplace. If this was to be made a requirement to establish a claim of sexual harassment it would significantly limit the number of employees who would be able to obtain protection and redress from sexual harassment. The case arrived at the Court only two years after Anita Hill’s testimony during the Justice Thomas confirmation hearings and was the most important case before the Court regarding sexual harassment at the time.
I was privileged to attend the oral arguments and observe firsthand the critical role that Justice Ginsburg would continue to play on the Court over the next 27 years. During oral argument, Justice Ginsburg asked a series of questions indicating her concern that requiring sexual harassment to seriously affect the survivor’s psychological well-being in order to establish a claim would punish strong women. I remember chills running down my back and tears forming in my eyes as I sat in the back of the room listening to her speak.
For much of my life, there had been no women on the Court and then there were two. And here was Justice Ginsburg explaining to men the experiences of women, as she had when she argued before this very Court. Justice Ginsburg questioning demonstrated her belief that just because some women did not experience psychological trauma nor allowed demeaning sexist conduct to detrimentally impact their work performance, it did not mean that it was not creating an abusive work environment in violation of the law. Justice Ginsburg successfully made the point that women experience sexual harassment in a variety of ways and that we should not have to prove injury in order for the court to find sexual harassment occurred. In a unanimous opinion issued in November 1993 written by Justice O’Connor, the Court held that the lower court should focus on whether the sexual harassment was hostile or abusive, not whether Ms. Harris had experienced “concrete psychological harm”. Justice Ginsburg authored a concurring opinion in which she emphasized that a plaintiff does not have to prove that their productivity has been detrimentally impacted as a result of sexual harassment in order to establish a claim referring to a holding from a lower court involving racial harassment in the workplace.
As a young woman considering applying to law school, this moment changed the direction of my life. I heard and saw how Justice Ginsburg was able to apply not just her brilliant mind but also her experience as a woman worker to ensure that the law be interpreted in a way that reflected those experiences. I witnessed how critical it is that women be in all places where decisions are made.
I went to law school the following year and began a career representing low income women workers who experience sexual harassment. I made sure that I and the women I serve were and are in the places where decisions are made about their lives. I went on to become a professor of law and last year, I was a technical advisor during negotiations where the International Labor Organization adopted the first ever global binding labor standard defining and addressing gender-based violence and harassment in the world of work. I am but one of many examples of how Justice Ginsburg inspired a generation of women and women lawyers to believe in and fight for equality in the workplace. And we are not done yet. Thank you does not seem strong enough to express my appreciation.
Tuesday, September 22, 2020
In 1961, Ruth Bader Ginsburg joined a comparative project on civil procedural based at Columbia Law School. She took on the Swedish portion of the project, and studied the implementation of the Swedish procedural law, Rättegångsbalken, which became effective in 1948.
Professor Ginsburg spent a year learning Swedish (!) and then traveled to Sweden in 1962, where she met with her collaborator Anders Bruzelius, a judge from Lund, a bustling university town in southern Sweden.
The project resulted in a book, Civil Procedure in Sweden, and a translation of the Swedish procedural code into English. For this work both Ginsburg and Bruzelius received an honorary degree from the Law Faculty at Lund University in 1969.
In 2019, Justice Ginsburg returned to Sweden (albeit Stockholm) and was awarded a Jubilee Doctorate from Lund University, to commemorate the 50th anniversary of her original honorary doctorate.
On that occasion, Justice Ginsburg spoke about the influence that her Swedish experience had on her career. Among other things, she recounted, she had participated in a Swedish trial in which the judge was not only a woman but also eight months pregnant --unthinkable in the US at the time. She also saw affordable, state-subsidized childcare, and more egalitarian parenting. “My thought processes were stimulated in Sweden," she said. "I saw what was wrong and what needed to change in the USA."
Ginsburg's special insight was that a viable route to making those changes in the U.S. was through social change litigation, modeled on the NAACP LDF's campaign for racial justice. She certainly did not learn that in Sweden, where impact litigation was virtually unknown. Using litigation to move the equality needle was Ginsburg's unique American spin.
When news of Justice Ginsburg's death was announced, Karin Olofsdotter, the Swedish Ambassador to the U.S., tweeted, "A Great Friend of Sweden has passed away." By the same token, Americans owe a debt to Sweden for inspiring the young professor. Imagine where we'd be if Justice Ginsburg had limited the application of her talents to civil procedure!
Monday, September 21, 2020
by Professor Michael Meltsner, Northeastern University School of Law
The early 1970s were years of great changes in American legal education, mirroring the turmoil evoked by the Viet Nam War, the continued struggle over civil rights and the legacy of riots fueled by assassinations and aggressive policing. Columbia University and its law school were still reeling from the massive disruption caused by violent student protests over efforts to build a gymnasium in West Harlem’s Morningside Park. A transformation was in the offing, altering who went to law school and what was taught.
In 1970, I left my job as first assistant counsel at the NAACP Legal Defense Fund to join the faculty to start one of the first clinical programs at a top-rated school. Two years later, Columbia hired Ruth as the first tenure track female professor. On the surface, neither appointment was controversial. After years ignoring the matter, law schools were scrambling to hire women. In the New York Times, reporter Leslie Oelsner called the RBG appointment “a major coup.” In my case, Columbia was anxious to meet burgeoning student expectations for practical experience with programs aimed at representing the poor and minority communities.
But beneath the surface there was apprehension at the changes. In the case of clinicians, older faculty worried their intellectual product might be debased by less cerebral experiential learning. Ruth’s appointment was championed by a new dean Michael Sovern, later to become the president of the University. At the faculty meeting that voted to hire her no one, so far as I recall, spoke against the appointment. Still there were comments that suggested anxiety at offering her tenure—a necessity given that she was already a tenured professor at Rutgers Law School. I remembered one coded response slightly disparaging Rutgers, a School by the way that had an estimable clinical program.
As a very junior member of the faculty I remained silent during the discussion. But it was plain that some professors had their doubts. The son of a mother who often worked outside of the home—her close college friends held responsible jobs in retail-- and having come from LDF where Constance Baker Motley, a Columbia graduate and by this time the first black woman to be named a federal judge, was a powerful influence I was dismayed, if not surprised, by even this covert show of doubt. My reaction was influenced by the treatment of the only other woman full time teacher who had been hired before Ruth. This was Harriet Rabb. Brilliant, full of stamina, and a lively sense of irony and humor, Rabb taught a clinical course in employment discrimination that would successfully challenge gender inequality at major law firms like Rogers & Wells and publications like Newsweek. Ruth’s hire was notable because she had full status in the academic caste system. Despite her achievements, Harriet was only a lecturer; later Dean Sovern protected and increased her status by making her an assistant dean. But she was not authorized to attend faculty meetings for years and, of course, could not vote.
You can get a greater sense of the ambivalence that initially greeted RBG by her own words at the time she joined the faculty. Oelsner quotes her as saying “I'm not going to curtail my activities in any way to please them.” In short, the ACLU work that would lead to her fame and greatest achievement was still going to dominate her attention. “I don't think I'll have any problem,” she added, “People will be pleasant on the outside. Some of them may have reservations about what I'm doing, but I don't think they'll be expressed.”
Those reservations soon dissipated as she embarked on the journey that changed American law and more importantly American culture and politics forever. She was given an office close by mine, an area on the eighth floor of the law school building populated by clinical teachers like my academic partner Philip Schrag and later proponent of a radical humanist vision of the law, Jack Himmelstein. We were all in a way outsiders, agents introduced into the then static world of the legal academy to bring it closer to what was happening in the world.
My first vision of Ruth is indelible. On my way to deliver some papers to my secretary, I knocked on her office door to welcome her. She was sitting facing away from her desk toward a dormitory building that blocked our full view of Morningside Park. She swiveled in her chair to greet me. Hair pulled back in a bun, crouched over a yellow legal pad, she acknowledged my greeting. She smiled her very particular and winning smile. We exchanged a few words. After a while, she looked down at the pad. She was, she said, writing a Supreme Court brief. I said, “Well you should get on with it.”
[Editors' Note: Over the next few days, we will be running a series of posts remembering Justice Ginsburg and her work. Check back for updates.}
Sunday, September 20, 2020
In ordinary times, I would be delighting in remembrance of Justice Ginsburg's life and toasting her amazing leadership as a woman and a jurist. She lived a long and heroic life. We could not have asked more of her as a woman, as a lawyer, as a citizen. She improved the lives of generations of women and others whether we realized that or not. In ordinary times, there would be no greater time for celebration of an extraordinary woman and an extraordinary life.
I grew up on the coattails of the second wave feminists. These were times of major change, particularly in the law but also the beginning of (white) women's advances in the workplace. Brave women pushed through previously unopened doors. Life was not pleasant for them, but they broke barriers despite the indignities that accompanied their success. On the legal side, Ruth Bader Ginsburg brought cases targeted to break sexist barriers. She too suffered indignities, as anyone who was watched the film On The Basis of Sex or the documentary RBG observed. Under no circumstances was Justice Ginsburg's life an easy one. Everything she gained carried with it a professional, and sometimes personal, cost. One reason we loved her was her perseverance. Our hero sacrificed much but left behind a roadmap for those fighting barriers. She and Marty Ginsburg modeled what equality looks like in a personal partnership not tied to gender roles. The marriage advice Justice Ginsburg received from her grandmother "be a little deaf" was applicable during her work life also, including her time on the Supreme Court.
But these are not ordinary times. These are times where the politics of replacement for RGB began literally as she lay dying. The political fight that is about to erupt leaves no time for mourning. Those of us who loved her are vulnerable. We are asked to postpone our grief to carry on the fight - and I admire those who can do so, particularly those of younger generations.
Why I mourn is that so many advances for women are endangered. For those of us who have spent the last several decades fighting for women's rights, we wonder if the world we thought we had made for women is such a fragile illusion that fundamental human rights for women will soon be just an historical blip.
This is where my original post ended.
With some sleep and sunshine, I recognize that the weight of leadership that Justice Ginsburg carried during her lifetime should not be on her in death. To be hopeless is to dishonor her work. Our hero's passing must not end the fight. She showed the way and it is up to the rest of us to continue resistance. No excuses.
Thursday, September 17, 2020
With the federal government dis-engaged from international efforts to address climate change (and indeed, taking concerted steps to INCREASE the climate threat by rolling back regulatory constraints !), local institutions are stepping up to do what they can as good global citizens. The latest contribution is from Carnegie Mellon University (CMU) in Pittsburgh. Not only has CMU worked closely with the city of Pittsburgh to establish a local government framework around the UN Sustainable Development Goals (SDGs), but now, the University itself has released the first ever University-focused Voluntary University Review of its own efforts to meet the SDGs.
In July 2020, Ambassador and CMU Professor Sarah Mendelson presented on the VUR process to a group of Canadian universities. Her how-to talk, encouraging others to take similar steps on campus, is available on video here.
There are more than 5300 colleges and universities in the United States, collectively with a significant footprint in terms of land use, food and energy consumption, transportation, and other sustainability challenges. But is CMU alone? Have other universities embraced the SDGs? Has yours?
Wednesday, September 16, 2020
A portion of the discourse on the anniversary of 9/11 addressed the ongoing suffering of Muslims and those of Middle Eastern heritage. Immigrants are particularly vulnerable but bias against those of Middle Eastern ethnicity continues against all generations of Muslim Americans. In 2017 Pew Research Center reported that assaults against Muslims exceeded 2001 levels. Intimidation and property damage are two of the most common assaults on Muslims, along with all forms of discrimination. Ignored are Middle Eastern and Muslim families who also lost friends and love ones in the 9/11 attacks. The government is a major perpetrator of this discrimination.
This week a U.S. district court judge, Alison Nathan, who this week "castigated federal prosecutors in the Southern District of New York for repeatedly withholding exculpatory evidence in the case of an Iranian businessman who was convicted of funneling more than $115 million through the American financial system." Prosecutors agreed to vacate the judgment after their improprieties came to light, including misrepresentations around discovery in the case. Judge Nathan commented that "serious and pervasive issues related to disclosure failures and misleading statements to the court."
Judge Nathan was appalled that the federal ethics overseers declined to investigate the case. "The cost of such government misconduct is high. With each misstep, the public faith in the criminal -justice system further erodes. With each document wrongfully withheld, an innocent person face the chance of wrongful conviction."
Tuesday, September 15, 2020
News outlets reported today that an unusual number of hysterectomies have been performed on migrant women, particularly at Irwin County Detention Center in Georgia. Tubal ligations are routinely performed there, as well. The whistle blower, a nurse who previously worked at the GA detention center, reported that the outside gynecologist removed the uterus of nearly every women he saw, and for those he did not he frequently performed a tubal ligation.
The court complaint filed on behalf of several detainees alleges a years-long record of "human rights abuses including lack of medical and mental health care, due process violations [and] unsanitary living conditions."
Women are vulnerable, immigrant and detained women more so. The first line of attack on women is often assault on their bodies. Arbitrarily removing women's sexual parts is not just an act of misogyny. Within the context of a detainee camp environment the actions are close to medical experimentation and appropriation.
We have had similar alerts of government sanctioned atrocities against vulnerable populations, reminders of what occurred in pre-war Germany. Yet our reactions are muted. At this point there is sufficient liberty remaining that massive protests might bring change. We cannot presume that this liberty will remain post-election.
Monday, September 14, 2020
The ACT Human Rights (Virtual) Film Festival begins on October 1 and runs for ten days. Presented by Colorado State University, the festival offers a wide range of interesting films. The 5th Annual Festival was originally scheduled for last spring but was postponed due to the pandemic. Tickets may be purchased for the series or for individual films.
The films are varied and address a wide-range of human rights issues. Opening day will include Gay Chorus Deep South. The film follows the San Francisco Gay Chorus as they travel through the deep south. The trailer will draw you in as a variety of emotional moments address rejection and courage.
Hungry to Learn follows students experiencing food insecurity. Exploring student hunger and its connection to learning is a painful but critical exploration. Another film topics explore non-binary athletes in Changing the Game, Yet another explores the world of private prisons. The full range of films may be explored here.
Sunday, September 13, 2020
How grateful we are for the life and work of Sally Engle Merry, NYU professor and leading legal anthropologist, who passed away last week at the age of 75. The tributes and remembrances have been many, notable not just for their praise of Merry's fierce intellectual leadership and brilliant scholarly contributions but for their descriptions of her generosity, openness, energetic support of junior scholars, and sly wit.
One of Merry's core interests was human rights, and with her co-authored work on the effort to enact a local human rights law in New York City, she made a major contribution to the theory and practice of "bringing human rights home" in the U.S. Published in 2010, the work analyzes the dynamics of a multi-year effort to craft and enact a New York City version of CEDAW and CERD. Merry and her co-authors conclude that success in moving the human rights needle on the local level "depends on collaboration among social movement leaders, grassroots activists, and legal experts," noting that such a collaboration "enables relatively powerless actors to mobilize human rights law and discourse from below." At the same time, she and her colleagues caution that a focus on "human rights as good governance can derail attention from human rights values."
With this and other scholarly work on human rights, particularly her work on indicators, Sally Engle Merry made immeasurable contributions to the practice and praxis of human rights at home and abroad. We will all miss her terribly.
Thursday, September 10, 2020
With the U.S. government on the sidelines internationally, cities are taking up the challenge of implementing the UN Sustainable Development Goals. Several cities, including particularly New York and Los Angeles, have been pioneers in developing "voluntary local reviews" (VLRs) of their local efforts towards sustainability. Orlando, Florida, is another participant in this effort, currently developing its own VLR; for an in-depth conversation about this initiative and more between the Brooking Institution's Tony Pipa and Chris Castro, Orlando's Sustainability Director, click here. Hawai'i is also developing a VLR.
Resources are available for other cities, counties, states, or others that want to join this effort and mount reviews in their local communities. In particular, the United Cities Local Governments umbrella group has published guidelines for VLRs.
You can learn more on Wednesday, September 16, from 1:00-2:30 PM, when the Brookings Institution and the UN Foundation cohost a high-level virtual event to showcase the power of the SDGs in the United States. Register here. The event promises to showcase local innovation, leadership, actions, and commitments from all parts of the American society to implement the SDGs, including cities, businesses, universities, philanthropy, and youth activists.
Wednesday, September 9, 2020
Attention U.S. water scholars and activists: The peer reviewed, open access journal Water has put out a call for papers for a special issue on the Politics of the Human Right to Water. The deadline for submissions is January 15, 2021. More information is available here.
Monday, September 7, 2020
In an advancing his racial hate agenda, the President has ordered that critical race trainings be de-funded along with any trainings on White privilege. In a memo, government employees were told:
"All agencies are directed to begin to identify all contracts or other agency spending related to any training on 'critical race theory,' 'white privilege,' or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil."
Of course, neither training promotes the United States or any ethnicity as "evil". Yet the President called the trainings "divisive, anti-American propaganda".
Federal employees "should begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions."
Jeffrey Toobin has warned that if Trump is re-elected the second term will make these past four years look like constitutional compliance. Scary to think what the substitute trainings will include.
Sunday, September 6, 2020
The UN Human Rights Council will hold its 45th session from September 14 through October 6, 2020, in Geneva.
US activists will be particularly attuned to the discussions of systemic racism and human rights violations in the United States. During the meeting, the UN High Commissioner for Human Rights will present her first oral update to the Council on the preparation of her report on systemic racism and police brutality, especially those incidents that resulted in the death of George Floyd and of other Africans and people of African descent, as well as government responses to anti-racism peaceful protests. The item is #16 on the HRC agenda. An overview of the HRC session is available here. The meeting will be broadcast on UN Web TV.
Nearly 150 families of victims of police violence and over 360 civil society organisations endorsed a letter sent on August 3 to the UN High Commissioner, detailing expectations from the report and the process for its preparation, including an “inclusive outreach to communities of color and the creation of meaningful, safe, and accessible opportunities for consultation.” On August 19, 2020, the High Commissioner responded to the letter, here.
Thursday, September 3, 2020
There are still a few days to put together your application for a Fulbright Distinguished Chair position for 2021-2022. The deadline is September 15, and the application is not as daunting as you might think. More information is available here.
Of particular interest to our readers is the Fulbright-Lund University Distinguished Chair in International Law, based on Lund, Sweden, which is focused on human rights and humanitarian law. The position is affiliated with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, a dynamic human rights organization engaged in research and human rights education worldwide. As a Distinguished Chair based at RWI, you can combine research and teaching with direct engagement on the issues.
Whichever Distinguished Chair position you pick, you'll return to the US with renewed energy and perspective, ready to take on the human rights challenges that we face here! Go for it!
Wednesday, September 2, 2020
Hans Linde, former justice of the Oregon Supreme Court and professor at Oregon Law School, passed away on Monday at age 96. Among Linde's many notable contributions, in 1981, Justice Linde authored the opinion in Sterling v. Cupp, which explicitly recognized the role of international human rights law in informing the analysis of personal dignity under the Oregon State Constitution. The issue was whether requiring prisoners to submit to "pat-downs" by guards of the opposite sex violated the Oregon Constitution. Citing the Universal Declaration of Human Rights, the decisions of the European Court of Human Rights, the American Convention on Human Rights, and other international human rights standards, Justice Linde opined that "[t]he various formulations in these different sources in themselves are not constitutional law. We cite them here as contemporary expressions of the same concern with minimizing needlessly harsh, degrading, or dehumanizing treatment of prisoners that is expressed in [the Oregon Constitution.]" Led by Linde, the Court concluded that except in exceptional circumstances, cross-gender touching of a prisoner's intimate areas violated the prisoner's constitutional rights.
In 2014, the American Bar Association declared Hans Linde to be a "human rights hero." The ABA's citation provides an elegant summation appropriate to this occasion: "this grand persona of American law has enriched our understanding of that law while also buttressing our commitment to human rights."