Sunday, September 27, 2020

Oh Ruth Again: A Tribute

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.

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