Ultra Vires


Justice Ginsburg In Memoriam

The Role of a Judge in Advancing Human Rights 

Image courtesy of Wikimedia Commons

Since the evening of September 18, a slew of eulogies has been pouring in from the steps of the Supreme Court of the United States (SCOTUS). More than a week on, Associate SCOTUS Justice Ruth Bader Ginsburg (RBG) continues to be memorialised through accounts of her most notable rulings & dissents, her former clerks speaking to their experience working for her, and even her famed workout routine

Justice Ginsburg’s passing struck a chord with many.  Her passing symbolized a  loss of a  bold voice from the world of rights advocacy, inclusive of obstetric justiceequal pay, and disability rights. However, instead of being laid to rest as one of many in a series of movements that has spanned generations and crossed borders, her death has unnerved  attuned persons to its political ramifications for its unfortunate timing. 

This brings to question whether a member of the judiciary — an institution intended to follow stare decisis  and entrench the separation of powers — should have been so popular as a progressive advocate.  Surely, that would be a line worth drawing between the bar and the bench? At the heart of this conversation is the tricky imperative of maintaining the independence of the judiciary from the executive and the legislature, in pursuit of that ever-elusive balance of powers, and possibly the more controversial debate between judicial activism and restraint.

Contrarily, back in 1988, Justice Kirby said that where a version of a bill of rights is in play, especially in common law countries, judges have the “inescapable function of developing the law,” such that their “decisions necessarily advance their view of human rights.” Justices are uniquely defined by the longevity of their tenures, and so observe movements transitioning into cultural shifts, which they then have the ability to entrench in policy by signalling to the legislature with their decisions. 

Justice Ginsburg demonstrated this in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), where her famous dissent called out the majority on being oblivious to the “insidious way in which women can be victims of pay discrimination” and that the “ball is in Congress’ court.” Two years after that decision, Congress produced the Lilly Ledbetter Fair Pay Act

These dissents did not occur in a vacuum. Justice Ginsburg was appointed to the US Court of Appeals in 1980 and to the Supreme Court in 1993. The famous American feminist movement of the late 60s and early 70s, symbolized by the equally notorious Gloria Steinem, was already in the history books. In RBG’s own words, she was one of nine women begrudgingly let into Harvard Law. By the time her daughter attended Harvard, around 25 percent of the year was female, and when her granddaughter followed in their footsteps, more than half of the class was made up of women. As someone who was turned away from the best law firms in New York despite graduating at the top of her class, RBG was arguably relegated to academia, a destination that would otherwise only have been a source of prestige. When asked, “Did you always want to be a judge?”, her answer was “I wanted a job in the law, any job.”

 All this is to say that Justice Ginsburg was no revolutionary. She was as much a product of her time as she was perceived to be a pioneer of it — a nuance that helped colour her persona as a fierce advocate of human rights, even from the bench. 

In fact, RBG was a strong supporter of incremental change at the margins of the law. In 1992, she criticized the ruling in Roe v. Wade, 410 U.S. 113 (1973) [Roe], for being based on a brand of faulty reasoning that allowed for the law as it stood to come across as pro-abortion instead of pro-choice. 

She suggested instead that if the decision had been reasoned on the basis of advancing gender equality instead of protecting a woman’s right to privacy, the milestone it achieved for abortion rights would have been more durable. This was an example of the incisive judicial mind that is instrumental to ushering  in long-term progress.  

It is equally worth acknowledging however, that her battles were not without blemish. Albeit out of court, in 2016, she criticised Kaepernick’s protests against police brutality. How can we take stock of her mindful efforts from the bench and the bar, while acknowledging this misguided objection? 

To separate the Justice from the person here would be to favour playing the long game when it comes to human rights and social justice advocacy. In societies where the rule of law exists, the bench, in its longevity,  is well-placed to facilitate that fight by providing the advocacy efforts of the collective with the circumstance to take root. When this fortification comes about through changes in law and policy, individuals within that collective might be more encouraged  to reconsider their own misconceptions when presented with a changing world.

In the collective consciousness, ‘The Notorious R.B.G.’ will no doubt precede ‘Ruth Bader Ginsburg, the Justice’. Whatever history’s view of her body of work will be—surreptitious judicial activism or measured defiance to the justice system’s “old boys’ club” — Justice Ginsburg showed us the sheer potential of the legal profession if wielded with consideration, confidence and style. As emerging advocates, from that we might draw inspiration. 

A version of this article appears on Rights Review’s website here.

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