{"id":895,"date":"2020-09-21T12:36:48","date_gmt":"2020-09-21T17:36:48","guid":{"rendered":"http:\/\/capertongillett.com\/blog\/?p=895"},"modified":"2020-09-21T12:36:48","modified_gmt":"2020-09-21T17:36:48","slug":"the-momentous-writings-of-the-notorious-rbg","status":"publish","type":"post","link":"https:\/\/capertongillett.com\/blog\/the-momentous-writings-of-the-notorious-rbg\/","title":{"rendered":"The Momentous Writings of the Notorious RBG"},"content":{"rendered":"\n
\"\"

RBG has never been photographed in her \u201cRise and Grind\u201d collar, but no one has proved to me she doesn\u2019t have one. (Credit CNN Films\/Kobal\/Shutterstock)<\/em><\/figcaption><\/figure>\n\n\n\n

This week, we lost a part of jurisprudential history, a defender of human rights, a trailblazer for women, and, more importantly, a strong and brilliant woman. Ruth Bader Ginsburg has died at age 87. I and most people I know kind of wished she would prove immortal, and it damn near looked like she might be, but you really can\u2019t blame her for not being that, and the legacy of everything she\u2019s given us will stand in her absence.<\/p>\n\n\n\n

She fought through uninterrupted personal adversity all the way through law school, fighting through gender discrimination throughout her legal education \u2014 scolded for taking a man\u2019s spot at Harvard law \u2014 and early career, standing against gender discrimination on behalf of women and men, arguing in front of the Supreme Court she\u2019d ultimately serve on. That determination pervaded her life, even as she was undergoing chemotherapy for pancreatic cancer, or recovering from surgery for colon cancer, never missing a day of oral arguments. She was inspirational to women and set a standard that no human being should actually be expected to reach but is definitely something to reach for.<\/p>\n\n\n\n

And she was a badass. Basically up until her death, she worked out with a personal trainer, lifting weights in sheer defiance of physics. (Do you even lift, Breyer?) In 2018, we learned that RBG had a full wardrobe of jabots<\/a> \u2014 that\u2019s the official name for those fancy collars she wore over her robes \u2014 and not only that, each collar means something different. Among others, she has her white favorite collar, a yellow \u201cmajority opinion\u201d collar, and, of course, her famous \u201cdissent collar\u201d (which, totally coincidentally, she also wore to sit on the bench the day after Trump was elected, even though they weren\u2019t making any decisions that day). Maybe we all should wear items of clothing that warn the world if maybe it isn\u2019t the day to off with us.<\/p>\n\n\n\n

She was also, of course, a writer, and she\u2019ll live on in the decisions she wrote that will be enshrined in law through her Supreme Court decisions.<\/p>\n\n\n\n

Bring out the collars<\/h2>\n\n\n\n

Justice Ginsburg was the author of numerous decisions for historic cases, and she was also the author of many stunning dissents, some of which she read from the bench, like a boss, making sure her opinions about justice for the people became a part of history. She was known for writing colloquially, eschewing formal legal language to make her opinions more accessible and, in that way, more powerful. Here are just a few of her significant responses.<\/p>\n\n\n\n

Ledbetter v. Goodyear Tire & Rubber Co., Inc.<\/em><\/h3>\n\n\n\n

Final vote: <\/strong>5-4 for the defendant<\/p>\n\n\n\n

Her position:<\/strong> Dissenting<\/p>\n\n\n\n

\"\"
\u201cOkay, people, hold on to your butts.\u201d (Credit Yahoo News)<\/em><\/figcaption><\/figure><\/div>\n\n\n\n

In 1996 (with the final decision to be made in 1997), the court saw the case of Lily Ledbetter, who\u2019d discovered that her paycheck at the Goodyear Tire & Rubber Co. was significantly less than the paychecks of her comparable male counterparts. And as her coworkers were receiving raises and promotions, she was being left behind. But she discovered this in 1998, as she neared retirement, nearly 20 years after her hiring in 1979. She argued that discrimination was discrimination and the company was behind in nearly two decades of payments. The state argued that it was more than 180 days since Goodyear had decided to thusly discriminate against her, thus the basis of \u201cno takebacksies.\u201d<\/p>\n\n\n\n

In writing the court\u2019s decision, Justice Samuel Alito reported the determination that if Ledbetter had discovered, and filed suit over, the pay disparity within 180 of her hiring, she might have a case. But because she hadn\u2019t, she didn\u2019t. The fact that she was receiving paycheck after paycheck that discriminated between her coworkers\u2019 pay and hers was, apparently, NBD. Justice Ginsburg disagreed, saying:<\/p>\n\n\n\n

It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter\u2019s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.<\/p>

On questions of time under Title VII, we have identified as the critical inquiries: \u201cWhat constitutes an \u2018unlawful employment practice\u2019 and when has that practice \u2018occurred\u2019?\u201d Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by genderbased (or race-based) discrimination\u2014a practice that<\/strong> occurs whenever a paycheck delivers less to a woman than to a similarly situated man.<\/strong><\/p><\/blockquote>\n\n\n\n

The Supreme Court might say Ledbetter wasn\u2019t being discriminated against every single pay period for 19 years, but Ginsburg argued otherwise. You tell \u2018em, Justice Ginsburg.<\/p>\n\n\n\n

Olmstead v. L.C.<\/em><\/h3>\n\n\n\n

Final vote: <\/strong>6-3 for the plaintiff<\/p>\n\n\n\n

Her position: <\/strong>Affirming<\/p>\n\n\n\n

\"\"

\u201cNo, no, we\u2019re good on this one.\u201d (Credit Chip Somodevilla\/Getty Images)<\/em><\/figcaption><\/figure><\/div>\n\n\n\n

In 1999, the Atlanta Legal Aid Society went before the Supreme Court in defense of two women in Georgia who had been unjustly confined to a state-run institution. The women, who had developmental disabilities and mental illnesses, had been voluntarily committed to the psychiatric unit of the Georgia Regional Hospital. But even after treatment, and after mental health professionals determined that they were ready to move to a community-based program, the state confined them to that institution for years. Years<\/em>.<\/p>\n\n\n\n

By the time Olmstead<\/em> made it to court, both women had been released to those programs like the doctors had said they should from the very beginning. But the state still had the power to re-institutionalize them at will at any time. They were out, but they weren\u2019t safe. And while it had taken four years<\/em> to get in front of the Supreme Court \u2014 the case had originally been filed in 1995<\/em> \u2014 the Supremes determined that the state didn\u2019t have the right to keep the women confined simply because they had a disability. In her decision, Ginsburg wrote:<\/p>\n\n\n\n

The identification of unjustified segregation as discrimination reflects two evident judgments: Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life, cf., e.g., Allen v. Wright<\/em>, 468 U.S. 737, 755; and institutional confinement severely diminishes individuals\u2019 everyday life activities.<\/strong> Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.<\/p><\/blockquote>\n\n\n\n

The fact that a person has a disability doesn\u2019t mean they lack the right to be treated as a human just like anyone else. Damn straight, Justice Ginsburg.<\/p>\n\n\n\n

United States v. Virginia<\/em><\/h3>\n\n\n\n

Final vote: <\/strong>7-1 for the plaintiff<\/p>\n\n\n\n

Her position: <\/strong>Affirming<\/p>\n\n\n\n

In 1996, the Supreme Court heard the case against the Virginia Military Academy\u2019s policy to only admit men. The court agreed 7-1 that this policy was a violation of the Equal Protection Clause of the 14th Amendment, and Justice Ginsburg had the following to say about it:<\/p>\n\n\n\n

Parties who seek to defend gender based government action must demonstrate an “exceedingly persuasive justification” for that action. E.g., Mississippi Univ. for Women v. Hogan,<\/em> 458 U.S. 718, 724. Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature \u2014 equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.<\/strong><\/p><\/blockquote>\n\n\n\n

The state can\u2019t deny women the opportunity to achieve simply because they\u2019re women. Bring it, Justice Ginsburg.<\/p>\n\n\n\n

Gonzales v. Carhart<\/em><\/h3>\n\n\n\n

Final vote: <\/strong>5-4 for the plaintiff<\/p>\n\n\n\n

Her position:<\/strong> Dissenting<\/p>\n\n\n\n

In 2003, President Bush (the W one) signed into law the deceptively named Partial-Birth Abortion Ban act. (Side note: \u201cpartial birth abortion\u201d isn\u2019t a thing<\/em>.) The Act was deemed unconstitutional in three district courts on the basis that it didn\u2019t give two shits \u2014 ahem, I mean it didn\u2019t make any exceptions for the health of the mother, and that the government hadn\u2019t provided any new evidence that would distinguish it from a previous Supreme Court ruling on the subject.<\/p>\n\n\n\n

The court decision, as written by Justice Anthony Kennedy, the Carhart<\/em> side hadn\u2019t provided any evidence that Congress didn\u2019t get to ban the procedure, that a previous ruling had established that the state has an interest in \u201cpreserving fetal life,\u201d and that banning this procedure that medical practitioners up to and including ACOG have deemed necessary for doing their job actually doesn\u2019t constitute an undue burden on women\u2019s autonomy over their own body or a risk to her health. Justice Ginsburg, naturally, disagreed, saying:<\/p>\n\n\n\n

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman\u2019s \u201ccontrol over her [own] destiny.\u201d 505 U. S., at 869 (plurality opinion). See also id., at 852 (majority opinion).2 \u201cThere was a time, not so long ago,\u201d when women were \u201cregarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.\u201d Id., at 896\u2013897 (quoting Hoyt v. Florida, 368 U. S. 57, 62 (1961) ). Those views, this Court made clear in Casey, \u201care no longer consistent with our understanding of the family, the individual, or the Constitution.\u201d 505 U. S., at 897. Women, it is now acknowledged, have the talent, capacity, and right \u201cto participate equally in the economic and social life of the Nation.\u201d Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to \u201ctheir ability to control their reproductive lives.\u201d Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman\u2019s autonomy to determine her life\u2019s course, and thus to enjoy equal citizenship stature<\/strong>. <\/p><\/blockquote>\n\n\n\n

A woman\u2019s right to bodily autonomy is paramount, whether or not a court full of men think it is. Damn straight, Ruth. Speak the truth, Ruth.<\/em><\/p>\n\n\n\n

Shelby County v. Holder<\/em><\/h3>\n\n\n\n

Final vote:<\/strong> 5-4 for the plaintiff<\/p>\n\n\n\n

Her position:<\/strong> Dissenting<\/p>\n\n\n\n

In 1965, the Voting Rights Act was passed to address racial discrimination in voting (which, at the time, apparently was considered \u201can insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution\u201d). Various sections of the law banned practices that would abridge voting rights on the basis of race and that specific jurisdictions that maintained discriminatory practices and\/or had low voter turnout needed extra supervision, and thus any changes to voting procedures would have to be \u201cprecleared\u201d with authorities in Washington. You know, because if they make decisions on their own, they do racism.<\/p>\n\n\n\n

In 2013, Shelby County, Alabama, argued that this was unfair because they were better now, for real. The Supreme Court\u2019s ruling was that yeah, that\u2019s bad, and Section 4 (the one that requires preclearance) was unconstitutional. The court\u2019s decision, written by Chief Justice John Roberts, was that while back in \u201966, \u201cthese these departures were justified by the \u2018blight of racial discrimination in voting\u201d that had \u201cinfected the electoral process in parts of our country for nearly a century,\u2019\u201d things are better now, because with the Act, \u201c\u2018[v]oter turnout and registration rates\u201d in covered jurisdictions \u201cnow approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.\u2019\u201d So basically the \u201cbut we have a black president now!\u201d argument established as legal precedence. Justice Ginsburg, you might be shocked to know, disagreed, saying, <\/p>\n\n\n\n

Instead, the Court strikes \u00a74(b)\u2019s coverage provision because, in its view, the provision is not based on \u201ccurrent conditions.\u201d Ante, at ___, 186 L. Ed. 2d, at 669. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old  ways. 2006 Reauthorization \u00a7\u00a72(b)(3), (9). Volumes of evidence supported Congress\u2019 de-termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.<\/strong><\/p><\/blockquote>\n\n\n\n

Cool, yeah, racism is over, so we don\u2019t have to protect BIPOC people from the very real discrimination and voter suppression that is still happening to this day. Except Ginsburg knew that, hey, maybe INSTITUTIONAL RACISM IS STILL A THING. FUCK \u2018EM UP, RBG.<\/p>\n\n\n\n

Her legacy<\/h2>\n\n\n\n

Justice Ginsburg\u2019s passionate arguments also influenced cases for which she didn\u2019t write the decision. In Safford United School District v. Redding<\/em>, the court decided that the middle school was wrong to strip search a freaking 13-year-old girl on suspicion that she might be smuggling prescription-strength ibuprofen<\/em>. And what\u2019s almost as bad is that the male justices didn\u2019t think it was a big deal. \u201cHow bad is this?\u201d Justice Stephen Breyer said about a teenage girl being forced to strip down to her underwear because ibuprofen. Ginsburg, the only woman on the court, had to point out that the other justices \u201chave never been a 13-year-old girl.\u201d At least they finally came out on the side of the girl, even if it mystifyingly (read: not really mystifyingly) was the subject of debate.<\/p>\n\n\n\n

If you happen to be a woman and\/or BIPOC and\/or LGBT and\/or concerned about your reproductive freedom and\/or personally invested in fair voting, you\u2019ve lost a determined champion for your rights, and that is truly tragic. It puts a lot of pressure on us to fill the gap that she\u2019s left, to the extent that we\u2019re able, in whatever way we\u2019re able. There never has been and never will be another Ruth Bader Ginsburg, and the 87 years we had with her are precious.<\/p>\n\n\n\n

To the Honorable Ruth Bader Ginsburg, may your memory be a blessing. And to the Notorious RBG, mourn you \u2019til I join you.<\/p>\n","protected":false},"excerpt":{"rendered":"

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