Ruth Bader Ginsburg (1933-2020) / Notes on Dissent

From My Own Words by Ruth Bader Ginsburg (quoting her Senate Confirmation Hearing Opening Statement, July 1993):

“Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither liberal nor conservative. Rather, it is rooted in the place of the judiciary, of judges, in our democratic society. The Constitution’s preamble speaks first of ‘We, the People,’ and then of their elected representatives. The judiciary is third in line and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group.”

From My Own Words by Ruth Bader Ginsburg (quoting her speech “The Role of Dissenting Opinions,” July 2013):

“My remarks concern the role of dissenting opinions in U.S. appellate courts generally, and the U.S. Supreme Court in particular. It is a subject I have been obliged to think about more than occasionally in recent Terms….

My experience confirms that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation….

Another genre of dissent looks not to a distant future day, but seeks immediate action from the political branches of government — Congress and the president. Dissents of this order aim to engage or energize the public and propel prompt legislative overruling of the Court’s decision…. “

From In Defense of Justice: The Greatest Dissents of Ruth Bader Ginsburg by Sarah Wainwright (quoting Justice Ginsburg’s dissent in Shelby County v. Holder (June 2013):

“[A] governing political coalition has an incentive to prevent changes in the existing balance of voting power….

“When voting is racially polarized, efforts by the ruling party to pursue that incentive ‘will inevitably discriminate against a racial group.'”

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I’ve been away from blogging (and photography) for a few weeks, after I decided to educate myself on some political issues that have gotten a lot of attention since earlier this summer. I was triggered, I think, by hearing the president of the United States float the idea of delaying the November 3 election because, ostensibly, of the pandemic. You may not have even noticed that that idea didn’t get much traction — since it didn’t get much traction. It held our attention through a few hours of news coverage, then dissolved of its own failed logic: the president can’t delay elections that are run by states; he behaves as if the pandemic is barely real so he can’t use that as a reason; and, more psychotically, the whole point was to just throw out a trial balloon to test reactions and stir up some chaos and confusion. The president then flipped to denigrating electoral procedures — focusing, if you could call it that, on unproven assertions about absentee ballot fraud — a theme he reiterates almost daily and will likely continue to do so well into November.

You see, it’s like this: intentionally creating confusion about election procedures and insisting in advance that an election is fraudulent are classic examples of voter intimidation — potentially illegal if you or I tried to do it publicly — and that’s what got me interested in setting aside a few weeks to learn more. I’ll come back to that in some future posts — I’ve been surprised at how little I knew about voter suppression in the United States — as I try to organize and write about what I’ve been learning. For now, though, just keep this in mind: prior to the railings of this madman, you probably didn’t find yourself worrying about whether there was integrity in elections you participated in — largely because you were (intuitively, perhaps) aware that state and local governments and election boards were quite accomplished at managing election procedures that they continuously seek to improve and have followed for decades.

Back in the early twenty-first century when I was working on my history degree, I took a couple of courses on constitutional interpretation that occupied me for the better part of a year. I don’t lay claim to any inordinate expertise because I took those classes — but I will say that the experience of studying the United States Constitution and deeply reading dozens of Supreme Court opinions was singularly valuable, the kind of learning experience where you realize you’ve been forever changed by what you learned. If you’ve never read a Supreme Court opinion, you’re missing out: embedded in the Court’s writings you’ll find the history of this country — in a literary and narrative form unlike any other — and with it, the history of the struggles of millions of people as they worked toward greater justice, for all. The American Bar Association has a short summary describing how to read a Supreme Court opinion — though I would personally shorten that even more to say that the syllabus (which states the facts of a case), the main opinion, the disposition (or judgement rendered), and the concurring and dissenting opinions are the most relevant to someone reading an opinion without legal training.

Coincidentally (the coincidence is inconsequential), I was reading in Carol Anderson’s book One Person, No Vote: How Voter Suppression is Destroying Our Democracy about Ruth Bader Ginsburg’s dissent in the 2013 Supreme Court case Shelby County v. Holder when I heard she had died — which is why I chose her quotes about that case and the importance of dissenting opinions to lead this post. The Supreme Court’s majority decision in the Shelby County case invalidated provisions of the Voting Rights Act that required certain states with a history of disenfranchising voters along racial lines to get permission — or pre-clearance — from the Department of Justice before changing their voting procedures. In her dissent (which you can read here), Justice Ginsburg discusses the problems of ongoing voter suppression in some detail — providing a summary of contemporary and typical examples — and is certainly still relevant since the Trump administration and campaign have launched over 200 lawsuits that potentially interfere with voting access, procedures, and ballot counting for the November 3, 2020 election.

In a season when we seem politically unmoored, with many normal frames of reference out of reach or completely gone, we would do well to remember Justice Ginsburg’s belief that dissent could be used to spur legislative action and even challenge the very court she served on. And, as we try to move forward, to remember that dissent in itself has a way of creating clarity about uncertain times. As Sarah Wainwright says of her in In Defense of Justice:

“Ginsburg reads the Constitution for the principles it espouses, she looks at society for what it is, and she sees the yawning gap between the two. With every dissent, she fights — if not to fill it, then to light the path for those who follow….

“To the fight, she brings nothing but a pen….”

Rest in peace, Ruth Bader Ginsburg. Your memory, and your work, will live on.

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