Soon after the Donald Trump presidency gets under way next month, movement will likely resume to replace the late justice Antonin Scalia on the US Supreme Court. (Barack Obama’s nomination for the open slot, Merrick Garland, will surely devolve from primary contender to historical footnote.) As Scalia was one of the more conservative members of the court (and famously an originalist), a Trump nominee will likely keep the bench in a precarious balance similar to that it experienced prior to Scalia’s death. What will truly upend things, of course, would be any further SCOTUS vacancies during the Trump years. All eyes will be on 83-year-old Justice Ruth Bader Ginsburg (named to the court by Bill Clinton in 1993), who is the senior member of the Court’s liberal/progressive contingent. Can Ginsburg — noted for her frail appearance but also for her resilient constitution — hang on through the next four years, or at least until after the 2018 midterm elections? Certainly, the many anxious admirers of the justice are counting on rejuvenating spa visits and restful nights’ sleep to keep her in fine fettle. (Don’t put too much stock in the latter: Ginsberg is a lifelong nocturnal creature who customarily prefers to work into the early hours of the morning and skid by on a few hours’ sleep.)
Ginsburg’s sleeping habits are chronicled briefly in My Own Words, which Simon and Schuster published in July. The book is a collection of speeches, lectures and other writings that the justice compiled with the help of Mary Hartnett and Wendy W. Williams, who are also officially designated Ginsburg biographers. Originally, the plan was to complete the biography first, with the anthology to appear as a later, companion volume. But because of Ginsburg’s continuing and prominent role as a jurist, the biographers and publisher determined to move ahead with this collection first.
The book’s earliest selection is an article describing five “great documents” of civilization (including the Ten Commandments and the Charter of the United Nations) that eighth-grader Ruth Bader penned for her school newspaper at P.S. 238 in Brooklyn in 1946. The newest selection is an overview of the Supreme Court’s 2015-16 session, dating from July of this year. Among the dozens of other inclusions are an abridged version of an American Bar Association Journal article from 1973, on the need for an Equal Rights Amendment; Ginsburg’s Rose Garden SCOTUS nomination-acceptance remarks from 1993; her opening statement at her Senate confirmation hearing; and tributes to Sandra Day O’Connor, Gloria Steinem and the late Chief Justice William Rehnquist, among other “waypavers” and colleagues.
Ginsburg’s reputation among conservatives as an “activist” judge — and among liberals as a stalwart defender of progressive policies (the fond nickname “the Notorious RBG” seems to have stuck) — is downplayed here. Repeatedly throughout My Own Words, Ginsburg notes the frequency with which she and her judicial colleagues have delivered unanimous opinions. She claims to believe in exercising her dissent from the majority opinion sparingly — and so she did during her early years on the bench. But Hartnett and Williams note that she became a much more active dissenter as she gained seniority. In the 2012-13 session alone, she delivered four bench dissents, a record. Her summaries of several of these are featured late in the book, including such cases as 2007’s Ledbetter v. Goodyear Tire & Rubber Co. (on pay disparities based on gender) and 2014’s Burwell v. Hobby Lobby Stores, Inc. (on religious exemptions for corporations regarding provision of contraceptive care under the Affordable Care Act).
It may surprise some to learn that Ginsburg believes — or, at any rate, believed — that decisions with earth-shaking consequences for Americans are often best avoided. She noted in a 1992 “Madison Lecture” delivered at the New York University School of Law that the landmark 1954 decision on civil rights in Brown v. Board of Education was striking but not “altogether bold.” Not that that was a bad thing. She, in fact, found it commendable that Brown “launched no broadside attack on the Jim Crow system in all its institutional manifestations,” but instead focused solely on segregated schools. The decision thereby served as one stepping stone leading toward full desegregation.
Ginsburg contrasted the Brown decision favorably with Roe v. Wade, which made abortion legal nationwide in 1973. She felt that Roe may have done too much in one fell swoop, inviting a backlash:
No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
One controversial hallmark of Ginsburg’s approach to jurisprudence has been her willingness to look beyond American shores to gain a broader legal perspective. For this she has been taken to task by voices on the right. She rebuts the criticism simply and directly: “[I]nternational law,” she contends in one variation of a speech she’s given over the years, “is part of our law; foreign law is not, but we can be informed by how jurists abroad have resolved problems resembling those we face.” To bolster her view, she cites the conservative Rehnquist, who himself wrote (surprisingly) in 1999 that it was time for US courts to “begin looking to the decisions of other constitutional courts to aid in their own deliberative practices.”
Much of the book is devoted to cases involving women’s rights and gender disparity — which makes sense, considering that Ginsburg’s commitment to feminist principles have been a big part of her career and legacy since the 1970s. Still, I wish there had been more on other game-changing cases. Bush v. Gore (2000), one of the most consequential matters to come before the Court during her tenure, is treated only in passing. Obergefell v. Hodges, which made same-sex marriage legal nationwide in 2015, is not even mentioned. (That’s especially disappointing, as it seems to be another of those cases, like Brown and Roe, that changed a great deal for many people quite suddenly. I anticipate that Hartnett and Williams will have more to say on these cases in their planned biography.
Finally, while it’s a bit of fun to have excerpts from the libretto for Derrick Wang’s 2015 opera Ginsburg/Scalia included in this anthology, I question its inclusion here. True, it illuminates the curious friendship between the opera-loving justices, and draws distinctions between their interpretative approaches to the Constitution. But the text of Ginsburg/Scalia is technically Wang’s “own words,” not Ginsburg’s. Further, for those who are green-minded, it is a curiosity that while many of the original footnotes for selections of the book are not available in the print version (but searchable at a related website), Bartnett and Williams include in the printed edition nine long pages of footnotes for Wang’s libretto.
That seems to me an odd editorial decision. The full text of Ginsburg/Scalia probably deserves its own deluxe, annotated volume. Should Ginsburg indeed stay on the bench for another half decade or so, perhaps that can be Hartnett and Williams’s next interim project.