Ruth-Bader-GinsburgIn 1960, a dean at Harvard Law School, Albert Sachs, personally recommended one of his best students to Justice Felix Frankfurter of the Supreme Court for a law clerk position.  This student was the first woman ever to be a member of both the Harvard and Columbia Law Reviews, and graduated at the very top of her law class. 

Nevertheless, Justice Frankfurter declined to offer the student a job, telling Sachs that although the candidate was impressive, he just wasn’t ready to hire a woman.  Jump forward 55 years and that star student, Ruth Bader Ginsburg, is now an Associate Justice of the Supreme Court.

It’s hard to measure the precise impact Justice Frankfurter’s rejection had on Ginsburg’s life.  What’s clear, however, is that since 1960, Ginsburg has dedicated most of her professional life to changing the law as it affects women.

Nominated by President Bill Clinton in 1993, Justice Ginsburg became the second female Supreme Court Justice in U.S. history.  During her tenure on the Court, Ginsburg has been an advocate for gender equality, women’s reproductive rights, the rights of workers, and the separation of church and state.

While some characterize her style as “cautious and moderate,” Justice Ginsburg is often considered a powerful progressive/liberal voice on the Court.  Like Justice Scalia for conservatives, Justice Ginsburg is considered a “champion” for many liberals.  (Want proof? Check out the fan page: The Notorious RBG.)

notorious RBGG

Interpreting the Law

Staunchly opposed to Justice Scalia’s originalism, Justice Ginsburg believes in a “living Constitution,” a judicial philosophy that sees the Constitution as a document that adapts to the times, taking on different meanings depending on when it is interpreted.

Take the death penalty for example.  An originalist would look to the 18th Century and say: “Considering the death penalty was the only punishment for convicted felons, of course it is not the type of ‘cruel and unusual punishment’ prohibited by the Eighth Amendment.”

In contrast, a person believing in a living Constitution may argue that the death penalty should be considered in light of the “evolving standards of decency” in a sophisticated society.  (I.e. while it may not have been “cruel and unusual” in 1791, it is in 2015).

Although I don’t personally favor the notion of a living Constitution, I’ll be the first to admit that many brilliant intellectuals take to this interpretive philosophy.  After all, if some Constitutional provisions were interpreted exactly as they were understood when ratified, several folks outside the “white male” category would have things pretty rough.

There are a couple more points of departure from Justice Scalia that are worthy of note.  During her years on the bench, Justice Ginsburg has been an advocate for the use of foreign laws and norms to shape U.S. law in judicial opinions.  In addition, unlike Scalia’s strict adherence to textualism in statutory interpretation, Ginsburg is willing to look into legislative history when construing a law.

An Unexpected Friendship

The political climate in our country is toxic.  Two sides have emerged that can’t seem to agree on anything.  Strong disagreement has led to outright contempt.  Take last week’s Democratic Primary Debate for example:  When asked what enemies she is most proud to have made, Hilary Clinton responded:

“. . .[T]he NRA, the health insurance companies, the drug companies, the Iranians. . . [and] probably the Republicans.

(And the crowd goes wild!)

That response is telling and indicative of our culture:  A leading presidential candidate is declaring on national television that half of the country is her enemy.  (Anyone else thrilled for the presidential race and rhetoric to heat up next year?)

Divided as we are, there are still some leaders in the United States who insist on civility.  I believe Justice Ginsburg is one of them.  Over her judicial career, Ginsburg has developed a close friendship with Antonin Scalia.  In fact, Ginsburg considers Scalia her closest colleague on the Court, and Scalia reciprocates.

Scalia and Ginsburg often dine and attend the opera together (side note: composer and lyricist Derrick Wang actually created an Opera entitled Scalia/Ginsburg, and from what I’ve heard, it has gotten rave reviews).  How can this be?  These two are the leading voices of conservatism and liberalism, respectively, on the high Court.  Politically, they have almost nothing in common, and yet, they are cordial, even great friends.


Ginsburg and Scalia represent a bygone era in our history when folks could vehemently disagree on political issues and still be friends, or at least, still be civil.  I don’t know about you, but I think it’s refreshing to occasionally get away from the “if you don’t agree with me you’re my enemy” mentality.  Disagreement is okay, but it would behoove people to take Ginsburg and Scalia’s example and get to know people beyond their political label.  As Scalia once said of Ginsburg, “what’s not to like—except her views on the law?”

At the age of 82, one would think Justice Ginsburg’s days on the high Court are numbered.  But it’s hard to say—her mind appears to be as keen as ever.  When her tenure does come to an end, she will be remembered as a powerful advocate for gender equality whose work paved the way for countless women to advance in the legal profession; or as Justice Ginsburg herself put it, “woman are here to stay.”


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Today’s post is by Patrick Midla. Patrick recently graduated from the Indiana University Robert H. McKinney School of Law with a specialty in Constitutional Law. Friend him on Facebook here or follow him on Twitter here.