Samuel R. Bagenstos: Ruth Bader Ginsburg dedicated her life to expanding the circle of ‘We the People.’

October 6, 2020 10:28 am

Supreme Court Justice Ruth Bader Ginsburg delivers remarks at the Georgetown Law Center on September 12, 2019, in Washington, DC. Justice Ginsburg spoke to over 300 attendees about the Supreme Court’s previous term. | Tom Brenner/Getty Images

When a figure as important as Justice Ruth Bader Ginsburg (RGB) dies, it is appropriate to reflect on and celebrate her legacy. Justice Ginsburg’s achievements—both before and after she took her seat on the Supreme Court’s bench—were great. But her legacy is now under extreme threat.

I mean this not just in the obvious sense—that Amy Coney Barrett, whom President Donald Trump has nominated to fill her seat, looks to be a vote to reverse the decisions to which RBG signed on, and to entrench the decisions from which RBG dissented. (Although that is, of course, true.)

My point is broader: The last four years—and the response to the COVID pandemic in particular—have shown that a large fraction of our fellow Americans reject the credo to which Justice Ginsburg devoted her career.

The animating spirit of RBG’s litigation and her jurisprudence was an effort to realize the promise of our Constitution’s preamble, and particularly its opening words: “We the People of the United States, in order to form a more perfect Union.”

Justice Ginsburg explained the point in numerous public speeches and lectures. (You can view one here.) The founders’ understanding of “We the People” actually excluded a whole lot of folks. As she put it:

“Think about how things were in 1787. Who were “We the people”? Certainly not people who were held in human bondage because the original Constitution preserves slavery. Certainly not women whatever their color and not even men who own no property.”

What helped to make us a “more perfect Union,” she said, was the efforts of social movements, political actors, and—yes—courts over time to widen the circle of “We the People.”

When then-professor Ruth Bader Ginsburg was litigating the cases that would transform the law of sex equality, she was helping to expand the concept of “We the People.” It is stunning to recall that up until RBG’s Supreme Court victory in Reed v. Reed—a case decided in 1971—the court had never invalidated a law that discriminated on the basis of sex, even though the statute books were full of such sex distinctions.

In the 1948 case of Goesaert v. Cleary, the court upheld a Michigan law that prohibited women from tending bar (unless they were the wife or daughter of the bar’s owner). Speaking through the reputedly progressive Justice Felix Frankfurter, the court said that “bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures,” and that Michigan’s Legislature could legitimately conclude “that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight.”

Even the liberal Warren Court held, in the 1961 case of Hoyt v. Florida, that a state could categorically exempt women from the obligation of jury service. “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men,” the court explained, “woman is still regarded as the center of home and family life.”

RBG’s victory in Reed began a true constitutional revolution. By the end of the 1970s, the Fourteenth Amendment’s Equal Protection Clause was finally providing a robust remedy for women against state discrimination. Once she was on the Supreme Court, Justice Ginsburg cemented those protections in her 1996 opinion invalidating the Virginia Military Institute’s male-only admissions policy.

But it was not just women. Throughout her time on the bench, Justice Ginsburg fought to protect racial minorities. Her dissent in Missouri v. Jenkins—a case early in her tenure in which the Rehnquist Court declared that school desegregation in Kansas City had gone on for too long—persuasively argued that “compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the District Court has been evanescent.” And her dissent in the Shelby County case—where a bare 5-4 majority of the Roberts Court cut out the “preclearance” provision that was the heart of the Voting Rights Act—was a tour de force that earned her the nickname “Notorious RBG.”

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” she said in the opinion’s most memorable passage, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Even on those issues where she seemed to lack the same egalitarian vision early in her career—notably cases involving criminal justice, and those involving Indian tribal nations—she had moved in a more embracing direction by the end.

More important than the results for which Justice Ginsburg argued, though, was the social and constitutional vision on which she relied. It was a vision of community—the notion that we are stronger together than we are separately.

Her dissent in the 2018 case of Epic Systems v. Lewis offers one illustration. There, the Roberts Court’s conservative majority said that employers may, as a condition of employment, require workers to sign away their right to join together in class actions challenging unlawful discrimination and pay practices. Writing for the four more liberal justices, Justice Ginsburg argued that these employer requirements violated a basic principle of our labor laws—that “[f]or workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers.” Workers, she said, had the right to band together to achieve collectively what they cannot achieve separately.

Justice Ginsburg’s opinion in the 2012 National Federation of Independent Business v. Sebelius case may be an even more striking illustration of the point. There, the conservative majority of the Supreme Court said that the federal government’s power to regulate commerce did not authorize it to force unwilling individuals into the health insurance marketplace by imposing a mandate. Dissenting on that point, Justice Ginsburg argued that we are all in the health insurance marketplace; we just don’t know exactly when we’ll need care. “If unwanted today,” she said, “medical service secured by insurance may be desperately needed tomorrow.”

By requiring everyone who will need health care to be a part of the insurance pool today, Justice Ginsburg, argued, the result is to lighten the burden on society as a whole. Prior to Obamacare, those who decided to go without insurance could nonetheless count on receiving emergency medical care when they needed it, at the expense of those who had purchased insurance (and of the healthcare system as a whole). “By requiring the healthy uninsured to obtain insurance or pay a penalty structured as a tax,” Justice Ginsburg argued, the individual mandate “ends the free ride these individuals currently enjoy.” Her opinion recognized that, as members of a society, we have obligations to each other. We can’t just go it alone, heedless of the effects of our actions on our fellow members of the community.

But going it alone, and disregarding the effects of our actions on our fellow members of the community, has effectively become the credo of one of our two major political parties. The challenge to Obamacare (which is back before the Supreme Court this term) was an early indication. But the response to the COVID-19 pandemic from President Trump and other officeholders in his party highlights the point in bright red neon letters (one of Justice Ginsburg’s favorite expressions).

I have written for this publication before about how the response by some Republican leaders to COVID reflects the view “that there is no society, that government cannot help us, that each of us is in it for ourselves”—a view that, I said, “has deprived our communities of strength and connection.”

When those leaders declare that they will not accept mask mandates, because individuals “know how best to protect their customers, their students, their employees, their families” from the virus, what they are really saying is that we don’t have obligations to each other. Whether I take actions that put you at risk should not be a matter of my personal choice. It is something we need to address together, as a community.

And we have to remember which people are likely to bear the greatest risks here. It is the front-line workers, it is those who live in migrant camps, and it is those who work shoulder-to-shoulder in meatpacking plants. It is those who, because unemployment benefits and paid leave are too limited, are forced to put themselves at risk to feed their families and keep a roof over their heads. Because of our nation’s legacy of discrimination and segregation, the people who are likely to be most at risk from the go-it-alone policy are disproportionately the members of those groups who were not a part of “We the People” at the founding.

And that is what—beyond the obvious immediate effects on the Supreme Court’s jurisprudence—makes Justice Ginsburg’s death so untimely. RBG spent her life carrying forward the work of activists and movements that had fought so hard to expand the circle of We the People. And she died at a moment when powerful forces are aiming to constrict the circle once again.

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Samuel Bagenstos
Samuel Bagenstos

Samuel R. Bagenstos is the Frank G. Millard Professor of Law at the University of Michigan Law School and a member of the University of Michigan Institute for Healthcare Policy and Innovation. During the Obama Administration, he served as Principal Deputy Assistant Attorney General for Civil Rights in the U.S. Department of Justice. He was nominated by the Democratic Party to run for Michigan Supreme Court in 2018.