Judge Ginsburg: Cautious Liberal

June 20, 1993

As preparations get under way for Ruth Bader Ginsburg's Supreme Court confirmation hearings in mid-July, a speech she delivered in March has been attracting more attention than her opinions in her 13 years as a U.S. Circuit Court of Appeals judge. It is an insightful speech on the law and provides a look at her thought process. Excerpts from the speech begin on Page 1 of this section.

Reaction to the speech has been interesting. Some liberals, especially feminists, have expressed concern because she criticizes the 1973 landmark abortion decision of Roe vs. Wade. Some conservatives, especially anti-abortionists, are concerned because of the reasons she criticizes the decision. She says flatly the opinion went too far and is based on the wrong principle (a woman's right to privacy). But she says she is still pro-choice and would substitute a constitutionally mandated sexual equality as the supporting principle.

As we read the speech, conservatives have more to be concerned about than liberals. To find in the Constitution a hidden Equal Rights Amendment makes women's rights, including the right to an abortion, more protected than does a right to privacy. But we don't see any real reason for mainstream Americans to be worried. Judge Ginsburg is clearly a cautious jurist who knows the importance of a judiciary that, as a former law clerk of hers has put it, "achieves social justice one step at a time."

It is interesting that she cites the most liberalizing Supreme Court decision in modern history as a conservative outcome. That is Brown vs. Board of Education, the 1954 desegregation case. Judge Ginsburg said in her speech:

"It bears emphasis that Brown was not an altogether bold decision. First, Thurgood Marshall and those who worked with him in the campaign against racial injustice carefully set the stepping stones leading up to the landmark decision."

Legal journalists who have studied all of Judge Ginsburg's many opinions in detail offer the following assessments: On labor relations, "she defies easy categorization." On environmental matters, "her rulings do not evidence a predisposition toward ruling for or against environmental protection." On product liability, she has "evenly favored plaintiffs and defendants." On intellectual property, she has been "even-handed."

And she has ruled for and against criminal defendants in police behavior cases. Her record here appears left of center, however, as was her principal ruling in a civil rights case, against a discriminatory school's tax exempt status.

A computer study in 1988 showed she had voted with her Republican colleagues on the court of appeals in the District of Columbia more often than with Democrats. She seems to have moved slightly to the left since that study. We'd call her an ACLU conservative -- liberal on many issues, cautious on most remedies.

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