Ginsburg's changing voice

June 29, 2007|By ELLEN GOODMAN

BOSTON -- Now, in the season of her discontent, it is well to remember that Ruth Bader Ginsburg was always called a moderate. In fact, when she was nominated to be the second woman on the Supreme Court, there were feminists who added another modifier: too moderate.

I always thought that was a bad rap. Justice Ginsburg went to law school when textbooks still read: "Land, like woman, was meant to be possessed." Her dean asked the nine women in her class of 500 why they were taking a man's seat. She was accepted for a clerkship only after the judge found an understudy in case she couldn't hack it. It's not surprising that Justice Ginsburg often refers to herself as a "way-paver."

At the same time, the legal strategy that she devised in the 1970s to upend the idea that men and women live in different legal spheres was a careful, incremental bit of roadwork. Her plaintiffs in a series of successful sex-discrimination lawsuits were often men - such as a widowed father ineligible for Social Security - chosen to appeal to male judges.

After her confirmation, Justice Ginsburg was still called "a partisan of judicial restraint." Not for her were the outbursts of friend and fellow opera buff, Justice Antonin Scalia. She sought to lower the acrimony. The flashiest decision she wrote was for the seven justices who struck down the all-male status of the Virginia Military Institute.

But this year we are witnessing - what shall we call it? The radicalization of Ruth Bader Ginsburg? The transformation of the 74-year-old justice who is watching a court undo her life's work?

This is the first year since Sandra Day O'Connor's retirement. As Justice Ginsburg said of Justice O'Connor, "We divide on a lot of important questions, but we have had the experience of growing up women, and we have certain sensitivities that our male colleagues lack." If Justice O'Connor's exit made a difference personally, it made more of a difference judicially. So, twice this term, when the 5-4 majority of the Roberts court dropped its opinions like cluster bombs on the road she paved, Justice Ginsburg took the unusual stance of reading her powerful dissents, slowly, unequivocally and aloud in the courtroom.

The first time was when the partial-birth abortion ban was upheld. In his opinion, Justice Anthony M. Kennedy claimed to be protecting women from their own regrets. Abortion was harmful to a woman, he implied, because it violated her true nature as a mother.

But Justice Ginsburg retorted, "This way of protecting women recalls ancient notions about women's place in society and under the Constitution - ideas that have long since been discredited." Indeed, she had helped discredit them.

The second time was after the outrageous decision on pay discrimination. The court ruled against Lilly M. Ledbetter, the one woman among 16 Goodyear supervisors who was paid far less throughout her career. Tough luck, the court said; discrimination lawsuits had to be filed within 180 days after the pay was set.

This time, Justice Ginsburg not only dissented but called upon Congress to change the law and thereby overrule the court. The lone woman on this bench explained in a resonant sentence: "An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably, may be anxious to avoid making waves."

Avoid making waves? "This has been Justice Ginsburg's MO," says Goodwin Liu, a former clerk and now a law professor at the University of California, Berkeley. "She has tried to be collegial, respectful on the court. She's not a screamer. So it's unusual to be reading opinions that say, `Enough is enough.'"

Many women of a certain age are watching with dismay as hard-won progress is rolled back. Justice Ginsburg once predicted that women would achieve full legal equality by 1978. Maybe it's the times that provoke new strategies. Enough is enough. "She's still a voice of moderation," says Yale Law School's Judith Resnik. "It's the court that has become radical."

So as this court session ends, Ruth Bader Ginsburg raised the decibel level and the alarm. At 74, she may find her most powerful role in dissent. The way-paver is fast becoming a wave-maker.

Ellen Goodman is a columnist for The Boston Globe. Her column appears Fridays in The Sun. Her e-mail is ellengoodman@globe.com.

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