Commentary: Ruth Bader Ginsburg was an 'impenetrable bulwark' against majoritarian abuse

Geoffrey R. Stone, Chicago Tribune
·5 min read

Ruth Bader Ginsburg, who died Friday at 87, was one of the most influential lawyers and jurists in our nation’s history.

Born in 1933 in Brooklyn, New York, to Jewish parents, Ginsburg graduated high school at 15, graduated Phi Beta Kappa from Cornell University and a few years later enrolled in Harvard Law School, where the dean asked the handful of women students, “Why are you at Harvard Law School, taking the place of a man?”

After her beloved husband, Martin, took a job in New York City, she transferred to Columbia Law School, where she graduated in 1959 tied for first in her class. But even exceptional women had few opportunities for traditional legal employment in those days, and Ginsburg had difficulty finding a job.

Over the next quarter-century, though, Ginsburg worked as a professor at Rutgers Law School, became the first tenured woman professor at Columbia Law School, co-founded the Women’s Rights Project at the American Civil Liberties Union, participated in more than 300 gender discrimination cases and argued six such cases before the Supreme Court of the United States (winning five of them). In 1980, she was appointed by President Jimmy Carter to the United States Court of Appeals for the District of Columbia Circuit, and in 1993 she was appointed by President Bill Clinton to serve as a Justice on the Supreme Court, where she served for more than a quarter-century.

When she was appointed to the Supreme Court, Ginsburg was viewed as a moderate liberal. Over time, though, and as the justices on the Supreme Court moved ever further to the right, she came increasingly to be viewed as one of the Court’s four “liberal” justices. But what does that mean? Throughout her career on the Court, Ginsburg exemplified a distinctive and — in my view — correct understanding of a justice’s approach to constitutional law. What does that mean?

We live in a democracy, where the majority generally has the authority to do what it sees fit. But, as the framers of our Constitution understood, although a democracy may well be the best form of government, it has its flaws.

It is useful to remember that the original Constitution did not have a Bill of Rights. James Madison, perhaps the most important of the framers, did not believe that a Bill of Rights would serve any purpose. Individual rights, he feared, would inevitably be at the mercy of majorities in the political branches of government. As he wrote Thomas Jefferson, who at the time was representing our nation in Paris, a Bill of Rights would not provide any realistic “check on the passions and interests of the popular majorities.” “What use,” he asked Jefferson, “can a bill of rights serve in popular governments?”

Jefferson wrote back that courts could ensure that the Bill of Rights is effective, for the judiciary, “if rendered independent, … merits great confidence for their learning and integrity.” Shortly thereafter, Madison proposed a Bill of Rights, noting that “independent tribunals of justice will consider themselves … the guardian of those rights” and will “resist every encroachment upon rights expressly stipulated for in the constitution.”

What worried Madison and Jefferson was the danger that, in a democracy, the majority will disregard the rights guaranteed in the Constitution and will do whatever they please. It thus falls to the courts — and especially to the justices of the Supreme Court — to guard against majoritarian abuse of power. But what are the circumstances in which majorities are most likely to abuse that power and in which judicial intervention is most essential?

In the 1930s, the Supreme Court observed, in a famous footnote in the U.S. v. Carolene Products Co. case, that in a democracy the judiciary should generally give deference to the judgments of the elected branches of government. But the court identified two critical situations in which such deference is unwarranted and in which courts, in order to carry out the Madison-Jefferson vision of our Constitution, should be especially skeptical of majoritarian actions.

First, when the majority enacts legislation that disadvantages those whom the majority sees as the “other” — those whose interests will unfairly be disregarded by the majority because it is either hostile or indifferent to the rights of those individuals. Second, when the majority enacts legislation that is designed to manipulate the electoral and political process in order to ensure that they remain in power. These are the two situations — involving threats to equality and democracy — in which it is essential for the judiciary to guard against majoritarian actions that violate the central norms and aspirations of our Constitution. It is especially in these situations, in Madison’s words, that courts, “the guardians” of our Constitution, must serve as “an impenetrable bulwark” against majoritarian abuse.

It was this philosophy, and this understanding of the most fundamental responsibilities of the Supreme Court, that motivated Justice Ginsburg’s jurisprudence. When laws disadvantaged African Americans, women, immigrants, gays and lesbians, political dissidents, persons accused of crime and other disadvantaged minorities, Ginsburg correctly served as a “guardian” of our most fundamental liberties, and when laws regulated the political process in an effort to distort and to abuse that process, as in cases involving voting qualifications and gerrymandering, Ginsburg properly acted as “an impenetrable bulwark” against majoritarian abuse. These two principles were, quite properly, the core principles of Justice Ginsburg’s jurisprudence.

Sadly, her more conservative colleagues on the Supreme Court have too often failed to guard against these fundamental majoritarian abuses of the democratic process and, even worse, have too often invalidated laws that either were designed to correct deficiencies in these realms or otherwise did not call for active judicial intervention — as with laws regulating money in the political process, affirmative action policies, laws guaranteeing equal voting rights and laws regulating guns.

My central point here is simple. Justice Ginsburg embodied the most fundamental and most appropriate approach to Supreme Court constitutional interpretation. She worked tirelessly throughout her tenure in a principled and thoughtful manner to protect the most fundamental principles of our democracy, while at the same time allowing our democracy to function when there was no legitimate need for judicial intervention. In so doing, she lived up to the most central aspirations of the framers of our Constitution — in ways that her evermore conservative colleagues have, sadly, abandoned.



Geoffrey R. Stone is the Edward H. Levi Distinguished Professor at The University of Chicago.


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