Justice Ruth Bader Ginsburg: Reflections and Remembrances
Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”
It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying the agency had not been precise enough in its allocations. EPA responded that the kind of precision industry wanted was nowhere required in the law and was, at any rate, impossible. When troubled winds swirl, one “canst not tell whence it cometh.”
In her majority opinion, Ginsburg rides that sacred thermal for only a moment before swooping into a forest of cost curves, computer models, and bureaucratic argle bargle. It’s a dizzying trip. But when, dozens of paragraphs later, the justice eventually pulls out of the canopy—having whisked you through “one-percent thresholds,” airshed “bubbles,” and a traumatic set of math-class hypotheticals (“Suppose then that States X and Y . . .”)—you find (if you’ve held on tight and not lost your lunch) that at the end of it all, EPA’s “Good Neighbor” policy makes some practical sense and fits easily with the plain language of the controlling statute. The Court sided with the agency 6-2. (Justice Alito did not participate.)
Having served at the EPA at the time the Cross-State Air Pollution Rule was being developed, the opinion is, for me, a special part of the justice’s legacy. Reading it this week with fresh eyes, what impresses me most is not Ginsburg’s capacious intellect or her terrier-like resolve to master the science, the math, and whatever else. It’s not even the comforting clarity with which she enlightens the reader. What makes me choke up is that lilting and timeless reflection on the vagaries of wind. With that passage, Ginsburg situates the prevailing regulatory drama within an ineffable human experience as old as time, one that you can hear, touch, and feel in your rattled bones. There’s beauty and history in that overture, and a blend of cultural traditions, too, as the woman who would become the Court’s longest-serving Jewish justice invokes the words of Jesus to open the reader’s mind and get to the business at hand.
As it did during her remarkable life, the wind continues to “bloweth and listeth.” Thus the passing of Justice Ruth Bader Ginsburg has predictably brought out the best and worst in us. On the one hand, Americans came together in mourning a truly beloved public figure, a woman whose life was about overcoming the barriers placed before her to rise to the very top of her profession, and then reaching out to help others follow in her footsteps, opening doors and clearing a path for them to be full participants in our society, economy, and public life. Justice Ginsburg's legacy is one of inclusion, fairness, equality, and as her title suggests, justice. But I’m afraid that those who regard such ideals as a threat to their power and status have made little effort to constrain their opportunism. Thus her passing has also triggered what promises to be a monumental power struggle as a president with sagging prospects for reelection and a Senate majority sensing its weakening grip on power aims to solidify a hard-right Supreme Court majority for years to come.
For the Member Scholars and staff of the Center for Progressive Reform, Justice Ginsburg's passing is a moment for reflection, a time to celebrate her achievements, mourn what has been lost, and gird for what is to come. Because her death has triggered such an outpouring of emotion, we asked the CPR family to offer reflections on her life and legacy, and have gathered them on this page.
—Rob Verchick, CPR Board President; Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University
I was fortunate to clerk for Justice Ruth Bader Ginsburg in the October Term of 2001. That year was notable less for blockbuster opinions and more for 9/11 and anthrax in the Court’s mailroom. None of that threw the Justice, who worked harder and smarter than anyone I had – and still have – ever met. It was an honor to clerk for her, a privilege to witness her relationship with her dear Marty, and a joy to later see her become the icon of millions as the Notorious RBG. In her death, the nation has suffered a grievous loss.
—Heather Elliott, CPR Member Scholar; Professor, University of Alabama School of Law
I never thought I would have the right to marry. Growing up, marriage was not only beyond my wildest dreams — but simply my comprehension. The law is so powerful; it can both crush and uplift classes of people by drawing lines around those who may and may not enjoy freedoms and rights. A profound example is the legal recognition of the right of same-sex couples to marry as decided by the Supreme Court in Obergefell v. Hodges, with Justice Ginsburg joining in the majority opinion. Obergefell isn’t just about the right to marry; the case is fundamentally about recognizing the basic human dignity of lesbian and gay people. By doing so, the Supreme Court removed one of our country’s cornerstones of discrimination.
Justice Ginsburg was an irreplaceable champion of the LGBTQ+ community because of her commitment to equal rights and justice under the law, both in majority opinions and in her ringing dissents, including the one she wrote in Masterpiece Cakeshop. My life has been profoundly impacted for the better by the jurisprudence of Justice Ginsburg, and my gratitude is immense.
—Laurie Ristino, CPR Interim Executive Director
'Compassion, outstanding analytical skill, remarkable ability'
My favorite judicial opinion by Justice Ginsburg was one she wrote on behalf of a majority of the Supreme Court in Friends of the Earth v. Laidlaw Environmental Services (TOC), 528 U.S. 167 (2000). The case concerned the standing-to-sue of citizens who had instituted a Clean Water Act citizen suit to redress illegal mercury discharges into a river in South Carolina. The U.S. District Court had imposed a civil penalty of over $400,000 on the defendant for violating its discharge permit. Bucking a Supreme Court trend towards ever-narrowing standing-to-sue requirements for environmental plaintiffs, Ginsburg noted that members of the plaintiff organization had foregone recreational activities and suffered decreases in property values as a result of the defendant's pollution. With characteristic concern for the impact of legal doctrines on ordinary individuals, she wrote, "The relevant showing for purposes of Article III standing is not injury to the environment but injury to the plaintiff." Justice Ruth Bader Ginsberg's finely crafted opinion in the important Laidlaw case is an excellent illustration of her compassion, her outstanding analytical skill, and her remarkable ability to move the Supreme Court in fruitful new directions.
— Joel Mintz, CPR Board Member; Professor Emeritus, Nova Southeastern College of Law
As a board member of both CPR and Planned Parenthood Advocates of Indiana and Kentucky, I am particularly grateful to Justice Ginsburg for her work in advancing equal rights for women and their ability to control their own bodies. In her confirmation hearing in 1993, she affirmatively declared the constitutional right to safe, legal abortion. "This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when Government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."
In the landmark Whole Woman's Health v Hellerstedt case in 2016, Justice Ginsburg led the Supreme Court in its historic decision to reaffirm the constitutional right to access legal abortion, ruling that two abortion restrictions in Texas were unconstitutional because they would cause an "undue burden" on access to safe, legal abortion. In her concurring opinion, she wrote, "Given those realities [that keep abortion access out of reach] it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions'...When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners...at great risk to their health and safety."
— Michele Janin, CPR Board Member
Justice Ruth Bader Ginsburg was a crucial voice and vote in many pivotal environmental law cases. Even in a case that disappointed some environmentalists – her majority opinion finding no room left by the Clean Air Act for federal public nuisance claims for greenhouse gas emissions leading to climate change – that opinion was also a crucial further affirmation of Massachusetts v. EPA. Massachusetts (in a majority opinion by Justice John Paul Stevens that Ginsburg joined) found that EPA had power to address climate change under the Clean Air Act, upheld standing of the state of Massachusetts to bring that suit, plus affirmed that agencies like EPA have to explain their choices under the criteria set by governing statutes.
This sort of respect for congressional policymaking, for citizens’ role in making our laws real, and not skewing a law’s enforcement so industry is always favored, was characteristic of Justice Ginsburg. She was fair-minded and respectful of the law and others, even when disagreeing. She embraced the judicial role of ensuring that agencies do their work with integrity, with logical reasoning, and with grappling with underlying data and science. She read statutes to make sense and work, a notable contrast with her friend but frequent Supreme Court adversary, Justice Antonin Scalia. He would often focus on a snippet of text and then jump to dictionaries or Latin interpretive canons, and from that tidbit derive what with remarkable consistency ended up being a statute-deflating conclusion. Justice Ginsburg, in contrast, looked at how the overall statutory text worked, and how judicial interpretive choices would mesh or collide with each statute’s expressed goals.
One of her most important opinions – on citizen suit standing – has received too little mention in the days following her death. In a series of cases, Justice Scalia had penned majority or split Court opinions undercutting citizen standing to be heard in court, even where Congress had expressly created citizen suit enforcement provisions to challenge statutory violations by anyone, including the government. These Scalia opinions, if read expansively or further developed, threatened to create enduring substantial barriers to citizen enforcement. In the Friends of the Earth v. Laidlaw decision, Justice Ginsburg deftly constructed a strong seven-justice majority opinion that cut back on Justice Scalia’s anti-standing project, stating that the crucial test for standing was not litigants’ ability to prove resulting harm to the environment – often hard with large air sheds and moving waters – but violations of the law leading to harms to citizens’ interests. And her opinion recognized the constitutional legitimacy of an array of connections and interests that can be imperiled by illegal polluting conduct. Citizens’ crucial roles in making the law real were protected in this pivotal opinion by Justice Ginsburg. And because standing hurdles now have a substantial constitutional component, how the newly reconfigured Supreme Court in the future revisits and limits or reifies this important opinion will be a crucial fork in the road for our nation’s environmental laws.
— William Buzbee, CPR Member Scholar; Professor, Georgetown Law Center
Several threads run through the jurisprudence that Justice Ginsburg accumulated across her storied career, and I’ll leave it to others to more expertly articulate them. For me, one that stands out is her recognition that justice wasn’t just a catalog of basic rights and protections that all who are subject to our laws ought to enjoy; it was about ensuring that those rights and protections actually mean something to the individuals in whose hands they were to be entrusted. Justice Ginsburg understood that it was individual agency – the ability of all of us to be the authors of our own stories – that ultimately gave life to the concept of justice she fought so hard to defend. More than that, though, she recognized it wasn’t just the legitimate function, but indeed the solemn obligation of our government to help create the conditions for the meaningful exercise of individual agency. No doubt, Justice Ginsburg developed this abiding faith in the possibilities of what one might call “freedom with purpose” through her decades of advocacy on behalf of women’s equality. And she gave it voice in many of her opinions as a Supreme Court Justice.
One of the memorable came in her majority opinion in Olmstead v. L.C., which established a presumptive right for individuals with mental disabilities to take their place in the community rather than being confined to an institution. This holding was motivated in part by Ginsburg’s concern that “[i]n order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations.” While many of us might take for granted something as basic as being a community member as constitutive of our identity and sense of self-worth, Ginsburg recognized its significance as a source of empowerment and dignity for individuals with mental illness. And she recognized the unique role that government could play and should play in accomplishing this end. Her fight for meaningful justice and individual empowerment remains ongoing. We can honor her legacy by keeping that fight alive no matter how long the odds we face in the future.
—James Goodwin, CPR Senior Policy Analyst
'Inspiration from her advocacy and jurisprudence'To me, there were many things that defined Justice Ruth Bader Ginsburg. Among them were her unwavering commitment to equal justice under law; her understanding of the constitutional soundness of an active government role in protecting all people from pollution, hazardous chemicals, and environmental harms; and her professionalism, even when she vociferously disagreed with her colleagues. I hope that our nation will draw inspiration from her advocacy and jurisprudence, and that we will one day live up to the values and ideals that Justice Ginsburg dedicated her life to uphold and advance.
—Brian Gumm, CPR Communications Director
Justice Ginsburg was a pioneer on many fronts, but in at least one respect, her rise to the Court marked an ending. In 1993, when President Clinton nominated her to the Court, the nation was barely two years removed from the pitched battle over the confirmation of Justice Clarence Thomas – a hard-fought struggle even before Anita Hill's experience came to light. Thomas's track record foretold exactly the ideological approach he would bring to the bench, and progressives were rightly concerned about filling Justice Thurgood Marshall's seat with someone who held such a cramped view of civil rights and individual liberties.
That nomination was preceded four years earlier by the titanic struggle over Robert Bork's nomination to the Court, a fight that marked a turning point in Supreme Court nomination history because it was the one that brought nominees' ideological disposition squarely to the forefront. Before Bork, objections to nominees' ideology were a factor for consideration on both ends of Pennsylvania Avenue, but raising ideology out loud was viewed as a violation of the somewhat clubby conventions of judicial confirmations. The corollary was that presidents were somewhat restrained in their selection of nominees, avoiding those with sharp ideological edges. Ronald Reagan had other plans, nominating a series of flat-out right-wingers to the bench, an effort that reached its apex with Bork.
Thomas was George H.W. Bush's lone appointment to the Supreme Court, and Bush was determined to lock in a conservative vote with his one at-bat. Clinton had two nominees, Ginsburg and Stephen Breyer, both of whom encountered only minimal opposition in their confirmations, partly because a Democratic-controlled Senate was confirming a Democratic president's nominee, and partly because they were such resoundingly solid choices. Ginsburg had just three votes cast against her.
And that was the last time a Supreme Court nominee encountered so little opposition. Breyer had nine votes against the following year, and every nomination since then has seen 20 or more. There's no reason to expect otherwise in the nominations to come, at least for the foreseeable future.
In the 1980s and 1990s, I worked for an organization that was deeply involved in the Bork, Kennedy, Thomas, Ginsburg, and Breyer nominations. As painful, even divisive, as the fights over nominations are today, the stakes are too high to return to the days when the "deference" shown to presidents when it came to Supreme Court nominees was an effective rubber stamp, no matter the impact on health, safety, the environment, civil rights and liberties, election integrity, and more. In that sense, Justice Ginsburg's confirmation, just like her passing, marked the end of an era.
—Matthew Freeman, CPR Media Consultant