Ruth Bader Ginsburg's Opinions

Ruth Bader Ginsburg's Opinions

During her decade on the Court, the Justice has written numerous opinions. Following are synopses of some of her most significant opinions prepared by Professor Gillian Metzger '95, as well as two reminiscences from former clerks about working with the Justice in chambers.

Photo: Dustin Ross

In a fitting capstone to her career as an advocate for gender equality, Justice Ginsburg wrote the decision in United States v. Virginia, 518 U.S. 515 (1996), which held that Virginia acted unconstitutionally in refusing to admit women to the Virginia Military Institute (VMI). Justice Ginsburg's opinion eloquently stated the core principle underlying constitutional protection against gender discrimination: "Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature - equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities." Justice Ginsburg found that Virginia failed to provide the "exceedingly persuasive justification" needed to sustain gender-based government action. Virginia had defended its categorical exclusion of women from VMI offered on the grounds that admitting women would destroy VMI's adversative training method because such training was fundamentally unsuited for women. According to Justice Ginsburg, this justification rested on overly broad generalizations about women in disregard of their individual merit, and represented precisely the type of self-fulfilling prophecies once routinely used to deny rights or opportunities to women.

M.L.B. V. S.L.J.
In M.L.B. v. S.L.J., 519 U.S. 102 (1996), Justice Ginsburg's opinion held that a state may not deny a parent, because of her poverty, appellate review of the sufficiency of the evidence of a parental termination decree. As a result, Mississippi violated the equal protection and due process clauses of Fourteenth Amendment when it required an indigent mother to pay record preparation fees in advance in order to appeal a trial court decision terminating her parental rights.

Several of the Justice's most important opinions address procedural and jurisdictional questions, areas with which the Justice was well-familiar given her prior experience teaching civil procedure and her years on the D.C. Circuit. A prominent example is Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), which arose out of a district court's certification of a sprawling class of persons exposed to asbestos, including both those currently injured and those who had yet to manifest physical injury. The Court held that certification of the class violated the requirements of Federal Rule of Civil Procedure 23. In a careful and detailed opinion, Justice Ginsburg emphasized that Rule 23 is fundamentally concerned with insuring that a proposed class has sufficient unity so that absentees can fairly be bound by the class representatives' decisions. This concern persists, she wrote, even when settlement rather than trial is involved. She then concluded that the proposed class failed to meet the adequate representation requirement of Rule 23(a), given the divergent interests of currently injured as opposed to exposure-only plaintiffs; she similarly found that the shared experience of asbestos exposure or the benefits that asbestos-exposed persons might obtain from a grand-scale compensation scheme failed to meet Rule 23(b)'s requirement that common questions of law and fact predominate in individual class members' controversies. While acknowledging that a nationwide administrative claims processing regime might provide the most secure, fair, and efficient means of compensating victims of asbestos exposure, Justice Ginsburg emphasized that Congress had not adopted such a solution and that the courts were bound to adhere to the procedural requirements of Rule 23 that Congress had imposed.

Most recently, in Ring v. Arizona, 536 U.S. 584 (2002), Justice Ginsburg authored the majority opinion holding that the Sixth Amendment prohibits a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.  Ring involved a challenge to Arizona's capital sentencing scheme, under which a defendant cannot receive a death sentence unless the judge makes the factual determination that a statutory aggravating factor exists. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court had ruled that if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact, however labeled by the State, must be found by a jury beyond a reasonable doubt. In Ring, Justice Ginsburg concluded that Arizona's scheme was irreconcilable with Apprendi, because under Arizona law enumerated aggravating factors operate as the functional equivalent of an element of a greater offense. As a result, the Sixth Amendment jury trial right required that such aggravating factors be found by a jury.

Justice Ginsburg has issued several notable dissents during her tenure on the Court, particularly in cases where the Court has rejected affirmative action programs. In her second term, she dissented in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), which involved a constitutional challenge to a federal program under which small businesses controlled by certain racial minorities are presumed to be disadvantaged and therefore eligible for monetary incentives. The Court, in a five-to-four decision, held that all government racial classifications were subject to strict scrutiny and remanded for the lower courts to subject the program at issue to more searching review. In her dissent Justice Ginsburg underscored the lingering effects of our nation's past racial discrimination and the government's need to be able to address that discrimination with suitably tailored programs - points on which, she emphasized, a majority of the Court agreed. Justice Ginsburg's emphasis on this was proved true just last term in Grutter v. Bollinger, 123 S. Ct. 2325 (2003), where a majority of the Court (including Justice Ginsburg) sustained the use of race-based affirmative action by the University of Michigan's law school. When a majority of the Court simultaneously invalidated the affirmative action program used by the University of Michigan for its undergraduate admissions in Gratz v. Bollinger, 123 S. Ct. 2411 (2003), Justice Ginsburg again dissented, arguing that the Court erred in not adequately distinguishing between policies of racial inclusion, aimed at ending the large racial disparities that endure in our society, and policies of racial exclusion.

Similar concern to preserve room for governments to take adequate account of the continuing effects of race are evident in Justice Ginsburg's dissent in Miller v. Johnson, 515 U.S. 900 (1995). Writing for herself and three others, Justice Ginsburg dissented from the Court's decision holding one of Georgia's post-1990 congressional districts to be an unconstitutional racial gerrymander. She argued that the record in the case did not demonstrate that the state legislature had been unconstitutionally racially motivated in drawing the district's lines. She also critiqued the Court's heightened scrutiny of legislative redistricting to discern impermissible uses of race, maintaining that such scrutiny is particularly inappropriate to districting contexts where legislatures are necessarily focused on groups and the protections of the Voting Rights Act preclude the need for enhanced federal court involvement to prevent unconstitutional racial discrimination.

Deference to other branches and levels of government is a consistent theme of Justice Ginsburg's jurisprudence, and it featured in one of the Justice's most famous dissents, her opinion in Bush v. Gore, 531 U.S. 98 (2000). There Justice Ginsburg vehemently disagreed with her colleagues' decision to halt the presidential election recount ordered by the Florida Supreme Court. She argued that longstanding traditions of deference to state court interpretations of state law precluded intervention on the ground that the Supreme Court disagreed with the Florida court's interpretation of governing Florida statutes, and that questions regarding the practical possibility of a timely recount or consequences of missed federal deadlines should be left to Florida officials and Congress.