Mindy Cooper's List: GOV303: RBGinsburg Assigment

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  To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.
  
  "Who were 'We the People' in 1787? You would not be among 'We the People.' African Americans would not be among the people," Ginsburg tells Stahl.

• The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation's federal courts. ⁿ¹ My remarks touch on both themes; I will speak first about collegiality in style, and next, about moderation in the substance of appellate decisionmaking. My views on these matters reflect experiences over a span of three decades. They have been shaped from my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union's Women's Rights Project, and most recently during the nearly thirteen years I have had the good fortune to serve on the United States Court of Appeals for the District of Columbia Circuit. What I hope to convey about courts, I believe, is in line with the founders' - Madison's and Hamilton's - expec [*1186]  tation. As a preface, I will comment on that expectation.
• I spoke of the founders' "original understanding" a moment ago, and that expression, as I comprehend it, bears clarification in this preface. In his 1987 Foreword to The Evolving Constitution, the second collection of Madison Lectures, Norman Dorsen stressed, as Chief Justice John Marshall did in 1819, that our fundamental instrument of govern-
   [*1187]  ment is an evolving document, "an instrument "intended to endure for ages to come.' " ⁿ⁶ Professor Dorsen quoted Chief Justice Charles Evans Hughes's 1934 rejection of the notion that "the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them." ⁿ⁷ That understanding, as Professor Dorsen commented, has been and should remain common ground. ⁿ⁸
• In the recent decade and more of bicentennial celebrations, Supreme Court Justice Thurgood Marshall reminded us that while the Constitution's endurance is indeed something to celebrate, the framers had a distinctly limited vision of those who counted among "We the People." ⁿ⁹ Qualified voters when the nation was new bore more than a passing resemblance to the framers: the franchise was confined to property-owning adult white males, people free from dependence on others, and therefore considered trustworthy citizens, not susceptible to influence or control by masters, overlords, or supervisors. ⁿ¹⁰ In 1787, only five of the thirteen states had abolished slavery, women did not count as part of the franchise-holding, politically active community in any state, and wealth qualifications severely limited voter eligibility even among white males.

• Measured Motions in Third Branch Decisionmaking

  Moving from the style to the substance of third branch decisionmaking, I will stress in the remainder of these remarks that judges play an interdependent part in our democracy. They do not alone shape legal doctrine but, as I suggested at the outset, they participate in a dialogue with other organs of government, and with the people as well. ⁿ⁷⁶ "Judges do and must legislate," Justice Holmes "recognized without hesitation," but "they can do so," he cautioned, "only interstitially; they are confined from molar to molecular motions." ⁿ⁷⁷ Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. ⁿ⁷⁸ The most prominent example in recent decades is Roe v. Wade. ⁿ⁷⁹ To illustrate my point, I have contrasted that breathtaking 1973 decision with the Court's more cautious dispositions, contemporaneous with Roe, in cases involving explicitly sex-based classi-
  fications, ⁿ⁸⁰ and will further develop that comparison here.  [*1199] 
• The Roe decision might have been less of a storm center ⁿ⁸⁹ had it both homed in more precisely on the women's equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decisionmaking the Court employed in the 1970s gender classification cases.

• Roe v. Wade, ⁿ¹²⁶ in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures "toward liberalization of abortion statutes." ⁿ¹²⁷ That movement for legislative change ran parallel to another law revision effort then underway - the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s. ⁿ¹²⁸

  No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court's delineation of abortion regulation still permissible. ⁿ¹²⁹ Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.

• Constitutional review by courts is an institution that has been for some two centuries our nation's hallmark and pride. ⁿ¹³⁰ Two extreme modes of court intervention in social change processes, however, have  [*1206]  placed stress on the institution. At one extreme, the Supreme Court steps boldly in front of the political process, as some believe it did in Roe. ⁿ¹³¹ At the opposite extreme, the Court in the early part of the twentieth century found - or thrust - itself into the rearguard opposing change, striking down, as unconstitutional, laws embodying a new philosophy of economic regulation at odds with the nineteenth century's laissez-faire approach. ⁿ¹³² Decisions at both of these poles yielded outcries against the judiciary in certain quarters. The Supreme Court, particularly, was labeled "activist" or "imperial," and its precarious position as final arbiter of constitutional questions was exposed. ⁿ¹³³

  I do not suggest that the Court should never step ahead of the political branches in pursuit of a constitutional precept. Brown v. Board of Education, ⁿ¹³⁴ the 1954 decision declaring racial segregation in public schools offensive to the equal protection principle, is the case that best fits the bill. Past the midpoint of the twentieth century, apartheid remained the law-enforced system in several states, shielded by a con-
  stitutional interpretation the Court itself advanced at the turn of the century - the "separate but equal" doctrine. ⁿ¹³⁵
• It bears emphasis, however, 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 ruling. ⁿ¹³⁸ Pathmarkers of the same kind had not been installed prior to the Court's decision in Roe. ⁿ¹³⁹ Second, Brown launched no broadside attack on the Jim Crow system in all its institutional manifestations. Instead, the Court concentrated on segregated schools; ⁿ¹⁴⁰ it left the follow-up for other days and future cases. A burgeoning civil rights movement - which Brown helped to propel - culminating in the Civil Rights Act of 1964, ⁿ¹⁴¹ set the stage for the Court's ultimate total rejection of Jim Crow legislation.
• The framers of the Constitution allowed to rest in the Court's hands large authority to rule on the Constitution's meaning; but the framers, as I noted at the outset, armed the Court with no swords to carry out its pronouncements. President Andrew Jackson in 1832, according to an often-told legend, said of a Supreme Court decision he did not like: "The Chief Justice has made his decision, now let him enforce it." ⁿ¹⁴⁴ With prestige to persuade, but not physical power to enforce, with a will for self-preservation and the knowledge that they are not "a bevy of Platonic Guardians," ⁿ¹⁴⁵ the Justices generally follow, they do not lead, changes taking place elsewhere in society. ⁿ¹⁴⁶ But without taking giant strides and thereby risking a backlash too forceful to contain, the Court, through constitutional adjudication, can reinforce or signal a green light for a social change. In most of the post-1970 gender-classification cases, unlike Roe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive. Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue. The most recent Planned Parenthood decision ⁿ¹⁴⁷ notably retreats from Roe ⁿ¹⁴⁸ and further excludes from the High Court's protection women lacking the means or the sophistication to surmount burdensome legislation. ⁿ¹⁴⁹ The latest decision may have had the sanguine effect, however, of contributing to the ongoing revitalization in the 1980s and 1990s of the political movement in progress in the early 1970s, a movement that addressed not simply or dominantly the courts but primarily the people's representatives and the people themselves. That renewed force, one may hope, will - within a relatively short span - yield an enduring resolution of this  [*1209]  vital matter in a way that affirms the dignity and equality of women. ⁿ¹⁵⁰

• Professor Gunther had in mind a great jurist, Judge Learned Hand, whose biography Professor Gunther is just now completing. The good judge, Professor Gunther said, is "openminded and detached, ... heedful of limitations stemming from the judge's own competence and, above all, from the presuppositions of our constitutional scheme; that judge ... recognizes that a felt need to act only interstitially does not mean relegation of judges to a trivial or mechanical role, but rather affords the most responsible room for creative, important judicial contributions." ⁿ¹⁵¹

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• As Constitution readers know, the word "equal" or "equality" does not even appear in the body of the U.S. Constitution or in the first ten amendments, ratified in 1791, the amendments composing the Bill of Rights. What explains the absence of any reference to equality in the original U.S. Constitution, despite the prominence of that idea in the contemporaneous (1789) French Declaration of the Rights of Man, which declared (in article 1): "Men are born free and remain free and equal in rights," and (in article 6) "Law must be the same for all, whether it protects or punishes." To compound the question, why did the eighteenth century U.S. Constitution fail to incorporate the 1776 Declaration of Independence, which declared in ringing tones:
• Not until 1868, after the Civil War ended slavery, did the U.S. Constitution provide, as it has ever since, that no State "shall . . . deny to any person the equal protection of the laws." And women did not become part of the U.S. political community until 1920 when, by constitutional amendment, they gained the right to vote.

• Thurgood Marshall, leader of the struggle in the courts for an end to odious racial classifications, said prior to his 1991 retirement as a Supreme Court Justice, that he did not celebrate what the Constitution was in the beginning (as originally framed, the Constitution protected the slave trade until 1808 (art. I, sec. 9) and it required the return of persons who had escaped from human bondage, a provision in force until the Civil War (art. IV, sec. 2)). Instead, Thurgood Marshall celebrated how our fundamental instrument of government had evolved over the span of two centuries. The "true miracle," he said, is the Constitution's "life nurtured through two turbulent centuries." ⁿ⁶

  I share that view, but I appreciate, too, that the equal dignity of individuals is part of the U.S. constitutional legacy, shaped by the original framers, in this vital sense. The founding fathers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. Their culture held them back from fully perceiving or acting upon ideals of human equality in rights and opportunities, and of individual freedom to aspire and achieve. But they stated a commitment in the Declaration of Independence to equality and in the Declaration and Bill of Rights to individual liberty. Those commitments had growth potential.
• As historian Richard Morris wrote: a prime (and still evolving) portion of the history of the U.S. Constitution, and a cause for celebration, is the story of the extension (through amendment, judicial interpretation, and practice) of constitutional rights and protections to once ignored or excluded people: to humans who were once held in bondage, to men without property, to the  [*266]  original inhabitants of the land that became the United States, and to women. ⁿ⁷
• The Supreme Court unanimously declared Idaho's male preference statute unconstitutional, a plain denial to Sally Reed of the equal protection of the State's law. ⁿ¹² Two years later, in Frontiero v. Richardson, the Court held it unconstitutional to deny female military officers housing and medical benefits covering their husbands on the same automatic basis as those family benefits were accorded to male military  [*268]  officers for their wives. ⁿ¹³ Air Force Lieutenant Sharron Frontiero was the successful challenger, and I co-argued her case before a Supreme Court that included my current Chief Justice (his was the only dissenting vote). Lt. Frontiero had this clear view: She saw the laws in question as plain denials of equal pay. Two years after Sharron Frontiero's victory, the Court declared unconstitutional a state law allowing a parent to stop supporting a daughter once she reached the age of eighteen, but requiring parental support for a son until he turned twenty-one. ⁿ¹⁴

• What caused the Court's understanding to dawn and grow? Judges do read the newspapers and are affected, not by the weather of the day, as distinguished Constitutional Law Professor Paul Freund once said, but by the climate of the era. Supreme Court Justices, and lower court judges as well, were becoming aware of a sea change in United States society. Their enlightenment was advanced publicly by the briefs filed  [*269]  in Court and privately, I suspect, by the aspirations of the women, particularly the daughters and granddaughters, in their own families and communities.

  The altered conditions accounting for the different outcomes in Gwendolyn Hoyt's case in 1961, and in Sally Reed's, Sharron Frontiero's, and Stephen Wiesenfeld's cases in the 1970s, were these. In the years from 1961 to 1971, women's employment outside the home had expanded rapidly. That expansion was attended by a revived feminist movement, fueled in the United States, in part, by the movement of the 1960s for racial justice, but also, as elsewhere in the world, by the force of new thinking both represented and sparked by Simone de Beauvoir's remarkable 1949 publication, The Second Sex. Changing patterns of marriage, access to safer methods of controlling birth, longer life spans, even inflation - all were implicated in a social dynamic that yielded this new reality: in the 1970s, for the first time in the nation's history, the "average" woman in the United States was experiencing most of her adult years in a household not dominated by childcare requirements. That development may indeed be, as Columbia University economics professor Eli Ginzberg described it in 1977, ""the single most outstanding phenomenon'" of the late twentieth century. ⁿ¹⁷
• Cases of the kind I just described placed a spotlight on the burdensome nature of legislation that confined women to a separate sphere. By enshrining and promoting the woman's "natural" role as selfless homemaker, and correspondingly emphasizing the man's role as provider, the state impeded both men and women from pursuit of the very opportunities and styles of life that could enable them to break away from traditional patterns and develop their full, human capacities. Thus, for example, excluding qualified men from attending a nursing school tends, as the Supreme Court held in 1982, to "perpetuate the stereotyped view of nursing as an exclusively woman's job"; instead of advancing women's welfare, Justice Sandra Day O'Connor recognized, this occupational reservation may in fact have helped to hold down wages in the nursing profession
• The Supreme Court, since the 1970s, has effectively carried on in the gender discrimination cases a dialogue with the political branches of government. The Court wrote modestly, it put forth no grand philosophy. But by forcing legislative and executive branch re-examination of sex-based classifications, the Court helped to ensure that laws and regulations would "catch up with a changed world."

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• Put less provocatively: Brown exemplifies not constitutional jurisprudence, but rather constitutional statesmanship of the highest order. As such, it was an exceptional act, reserved for a question that goes to the core of our national history and identity. It should not be regarded as a template for judicial action in less extraordinary circumstances. 

   Some judges with impeccable liberal credentials endorse this approach. In her Senate confirmation hearing, Ruth Bader Ginsburg told the judiciary committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians." 
• She went on to criticize the Supreme Court's decision in Roe v. Wade on the grounds that it pre-empted normal, ongoing legislative action. Without a national ruling, she said, "the people would have expressed themselves in an enduring way on this question" through state-by-state laws. She noted that Roe had mobilized the opponents of abortion rights in a way that ordinary legislative processes did not. And in a notable lecture at New York University just months before her nomination to the court, she offered a general thesis that liberal legal activists would do well to ponder. Changes at a measured, deliberate pace, she said, "seem to be right, in the main, for constitutional as well as common-law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable."