On the autumnally crisp morning of Saturday, Sept. 19 – just hours after we were gutted by the news that Justice Ruth Bader Ginsburg had lost her most recent bout with cancer – my boyfriend and I biked the short distance from my Washington condominium to the Supreme Court building.
We were there to add our own tributes to the ones that thousands of Americans had already left since the previous evening, piling flowers, cards and other mementoes on the steps of the high court’s front plaza.
They were tokens of what the Notorious R.B.G. (as newer generations had taken to calling her, alluding to the late hip-hop artist Notorious B.I.G.) had meant to us.
Near where I laid my roses and note, something caught my eye. It was a candle in a decorated glass cylinder, styled after Catholic prayer votives that often feature images of venerated saints.
However, in place of the Blessed Virgin Mary was an image of the Jewish Ginsburg, wearing her judicial robe and famous lace collar while holding her hand up in benediction. Below, one of her most famous quotations was written: “I dissent.”
The Notorious R.B.G. meant so much to us, in part, because of the fierce power with which she dissented from prevailing views that, too often, prop up the powerful at the expense of the powerless.
Justice Ginsburg rose to prominence as a true trailblazer and advocate for the rights of women, who were both legally and culturally relegated to second-class status when she started her career in the 1950s.
Nonetheless, the second woman (and first Jewish woman) ever to serve on the Supreme Court also often turned her considerable intellectual firepower against structures and laws that oppressed other minority groups.
While some of those decisions came with the court’s majority (such as 1999’s Olmstead v. L.C., in which Ginsburg wrote the majority opinion for a decision that greatly expanded the rights of Americans with mental disabilities), Justice Ginsburg’s most lasting impacts may actually have come from her powerful dissenting opinions in a host of cases.
For instance, in 2014, Justice Ginsburg famously dissented from the court’s Burwell v. Hobby Lobby decision, in which the majority said that a for-profit company had a religious freedom right to refuse to provide its employees with health insurance that covers contraception.
The justice thought the idea that for-profit businesses were entitled to deny contraception to employees of all faiths was a perversion of the very purpose of the First Amendment’s religion clauses.
“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations,” she wrote. “Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
She continued, “Would the exemption … extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations[?] … Approving some religious claims while deeming others unworthy of accommodation could be perceived as favoring one religion over another, the very risk the [Constitution’s] Establishment Clause was designed to preclude. The Court, I fear, has ventured into a minefield.”
Her eye was always keenly fixed on the unintended consequences of the Supreme Court’s decisions for disempowered minority groups.
She similarly sounded the alarm in dissenting from the Court’s 2013 decision in Shelby County v. Holder, in which the majority’s opinion essentially gutted the Voting Rights Act (VRA) of 1965.
The majority’s decision threw out a part of the VRA that requires states with a history of discriminatory practices against minority voters to “pre-clear” with the Justice Department any changes they wished to make to voting laws or procedures.
The majority – led by Chief Justice John Roberts – claimed such preclearance was no longer necessary.
Justice Ginsburg said that conclusion ignored the insidious ways in which racial discrimination mutates and remanifests itself.
“Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” she wrote. “For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.”
However, she noted, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Her eye was on the future in writing these dissents. Much as Justice John Marshall Harlan’s famous dissent to the 1896 Plessy v. Ferguson decision (which enshrined Jim Crow segregation into constitutional law) set the stage for Plessy’s undoing in the 1954 Brown v. Board of Education opinion, Justice Ginsburg knew her powerful dissenting opinions will point the way for posterity.
“Dissents speak to a future age,” she said, in a 2002 interview with National Public Radio. “It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
“I dissent” is the perfect message for a Ruth Bader Ginsburg votive candle because her dissent was her own form of prayer to the better angels of our jurisprudential and national nature.
And that is my prayer as well: That, despite the oppression that vulnerable people currently suffer at the hand of indifferent majorities, our society will soon better represent the values of a God who puts down the mighty, exalts the humble and meek, fills the hungry with good things and sends the rich away empty.
Editor’s note: The views expressed in this opinion piece are solely those of the author and do not reflect those of his employer.