Ruth Bader Ginsburg, the liberal Supreme Court justice, took the unusual step of reading from the bench her dissent against the Court's recent 5-4 ruling in a case against pay disparity in the workplace. The Times' Supreme Court reporter Linda Greenhouse celebrated Ginsburg's activism in her Thursday "Supreme Court Memo," "Oral Dissents Give Ginsburg a New Voice on Court."
"Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.
"Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
"But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now 'differently composed than it was when we last considered a restrictive abortion regulation.' In the latest case, she summoned Congress to overturn what she called the majority's 'parsimonious reading' of the federal law against discrimination in the workplace....Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her."
Whatever happened to the idea of Supreme Court justices simply interpreting the Constitution, whether or not the "issues" matter to them or not politically?
Greenhouse let Ginsburg's liberal allies play up the gender card:
"Professor Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly M. Ledbetter, Justice Ginsburg was also telling a version of her own story. 'Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men,' Professor Liu said. 'It's as if after 15 years on the court, she's finally voicing some complaints of her own.'
"Another of the justice's friends, Prof. Judith Resnik of Yale Law School, noted that throughout her legal career, Justice Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions."
Ed Whelan wrote at "Bench Memos" at National Review Online that Greenhouse's article "is quite comical, though unintentionally so...Greenhouse's article centers on the fact that Ginsburg has twice this term read her dissents from the bench - first in April's partial-birth ruling, then in this past Tuesday's Title VII ruling (in Ledbetter v. Goodyear Tire ). As Greenhouse puts it, 'To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong.'
"I can imagine how a fierce partisan of abortion like Ginsburg could mistakenly regard the Court's partial-birth ruling as 'profoundly wrong.' But can the Court's Title VII ruling come anywhere close to meeting that standard?Not even the Washington Post thinks so.In its house editorial today, the Post agrees with Ginsburg's policy views.But, even without taking note of the precedents on which the majority relied, it regards the statutory question in the case as 'a difficult question' and forms no opinion on who 'had the better reading of the statute.'"