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Thursday, May 31, 2007

Ruth Bader Ginsburg: the lone woman

Linda Greenhouse has an excellent article posted just now on Ruth Bader Ginsburg and the Supreme Court. It's called Oral Dissents Give Justice a New Voice.

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.”

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The case Professor Liu is referring to, of course, is Ledbetter v Goodyear Tire and Rubber Co., ably analyzed at that link by Dailykos's Adam B.

I'd like to start a discussion here of a broader point, using the influence of the Greenhouse piece and Adam's analysis...but also by hearkening back to three pieces I wrote at the time of Samuel Alito's and John Robert's nominations to the Supreme Court as well:

* the lone woman
* one simple sentence about Alito
* 12 Common Sense Reasons to Oppose Samuel Alito

Every last rank and file Democrat has a choice to make looking forward. And that choice has to be based on a realization. We need to realize that those in our party who said it did not not much matter that John Roberts and Samuel Alito were conservative, white males, members of the Federalist society, Roman Catholics, pro-business jurists, Bush back-of-the-envelope picks, were dead wrong.

Gonzales v. Carhart and Ledbetter v. Goodyear Tire and Rubber Co. are brutal, inflexible and meanspirited decisions that are not simply marked by the rude stamp of "conservative" jurisprudence, they are distinctly, overwhelmingly unwise in their implications in a way that can only be called male:

The longer-term implications of the Supreme Court's decision to uphold the ban are extremely ominous. The ruling opens the door for states to enact—or reenact—restrictive abortion laws without health exceptions, with an understanding that the courts likely will uphold them.

And Kennedy's paternalistic and moralistic statement of the "reality" that "respect for human life finds an ultimate expression in the bond of love the mother has for her child," coupled with his "unexceptionable" conclusion (notwithstanding "no reliable data to measure the phenomenon") that "some women come to regret their choice to abort the infant life they once created and sustained," appear to invite states to require women seeking an abortion to be provided with "informed consent" information designed to persuade them to continue the pregnancy.

It's the little details, the little inflexibilities that are telling. Per Ledbetter, women who are victims of workplace pay discrimination must somehow know enough to sue within 180 days to have standing...a provision so nonsensical as to make our law meaningless. Per the Gonzales v Carhart ruling on Hypothetical Harm, the only women who might have standing in future abortion cases will have to be pregnant at the time of the lawsuit (Read that entire National Catholic Register article for an understanding of exactly what Gonzales v Carhart has come to mean to some of its ideological supporters):

4. The court stops use of hypothetical harm to block entire abortion laws.

The Supreme Court has always permitted individual abortion businesses and industry groups to challenge entire abortion regulations “on their face” on behalf of their patients.[...] Outside the abortion context, preliminary injunctions against laws are usually granted only when challengers establish that “no set of circumstances exists under which the [law] would be valid” — a very high hurdle. When it comes to abortion cases, however, such rules were thrown out in favor of those benefiting abortion doctors. Challengers have successfully blocked laws for years, merely by presenting a court with the hypothetical and sometimes far-fetched circumstances of a fictional plaintiff.

Carhart II states that where medical uncertainty exists, facial challenges should not be entertained. A facial challenge is a manner of challenging a statute in court, in which the plaintiff alleges that the statute is always, and under all circumstances, unconstitutional, and therefore void. Instead, a doctor should sue only to prevent the law’s application to actual women whose health he can prove would be compromised by the law.

eg., Doctors challenging abortion laws will only be able to do so on behalf of women who are pregnant. Think about that for one second. That decision could only be the work of five men.

It is no wonder that Greenhouse writes that Ruth Bader Ginsburg, the lone woman on the Court, has now chosen to abandon her previous respect for decorum and quiet diplomacy and speak up forcefully and out loud...to raise her voice. The above rulings are not simply examples of a lack of wisdom, they represent a kind of inhuman lack of respect for the way things work in the real world.

Bush and the GOP packed this court with conservative men and these conservative men are producing decisions so out of step with common sense, common decency and equal respect for women that it's time people heard about this and got angry.

Dry powder Democrats need to hear us on this. Gang of 14 Democrats need to hear us on this. Last-minute, ineffective, "know-we-are-gonna lose" Democrats need to hear us on this. NARAL and Planned Parenthood need to hear us on this. The leaders of the progressive and netroots movements need to hear us on this.

The guys Bush put on the Supreme Court are exactly as bad as everyone said they were going to be in exactly the creepy, sneaky, down and dirty ways many of us suspected all along. They don't even listen to Ginsburg.

Greenhouse spells it out:

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.

Linda Greenhouse knows her material. These guys have frozen Ginsburg out.

I have one simple question for the netroots, one simple question for Democrats, one simple question for anyone who cares about whether this country ends up runs by guys like John Roberts and Samuel Alito, and that question is this:

Are you going to let Justice Ruth Bader Ginsburg, the lone woman on the United States Supreme Court stand alone?

Or are you going to, in your anger, in your informed opposition, in your careful research and able persuasion, in your bedrock commitment to wisdom, common sense, equal rights and justice add your voice to hers and spread the word to our fellow Americans, men and women alike, that this Supreme Court must change with our next President?

It is not so much that Ruth Bader Ginsburg is the lone woman on the Supreme Court, as much as the fact that the Roberts Court has proved itself to be so willfully and appallingly and predictably conservative and male.

A Republican Congress and a Republican President created this mess, but many in our current Democratic Congress told those of us who were right all along about Roberts and Alito to bide our time.

No more. No more. Nope. We must be absolutely clear. We're standing with Ruth Bader Ginsburg tonight and every night till we see our project through.

Justice Ginsburg may be the lone woman, but she must not stand alone.

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