This was the basis for her criticism of Roe v. Wade, the Supreme Court’s 1973 decision establishing a constitutional right to abortion. In a speech at New York University Law School in 1993, several months before her nomination to the Supreme Court, she criticized the ruling as having “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”
While leaving no doubt about her own support for abortion rights, she said the court would have done better to issue a narrow rather than sweeping ruling, one that left states with some ability to regulate abortions without prohibiting them. “The framers of the Constitution allowed to rest in the court’s hands large authority to rule on the Constitution’s meaning” but “armed the court with no swords to carry out its pronouncements,” she said, adding that the court had to be wary of “taking giant strides and thereby risking a backlash too forceful to contain.”
In contrast to Judge Ginsburg’s underlying assumption, there was in fact ample evidence that what had once appeared a steady legislative march toward revision or repeal of the old criminal abortion laws had stalled by 1973 in the face of powerful lobbying by the Roman Catholic Church. And there was also evidence that the backlash against the decision was not a spontaneous response — in fact, polling in the decision’s immediate aftermath demonstrated widespread and growing public approval — but rather was elicited by Republican strategists hunting for Catholic voters, who had traditionally been Democrats. In later years, Justice Ginsburg acknowledged questions about the historical accuracy of her narrative, but she maintained her criticism of the decision.
The New York University speech alarmed the leaders of some women’s groups and abortion rights organizations, some of whom lobbied quietly against her when Justice White announced in March 1993 that he would soon be leaving the court. Mr. Clinton, making his first nomination to the court, conducted an almost painfully public search among judges and political figures, with contenders including Mario Cuomo, then the governor of New York, who turned him down, and Bruce Babbitt, the incumbent secretary of the interior.
As the search wound down, it appeared the president had chosen Stephen G. Breyer, chief judge of the United States Court of Appeals for the First Circuit in Boston, who had come to Washington at the president’s invitation for an interview. Judge Breyer was in pain from broken ribs suffered in a recent bicycle accident, and the interview did not go well. Martin Ginsburg, meanwhile, had been urging New York’s senior senator, Daniel Patrick Moynihan, to press his wife’s case with the president. Mr. Clinton was at first reluctant, grumbling to Mr. Moynihan that “the women are against her.” But after a 90-minute private meeting with Judge Ginsburg on Sunday, June 13, the president made up his mind.
He called her at 11:33 that night to tell her that she was his choice.
“I believe that in the years ahead she will be able to be a force for consensus-building on the Supreme Court, just as she has been on the Court of Appeals,” Mr. Clinton said at the announcement ceremony the next day. The appointment proved highly popular with the public, and she was confirmed on Aug. 3, 1993, over the dissenting votes of three of the Senate’s most conservative Republicans: Jesse Helms of North Carolina, Don Nickles of Oklahoma and Robert C. Smith of New Hampshire.
Addressing the Senate Judiciary Committee, Judge Ginsburg said her approach to judging was “neither ‘liberal’ nor ‘conservative.’” She did, however, make clear that her support for the right to abortion, despite her criticism of Roe v. Wade, was unequivocal.
In answer to a question from Senator Hank Brown, a Colorado Republican, she said: “This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
Fourteen years later, on a Supreme Court that had turned notably more conservative with the departures of Justices Marshall and O’Connor and their replacement by Justices Clarence Thomas and Samuel A. Alito Jr., Justice Ginsburg expressed herself on the subject of abortion in one of her most stinging and widely noticed dissenting opinions. In Gonzales v. Carhart, the court by a 5-to-4 vote
upheld a federal law criminalizing a particular procedure that doctors used infrequently to terminate pregnancies during the second trimester. In his majority opinion, Justice Kennedy said the law was justified in part to protect women from the regret they might feel after undergoing the procedure. That rationale, Justice Ginsburg objected in dissent, relied on “an anti-abortion shibboleth” — the notion that women regret their abortions — for which the court “concededly has no reliable evidence.” The majority’s “way of thinking,” she wrote, “reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”
It was during that 2006-7 Supreme Court term that Justice Ginsburg’s powerful dissenting voice emerged. Another decision that term provoked another strong dissent. The court voted 5 to 4 in the case of Ledbetter v. Goodyear Tire and Rubber Company to reject a woman’s pay discrimination claim on the grounds that the woman, Lilly Ledbetter, had not filed her complaint within the statutory 180-day deadline. Justice Alito’s majority opinion held that the 180-day clock had started running with Ms. Ledbetter’s first paycheck reflecting the management’s decision to pay her less than it paid the men doing the same job.
Justice Ginsburg objected that, properly interpreted, the 180-period began only when an employee actually learned about the discrimination. Congress should make this clear, she wrote, declaring: “The ball is in Congress’s court.” The impact of her unusually direct call to Congress was magnified because she took the unusual step of announcing her dissent from the bench. What might have been seen as a technical dispute over a statute of limitations became a very public call to arms.
It worked. Congress voted to overturn what Justice Ginsburg called the court’s “parsimonious reading” of Title VII of the Civil Rights Act of 1964. On Jan. 29, 2009, the Lilly Ledbetter Fair Pay Act was the first bill that Mr. Obama
signed into law. “Justice Ginsburg was courting the people,” Prof. Lani Guinier of Harvard Law School wrote in a 2013 essay. Professor Guinier called the oral dissent “a democratizing form of judicial speech” that “could be easily understood by those outside the courtroom.” Donning the ‘Dissenting Collar’
Justice Ginsburg took care with her opinions, those for the majority as well as those in dissent. Her opinions were tightly composed, with straightforward declarative sentences and a minimum of jargon. She sometimes said she was inspired to pay attention to writing by studying literature under Vladimir Nabokov at Cornell.
Still, it was her dissents, particularly those she announced from the bench, that received the most attention. Playing along with her crowd, she took to switching the decorative collars she wore with her judicial robe on days when she would be announcing a dissent. She even wore her “dissenting collar,” which one observer described as “resembling a piece of medieval armor,” the day after Mr. Trump’s election.
One of her best-known dissents came in 2013 in Shelby County v. Holder, in which the 5-to-4 majority
eviscerated the Voting Rights Act of 1965 by invalidating the provision that required Southern jurisdictions, along with some others, to receive federal permission — “preclearance” — before making a change in voting procedures.
“What has become of the court’s usual restraint?” Justice Ginsburg demanded in an ironic reference to conservative calls for “judicial restraint.” And she ended her announcement with these words: “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”
Credit…J. Scott Applewhite/Associated Press
Among Justice Ginsburg’s roughly 200 majority opinions — seven or eight per term — one of her favorites came in a relatively obscure decision in 1996 called
M.L.B. v. S.L.J. The question was whether a parent whose parental rights had been terminated by a court decree had a right to appeal even if unable to pay the cost of having the official court record prepared. The Supreme Court of Mississippi had ruled that the state had no obligation to pay for the required record, without which the appeal could not proceed.
Constitutional doctrine offered no clear path to ruling for the mother, M.L.B. With few exceptions, most notably the right to a lawyer for an indigent criminal defendant, the Constitution does not grant affirmative rights, and Supreme Court precedent rejects the notion that poverty is a condition deserving of special judicial consideration as a matter of equal protection. So Justice Ginsburg anchored her 6-to-3 decision in a separate line of cases in which the court had treated protection for family relationships as fundamental.
“The state may not bolt the door to equal justice” when it came to parental rights, she wrote in an opinion that delicately threaded the needle between unfavorable Supreme Court precedents and those from which favorable legal authority could be extrapolated. “In this context,” Prof. Martha Minow, a dean of Harvard Law School, wrote in an admiring essay on the opinion, “Justice Ginsburg’s opinion for the court in M.L.B. v. S.L.J. is truly extraordinary.”
A decision in 2017 addressed the differential treatment imposed by federal immigration law on unwed mothers and unwed fathers who seek to transmit their American citizenship to their children born overseas. Under the law, the mother could transmit her American citizenship as long as she had lived in the United States for at least one year. For fathers, the requirement was five years. The assumption built into the law was that while the mother’s identity was obvious, it was less so for fathers, who were less likely to assume the responsibility of parenthood on behalf of their out-of-wedlock offspring.
Writing for a 6-to-2 majority in
Sessions v. Morales-Santana, Justice Ginsburg found the law to violate the constitutional guarantee of equal protection. The sex-based distinction, she wrote, was “stunningly anachronistic,” reflecting “an era when the law books of our nation were rife with overbroad generalizations about the way men and women are.” Invoking language she had used for many decades, first as an advocate and now as a justice, she continued, “Overbroad generalizations of that order, the court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives.”
No Fear on the Bench
Asked often to explain the success of her 1970s litigation campaign, Justice Ginsburg usually offered some version of having been in the right place with the right arguments at the right time.
“How fortunate I was to be alive and a lawyer,” she wrote in the preface to “My Own Words,” a compilation of her writing published in 2016, “when, for the first time in U.S. history, it became possible to urge, successfully, before legislatures and courts, the equal-citizenship stature of women and men as a fundamental constitutional principle.”
Still, she could not fully deny that she had played more than a walk-on role. “What caused the court’s understanding to dawn and grow?” she asked in an article published in the Hofstra Law Review in 1997. “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 in court and privately, I suspect, by the aspirations of the women, particularly the daughters and granddaughters, in their own families and communities.”
Justice Ginsburg was as precise in her appearance as in her approach to her work. She wore her dark hair pulled back and favored finely tailored suits by the designer Giorgio Armani, interspersed occasionally with flamboyantly patterned jackets acquired on distant travels. She appeared on several lists of best-dressed women.
Credit…Hilary Swift for The New York Times
Although on the bench she was an active and persistent questioner, in social settings she tended to say little. She often let her more outgoing and jovial husband speak for her, and she struck those who did not know her well as shy and even withdrawn — although in talking about her great love, opera, she could become almost lyrical. Still, there was so little wasted motion that it was nearly impossible to imagine her as the high school cheerleader and twirler she had once been.
It was not so much that there were two sides to her personality, as it might have appeared, as that her innate shyness simply disappeared when she had a job to do. She once recalled that before her first Supreme Court argument, she was so nervous that she did not eat lunch “for fear I might throw up.”
But about two minutes into the argument, “the fear dissolved,” she said. She realized that she had a “captive audience” of the most powerful judges in America, and “I felt a surge of power that carried me through.”
Adam Liptak contributed reporting.