By Gail Prudenti
BridgeTower Media Newswires
I have always felt a special kinship with Justice Ruth Bader Ginsburg, an affinity that grew even stronger when, in my current role as Dean of Hofstra Law, I was honored to spend a little time with her and experience personally her warmth, sincerity, humility and intellect.
I share in the loss of this incredible human being, a true beacon for women’s rights and the very embodiment of the phrase “grace under pressure.” She was a guiding light, a living legal legend, inspiration to so many (especially women lawyers) and will be an icon of inspiration in the American legal system forever.
But far more important to me than any personal or political convictions she held was her commitment to the rule of law, her judicious adherence to principle over passion and her reluctance to turn the U.S. Supreme Court into an uber legislature where both the right and left turn when they don’t get their way with the democratic branches of government, the Executive and Legislative branches.
Consider Roe v. Wade, the decision recognizing a constitutionally protected right to abortion.
I am quite certain Justice Ginsburg fully supported the result in that landmark decision. However, she remained troubled by the process, and pondered whether the Supreme Court prematurely intruded into a debate that, perhaps, should have first run its course through the other branches. She generally believed that political questions ought to be decided by the political branches, at least in the first instance.
“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said in 2013. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”
That position, understandably, gave feminists cause for concern. Yet, Roe v. Wade was decided by the Court, abortion rights were enshrined in constitutional law and Justice Ginsburg relied on that precedent – even if it gave her pause – because that’s what great judges do.
Her majority opinions were clear and insightful, her dissents brilliant and compelling. She often protected individuals from the power of government and business. RBG seemed to have fun as a judge, and a certain playfulness occasionally graced her judicial writings. Example: In 2013, in Shelby County v. Holder, which diminished the Voting Rights Act of 1965, she accused the majority of missing the boat: “It is like throwing away your umbrella in a rainstorm because you are not getting wet.”
One of my favorite RBG quotes comes from an interview in 2014 with The Wall Street Journal: “The genius of this Constitution is that, over the course of now more than two centuries, ‘We the people’ has become more and more inclusive. So it includes people whose ancestors were held in human bondage. It includes Native Americans, who were not part of ‘We the people,’” when the Constitution was ratified. Amen!
As a final observation, Justice Ginsburg was in many ways the polar opposite of Justice Antonin Scalia. He was a man, she was a woman. She was a Democrat, he was a Republican. She was a liberal, he was a conservative. They frequently ended up on opposite sides of a case, and one or the other responding with a sharp dissent.
Yet they found common ground in their shared love of opera, as well as the Sixth Amendment right to confront one’s accusers, and the power of a jury to punish wrongdoers with punitive damages. Against all odds, they became the best of friends because they practiced what many preach but fewer practice, tolerance and respect.
In these particularly divisive times, when it seems half of America is at war with the other half, there’s a lesson to be learned from these two very different judges.
If Justice Ginsburg and Justice Scalia could not only tolerate but enjoy and appreciate each other, if they could avoid what Michelle Obama, in her biography, Becoming, described as “tribal segregation,” maybe the best way for those on the left and the right to honor their judicial heroes is to live by their example and remember that, at the end of the day, we are all Americans who cherish the Constitution and the rule of law.
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Judge Gail Prudenti is the Dean of the Maurice A. Deane School of Law at Hofstra University.
