A Matter of Justice

The Constitution, not unlike the Bible, draws radically different schools of interpretation. When the Supreme Court begins a session with a new member--as happened October 4 with Ruth Bader Ginsburg--the question from all quadrants is which interpretive method will she bring to the mix. How will the discernment of rights and responsibilities in our society be affected?

Judicial conservatives (such as Antonin Scalia or former Supreme Court nominee Robert Bork) claim to interpret the Constitution literally, based on the "original intention" of its framers, excluding constitutional protection for individual rights beyond those that are expressly mentioned in the document or those that have been traditional in the dominant society.

Another approach sees new rights emerging as society changes. For example, the 14th Amendment's guarantee of "equal protection of the law" is seen as a mandate that extends beyond its original intent (granting full rights to African Americans) to cover others also. So while the 14th Amendment was not intended to guarantee equal rights for women, it is seen by many as justification to do so. Critics of this approach assert that it places the court in the position of legislating, not judging; it is "judicial activism," not so-called "neutral" discernment.

Ginsburg's career and personal ideology have embraced a more expansive view of constitutional rights. She was a volunteer attorney for the American Civil Liberties Union Women's Rights Project in the 1970s, litigating several cases before the Supreme Court that succeeded in challenging many gender-based laws.

Ginsburg testified during her confirmation hearings that extending the equal protection clause of the 14th Amendment to women "took bold and dynamic interpretation" from its framers' intent. She remains an advocate of an equal rights amendment to fully confirm "that men and women are equal before the law, just as every modern human rights document in the world does since 1970."

However, Ginsburg's endorsement of incremental change in judicial standards, her voting record during her 13-year career as a U.S. Appeals Court judge (during their shared tenure she voted with Clarence Thomas 91 percent of the time), and her preference for consensus decisions make it difficult to characterize her convincingly as a judicial activist. As Linda Greenhouse wrote in The New York Times, Ginsburg is "a rare creature in the modern judicial lexicon: a judicial-restraint liberal."

Ginsburg's restraint seems to be a matter of pragmatism about the best way to bring about change (as opposed to reflecting a conservative judicial philosophy). Still, it will most likely place her firmly in a centrist position in the court. While historically predictions about how a new justice will act once on the bench often have been way off the mark, it appears unlikely that Ginsburg will be an unfailingly progressive force on the court.

WHAT SHOULD NOT be discounted are other effects of her appointment--subtler, but perhaps more radical in the long term.

When Associate Justice Ruth Bader Ginsburg took her seat on the court, she was not, of course, the first woman to do so--joining Sandra Day O'Connor, a justice since 1981. But Ginsburg may represent an accomplishment that's even sweeter. In a world where women are both moving forward and facing the same old obstacles, the second woman to reach as public and meaningful an achievement as this brings us one step closer to seeing such things as the norm, not the exception.

The simple fact of a woman present and visible in such a role has the power to sharply remind us as a country of rights our forefathers didn't allow, rights that feminists such as Susan B. Anthony, Elizabeth Cady Stanton, and Lucretia Mott worked unsuccessfully to have included in the 14th Amendment. The full citizenship of women, with equal protection under the law, has still only been recognized by increments--and not completely secured as it would be under an equal rights amendment.

Ginsburg's work against discrimination and her appointment to the Supreme Court stand in ironic contrast to events in her own life. For example, even though she graduated at the top of her Columbia Law School class in 1959, Ginsburg was denied a clerkship at the Supreme Court and could not get hired by any New York law firm--because she was a woman.

Robert Bork recently signed off on a fund-raising letter for the conservative Free Congress Foundation (a goal of which is "to organize national opposition to federal court appointees whose activist judicial philosophy runs counter to the intent of the founding fathers"). Toward the end of the letter, he warns, "I urge you to remember just how vital a role the federal judiciary plays in our national life. And then think about the type of federal judicial appointments we can expect from President Clinton."

We will have reason to have hope for our society if there are more appointees like Ginsburg: scholars of the Constitution who treat it with careful respect while not ignoring the text of their own life and that of our changing society.

Julie Polter is a senior associate editor of Sojourners.