Paul L. Caron
Dean



Wednesday, September 23, 2020

Schizer: The Conservative Legacy Of RBG

David M. Schizer (Former Dean, Columbia), The Conservative Legacy of Ruth Bader Ginsburg:

RBGWith the passing of Ruth Bader Ginsburg, we have lost one of our nation's greatest legal minds. While she obviously was much beloved on the political left, we should not forget key aspects of her legacy that also resonated powerfully on the other side of the aisle, including her commitment to meritocracy, family, incremental change and the rule of law. I speak from personal experience, as a conservative who served as her law clerk during the October 1994 term—her second year on the Supreme Court—and stayed in close touch with her ever since.

RBG's friendship with Justice Antonin Scalia, one of the court's great conservative thinkers (who passed away in 2016), was perplexing to some commentators but made perfect sense to both justices. In part, their friendship sprang from the admiration each felt for the other's considerable talents, as well as from their shared love of opera. But their friendship was grounded also in common values. ...

[I]f you had asked me who exemplified the value of meritocracy—of letting people compete and show what they can do—RBG ... would have been my pick. As a champion for women's rights, she showed that everyone deserved to be judged on their merits. The Declaration of Independence promised us all the right to "the pursuit of happiness"—to develop our talents and pursue our dreams. RBG urged the nation to honor this commitment to women, as well as to men. Success should be based on ability, not biology.

RBG knew firsthand the frustration of not being judged on merit. Even though she was at the top of her law school class, no one would hire her after graduation in 1959. She would joke that as a woman, a mother and a Jew, she was a triple threat.

In a conversation just over a decade ago, she repeated to me (with a wry smile) the explanation one law firm gave for not extending an offer. "We already have a woman," they told her. RBG's late husband, Marty Ginsburg, who was himself a leading tax lawyer, chimed in. "You owe them a lot, Ruth," he quipped. "If not for them, you would now be a partner at a law firm."

Along with the virtues of meritocracy and competition, RBG believed in family, a commitment also shared by conservative thinkers. Her devotion to her own family was obvious. ...

I do not mean to minimize her differences with conservatives—whether in interpretive philosophy or in her votes in some high-profile cases. But RBG herself felt that these differences were overemphasized, something she found frustrating. In countless speeches at law schools and bar associations, she observed that very few Supreme Court cases were decided by a vote of five to four, while a great many were unanimous.

https://taxprof.typepad.com/taxprof_blog/2020/09/schizer-the-conservative-legacy-of-rbg.html

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Comments

RBG was a mainstream liberal feminist with many accomplishments. The attempt to render her as some kind of symbol of freedom has nothing to do with the real person. It’s just politics.

Posted by: Mike Livingston | Sep 24, 2020 3:23:02 AM

I noticed her former law clerks standing guard at the Supreme Court building... it was a sea of white.

Why did RBG only ever hire one black clerk? Did she have a bad experience with the first one? If so that is very unfortunate.

Posted by: Anon | Sep 24, 2020 7:15:06 PM

My reading of RGB opinions over the decades is that she was neither conservative nor liberal. But she was always on the side of fairness. She never put her thumb on the scale to favor the powerful as we have seen many so-called conservative justices like Scalia do again and again.

Cheat a worker, as in the Lucy Ledbetter case, and Ginsburg would focus on her employer seeking refuge in its own misconduct in a hyper-technical (and I would say wrongful) reading of the relevant statute. (Congress agreed with her, passing the Lucy Ledbetter Act so abusive employers could not profit from their own misconduct.)

Abuse of state power, such as imposing ruinous fines also drew rebuke from Ginsburg as an affront to the 8th Amendment.

Shut down your factory and leave a toxic mess behind to ruin the lives of others and Ginsburg will opine that you need to assume responsibility for your actions.

She also opposed giving religious rights to corporations, which the majority did in Hobby Lobby, an issue my fellow journalists completely missed before I wrote about it for Newsweek in 2013 My reading of RGB opinions over the decades is that she was neither conservative nor liberal. But she was always on the side of fairness. She never put her thumb on the scale to favor the powerful as we have seen many so-called conservative justices like Scalia do again and again.

Cheat a worker, as in the Lucy Ledbetter case, and Ginsburg would focus on her employer seeking refuge in its own misconduct (her position being later validated by a new law) in a hyper-technical (and I would say wrongful) reading of the relevant statute. (Congress agreed with her, passing the Lucy Ledbetter Act so abusive employers could not profit from their own misconduct.)

Abuse of state power, such as imposing ruinous fines also drew rebuke from Ginsburg as an affront to the 8th Amendment.

Shut down your factory and leave a toxic mess behind to ruin the lives of others and Ginsburg will opine that you need to assume responsibility for your actions.

She also opposed giving religious rights to corporations, which the majority did in Hobby Lobby, an issue my fellow journalists completely missed before I wrote about it for Newsweek in 2013 https://www.newsweek.com/do-corporations-have-soul-207504 and after the ruling came down in 2014 for Al Jazeera America http://america.aljazeera.com/opinions/2014/3/hobby-lobby-firstamendmentreligiousrightsobamacare.html.

Ginsburg presciently predicted that elevating the religious rights of some over those of others would needlessly open a pandora’s box.

Of course, if you believe in corporatism and that human rights are inferior to those of artificial persons, as clearly many Americans do these days, then Ginsburg would reasonably be viewed as a radical leftist rather than a justice who put human rights and equality under law front and center in her jurisprudence.

Posted by: David Cay Johnston | Sep 25, 2020 5:16:55 AM

It is a sad commentary of our time that any mainstream media that discusses RBS's legacy needs to mention Colin Kaepernick, as if this was some prominent feature of her career.

Posted by: JM | Sep 25, 2020 5:54:36 AM

David Cay Johnston said "She never put her thumb on the scale to favor the powerful as we have seen many so-called conservative justices like Scalia do again and again."

However, according to a 2015 study tracking "business favorability" on the high court found that even liberal justices voted in favor of businesses more often in the Roberts Court than in the previous chief justice eras. Ginsburg voted in favor of businesses 47% of the time after 2005, compared to 38% during the Rehnquist era, which is still well above past liberal justices such as Earl Warren (25%) and Abe Fortas (19%).

Posted by: MM Classic | Sep 26, 2020 11:22:00 PM