Whatever else may be said about the Supreme Court's current term, which ends
in about a month, it will be remembered as the time when Justice Ruth Bader
Ginsburg found her voice, and used it.
Both in the abortion case the court decided last month and the discrimination
ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the
bench. In each case, she spoke not only for herself but also for three other
dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen
G. Breyer.
But the words were clearly her own, and they were both passionate and pointed.
In the abortion case, in which the court upheld the federal Partial-Birth
Abortion Ban Act seven years after having struck down a similar state law, she
noted that the court was now ''differently composed than it was when we last
considered a restrictive abortion regulation.'' In the latest case, she summoned
Congress to overturn what she called the majority's ''parsimonious reading'' of
the federal law against discrimination in the workplace.
To read a dissent aloud is an act of theater that justices use to convey their
view that the majority is not only mistaken, but profoundly wrong. It happens
just a handful of times a year. Justice Antonin Scalia has used the technique to
powerful effect, as has Justice Stevens, in a decidedly more low-key manner.
The oral dissent has not been, until now, Justice Ginsburg's style. She has gone
years without delivering one, and never before in her 15 years on the court has
she delivered two in one term. In her past dissents, both oral and written, she
has been reluctant to breach the court's collegial norms. ''What she is saying
is that this is not law, it's politics,'' Pamela S. Karlan, a Stanford law
professor, said of Justice Ginsburg's comment linking the outcome in the
abortion case to the fact of the court's changed membership. ''She is accusing
the other side of making political claims, not legal claims.''
The justice's acquaintances have watched with great interest what some depict as
a late-career transformation. ''Her style has always been very ameliorative,
very conscious of etiquette,'' said Cynthia Fuchs Epstein, the sociologist and a
longtime friend. ''She has always been regarded as sort of a white-glove person,
and she's achieved a lot that way. Now she is seeing that basic issues she's
fought so hard for are in jeopardy, and she is less bound by what have been the
conventions of the court.''
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.
Justice Alito, of course, took the place of Justice Sandra Day O'Connor, with
whom Justice Ginsburg formed a deep emotional bond, although they differed on a
variety of issues. And Chief Justice Roberts succeeded Chief Justice William H.
Rehnquist, with whom Justice Ginsburg often disagreed but maintained a
relationship that was at times surprisingly productive.
For example, in 1996, over Justice Scalia's vigorous dissent, the chief justice
gave Justice Ginsburg his vote in a decision holding that the Virginia Military
Institute's men-only admissions policy was unconstitutional. In 2003, they made
common cause in a case that strengthened the Family and Medical Leave Act. When
Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today's
adversary could be tomorrow's ally.
If there has been any such meeting of the minds between Justice Ginsburg and her
new colleagues, it has not been evident. She may have concluded that her side's
interests are better served by appealing not to the court's majority but to the
public. ''She's sounding an alarm and wants people to take notice,'' said Debra
L. Ness, president of the National Partnership for Women and Families, an
advocacy group that focuses on the workplace.
Goodwin Liu, a law professor at the University of California, Berkeley, was one
of Justice Ginsburg's law clerks when the court decided the 2000 election case,
the bitterly divided Bush v. Gore decision, from which she dissented. Even
during that freighted period, Professor Liu said, ''I was struck by how much of
an institutional citizen she was, how attuned to the wishes of her colleagues
and to not giving offense.''
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.''
Another of the justice's friends, Prof. Judith Resnik of Yale Law School, noted
that throughout her legal career, Justice Ginsburg has been deeply concerned
about questions of access to the courts and the remedial powers of federal
judges, themes she has explored in both majority and dissenting opinions.
''Those of us reading not just the grand-slam cases but the quieter ones have
heard her voice,'' Professor Resnik said. She added, ''Now that the stakes are
going up, more people will be listening.''