#jointhedissent: Ruth Bader Ginsburg and the Hobby Lobby effect.

• Author: Eversley, Lauren R.
• Position: NOTES

"I don't see that my majority opinions are going to be undone I do hope that some of my dissents will one day be the law." (1)

1. INTRODUCTION

   It is just after ten o'clock in the morning on June 30, 2014, and the unofficial Supreme Court of the United States Blog (SCOTUSblog) has logged over forty thousand readers on the website's interactive live blog of Supreme Court decisions. (2) It is the last day of the Court's June Term, (3) and readers and commentators alike are awaiting the opinion on the final and perhaps most controversial and anticipated decision left on the Court's docket: Burwell u. Hobby Lobby Stores, Inc. (4) The decision, that closely-held corporations cannot be required to provide contraception coverage to their employees, (5) was finally handed down at 10:17 a.m., and just eight minutes later, as the blog commentators summarized the key elements of the opinion, the SCOTUSblog website views skyrocketed to over sixty thousand. (6) The decision, described by the commentators as a "monster" of an opinion, included a forty-nine page majority opinion by Justice Samuel Alito, and a colossal thirty-five page dissent by Justice Ruth Bader Ginsburg. (7) The announcement of Ginsburg's dissent was then followed by what is still seemingly rare in Supreme Court jurisprudence: her oral dissent from the bench. (8) Within minutes Justice Ginsburg became an internet icon for women's autonomy; (9) her dissenting opinion becoming the "symbolic battle cr[y] in a larger culture war over contraception, women's bodies, and sexual freedom, rather than a carefully crafted argument in an intensely complicated legal case." (10)

   The Court's October 2013 Term saw unprecedented unanimity, with sixty-five percent of the orally argued cases resulting in a unanimous decision, a record high since 1953. (11) However, this current makeup of the Court sits decisively divided along party lines, and even in unanimously decided cases, the "familiar lines of division" can be seen. (12) No different is the Hobby Lobby opinion; Ginsburg was joined in her dissent, at least in part, by the notoriously liberal wing of the Court--Justices Breyer, Sotomayor and Kagan. (13) Similarly, Justice Ginsburg's position did not surprise legal scholars. Since her appointment to the Court in 1993, Justice Ginsburg's jurisprudence has been grounded in the assurance of opportunity and equality, with a focus specifically on gender equality and women's rights. (14)

   This note will consider three interwoven themes: the jurisprudence of Justice Ruth Bader Ginsburg, the role of the dissenting opinion, and the role of women's autonomy in their own bodies as seen through the lens of two specific Supreme Court opinions. Viewed in the lens of Justice Ginsburg's jurisprudence, her dissenting opinions--most specifically Gonzales v. Carhart (15) and the abovementioned Burwell v. Hobby Lobby Stores, Inc.--act as a vehicle in which the Justice's beliefs and principles in regard to both women's autonomy and equality are furthered. Though resting upon many of the same foundational principles as Gonzales, the Hobby Lobby decision came during the "perfect storm"--a time in which feminist ideals were thrust to the forefront of American ideology--thereby enabling the dissenting opinion, and Ginsburg's beliefs as a whole, to have a greater impact on the majority opinions of the future. Part II will discuss Justice Ginsburg's jurisprudence that has developed in her twenty-one years on the Supreme Court. It will first provide a brief overview of the road Justice Ginsburg paved on her way to the Supreme Court, and explore the reputation she has made for herself thus far on the bench. Particular attention will be paid to the events and milestones in Ginsburg's life that prefaced her appointment to the Supreme Court and shaped the realm of her jurisprudence. This part will also discuss Justice Ginsburg's own words on the power of the dissenting opinion, as well as explore her statistics in both dissenting opinions, and reading those opinions from the bench. Part III will discuss Justice Ginsburg's dissenting opinion in Gonzales v. Carhart, offering a brief background of the case before delving into the language and sentiment of the dissent. It will touch upon Ginsburg's reading of the dissent from the bench, the effect that had on the public at large, and how the public and legal community alike responded to the oral dissent. It will also consider the Gonzales dissent within the realm of Justice Ginsburg's philosophy. Part IV will address Justice Ginsburg's most recent dissent in the area of women's equality and autonomy, Burwell u. Hobby Lobby Stores, Inc. It will provide a brief resuscitation of the facts and backdrop of the case, before discussing the biting language Justice Ginsburg uses in her dissent. This part will also offer a discussion on the 'Hobby Lobby effect" and how it differs from the aftermath of the Gonzales decision. Part V will discuss the potential outlook for the future, and how the Hobby Lobby dissent can impact this area moving forward. Through this discussion, it will become evident that Justice Ginsburg's dissenting opinions in the area of reproductive rights, as well as a female's rights to autonomy over her own body, provide more of an impact in the area of women's equality than her majority opinions. The impact of Ginsburg's dissenting opinions in this specific area, together with her inclination to read these dissenting opinions from the bench, proves that she is attempting to use her minority opinion as a tool to educate and appeal to the students of the future, in the hope that someday, her dissenting opinions will become the majority.

2. RUTH BADER GINSBURG'S JURISPRUDENCE

   1. Ginsburg's Background

      Justice Ginsburg's focus on women's equality began long before that of her legal career. Despite acceptance into law school after her graduation from Cornell University, a twenty-one-year-old Ginsburg followed her husband to Oklahoma, where he had recently been transferred due to the draft. (16) It was here that Ginsburg first experienced gender inequality when, after revealing that she was pregnant to her superiors at her job at the local Society Security office, she was deemed ineligible for a promotion she was otherwise qualified for, and instead received a demotion with considerably less pay. (17)

      She fared little better after returning home to Boston with her husband after his military service. Although she had been accepted into Harvard Law School, Ginsburg, and the handful of other women who had been accepted in the mid-1950s, faced constant criticism at the hands of their professors. (18) Women were, more often than not, called upon during class lectures solely to provide comic relief, and even questioned on how they felt taking spots in the class away from men. (19) By the end of her legal education, however, Ginsburg was regarded as an academic scholar--attending two highly ranked law schools, graduating from Columbia Law School as a Kent Scholar (where she was tied for first in her class), as well as the first woman to obtain membership on two law reviews. (20)

      The most defining moment in Ginsburg's legal career came in her quest for employment post-graduation. (21) Ginsburg was not offered a position at any of the top law firms in New York City, despite the exceptional abovementioned academic credentials. (22) In 1960, on recommendation from a Dean at Harvard Law School, Ginsburg was passed upon as a law clerk by then Supreme Court Justice Felix Frankfurter, who told the professor, "while the candidate was impressive, he just wasn't ready to hire a woman." (23) Ginsburg was also turned down for a position with Learned Hand, then judge on the United States Court of Appeals for the Second Circuit, before finally being hired by Edmund L. Palmieri, judge on the United States District Court for the Southern District of New York. (24) Ginsburg continued on into a myriad of legal endeavors in the beginning of her legal career, all the while keeping her budding feminism (25) at the center of her being. Ginsburg became a professor at Rutgers University Law School, where she was heavily affiliated with the New Jersey chapter of the American Civil Liberties Union (ACLU), where she fought for women's right to maternity leave for schoolteachers in New Jersey. (26) She became the first tenured women hired at Columbia Law School in 1972, and that same year, was selected as the first director of the ACLU's Women's Rights Project. (27)

      Earning the nickname the "Thurgood Marshall of gender equality law," Ginsburg argued six women's rights cases before the Supreme Court within a three-year span, winning all but one, and leaving a lasting impact on women in the eyes of the law. (28) Her successes eventually led to her nomination by President Carter to the United States Court of Appeals in the D.C. Circuit in 1980, where she served from 1981 until 1993. (29) When Justice Byron White announced his retirement from the Supreme Court, then President Bill Clinton nominated Ginsburg to fill the position, praising her "pioneering work in [sic] behalf of the women of this country." (30)

   2. Guiding Principles of Ginsburg's Judicial Philosophy

      It is from this backdrop that Justice Ginsburg refined the jurisprudence that would follow her judicial path. Throughout her career as an appellate advocate, Justice Ginsburg "developed a strategy of chipping away precedent, establishing new principles step-by-step." (31) This approach has appeared both in her judging and in her judicial principles, and while she has been categorized more on the liberal side of the bench throughout her judicial career, Ginsburg has "tempered these beliefs ... by her emphasis on procedure and precedent and by her commitment to the doctrine of judicial restraint." (32) Linda Greenhouse, the Pulitzer Prize winning New York Times reporter who has covered the Supreme Court for the past three...