Ginsburg: Male justices don't get it

Hobby Lobby takes control from women

Nicole Flatow
Think Progress / News Investigation
Published: Friday 1 August 2014
nationofchange.org
 

Many of U.S. dissents have become the law of the land. But will Ruth Bader Ginsburg’s 35-page dissent in the Burwell v. Hobby Lobby case do the same?
 

When the U.S. Supreme Court ruled that businesses get to decide whether their female employees should have access to contraception, five conservative men disagreed with three women and Justice Stephen G. Breyer. This gender split could have been incidental, since the three women on the court were appointed by Democratic presidents. But it also signifies a deeper misunderstanding about the experience of women, U.S. Supreme Court Justice Ruth Bader Ginsburg told Yahoo News’ Katie Couric in an interview this week.

“Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied. “But the justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

“Contraceptive protection is something every woman must have access to, to control her own destiny,” Ginsburg told Couric. The decision allowing an employer to refuse to cover those contraceptives “meant that women would have lost control of that for themselves.”

She analogized the “blind spot” the justices had in this case to that in the 2007 ruling against plaintiff Lilly Ledbetter, a woman whose fair pay lawsuit was rejected by the court. She has framed on her wall the Lilly Ledbetter Fair Pay Act, passed by Congress two years later to correct the Supreme Court ruling in which she dissented.

It was the first piece of legislation signed by President Barack Obama. Ginsburg said the passage of the law is one of her proudest achievements, because in her dissent to that case, “I said the ball is now in Congress’ court to correct the error into which the court has fallen. And Congress did it in record time.”

Lawmakers have already proposed the “Not My Bosses’ Business Act” since the Supreme Court’s Hobby Lobby decision in June. But Republicans in the Senate blocked the bill from moving forward.

In her interview with Couric, Ginsburg praised the U.S. tradition of dissents, noting that “many of those dissents are now unquestionably the law of the land,” pointing to Justice John M. Harlan’s dissent to the separate but equal ruling in Plessy v. Ferguson.

In her 35-page dissent in Burwell v. Hobby Lobby, Ginsburg lambasted the majority for asserting that employers have religious rights that trump those of employees.

“I certainly respect the belief of the Hobby Lobby owners,” Ginsburg told Couric. “On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I had never seen the free exercise of religion clause interpreted in such a way.”

She explained how the law is supposed to work with an analogy she used in her dissent: A person has freedom to move his or her arms until it “hits the other fellow’s nose.” “It’s the same way with speech. Same way with religion. You can exercise your right freely until the point where it is affecting other people who don’t share your views.”

On the male justices’ future evolution, Ginsburg said she believes that “daughters can change the perception of their fathers.” She also believes that progress wins out over the course of history. Asked about the landmark Citizens United ruling that struck down limits on corporate political spending, Ginsburg said she believes her dissent in that case will also one day be the law of the land.

“That is my expectation,” she said. “I may not be around to see it but it will happen.”

Above the framed copy of the Lilly Ledbetter Fair Pay Act in her chambers, Ginsburg has a photograph of the signing of the act, given to her by President Obama with a personal message. “Happy birthday,” he wrote, “and thanks for helping to create a more equal and just society.”