In Her Own Words: 4 Of Ginsburg's Strongest Bench Dissents

Law360 (September 18, 2020, 8:58 PM EDT) -- As the senior member of the Supreme Court's often frustrated minority, Justice Ruth Bader Ginsburg's iconic voice in recent years often sounded in dissent — particularly in politically divisive cases, such as abortion, voting rights and the Affordable Care Act.

In her early days on the court, Ginsburg, who died Friday at age 87 after a protracted battle with cancer, did not often read from the bench, an act viewed as one reserved only for when the dissenter thinks the majority is particularly misguided. But she took that step more frequently with the advent of the Roberts court, as the center moved to the right and the liberal wing was left a frustrated minority.

Here is some of the most pointed language from those now classic dissents, as Ginsburg herself read them aloud from the bench.

Shelby County v. Holder

June 25, 2014

Context: Chief Justice John Roberts delivered the 5-4 opinion striking down the formula used to determine which jurisdictions with a history of discrimination must submit to federal "preclearance" before adopting changes in voting procedures. The court ruled that the formula was outdated and unconstitutional given "current conditions." Depriving the federal government of its method for identifying potentially problematic jurisdictions, the decision had the effect of eliminating federal oversight altogether.

In her dissent from the bench, Justice Ginsburg took issue with the majority's decision — and its impact. Congress passed a Voting Rights Act Reauthorization in 2006 signing off on continued preclearance, including over Shelby County, Alabama, considering the barriers that remained there to minority voting, Ginsburg said.

Those barriers, she said, were many, shocking and recent.




She left out of the bench dissent one of the most quoted phrases she included in the full written dissent, suggesting that "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

Ledbetter v. Goodyear Tire & Rubber Co.

May 29, 2007

Context: In a 5-4 ruling, the court squashed Lilly Ledbetter's case alleging she had long been paid less than other male supervisors at an Alabama Goodyear Tire plant, finding she had waited too long to file suit. The ruling limited the ability of workers to sue employers over pay discrimination particularly if they only uncovered the disparity years or decades into a job.

Ginsburg read her dissenting opinion — joined by Justices John Paul Stevens, David Souter and Stephen Breyer — from the bench, accusing the majority of ignoring the realities of the workplace.




Ginsburg also demanded that Congress step in.




Burwell v. Hobby Lobby Stores Inc.

June 30, 2014

Context: In a 5-4 majority opinion by Justice Samuel Alito, the court ruled that the Religious Freedom Restoration Act does apply to closely held companies and shields them from providing contraception coverage to their employees as required by a provision of the Affordable Care Act.

Reading her opinion from the bench, Ginsburg took issue with the court's ruling, and proposed other potential religious objections companies could pursue under the majority's ruling.




Gonzalez v. Carhart

April 18, 2007

Context: Justice Anthony Kennedy delivered the 5-4 ruling that upheld the Partial-Birth Abortion Ban Act passed by Congress in 2003. It was the first abortion case the court had considered since Justice Sandra Day O'Connor retired from the court, and the act did not contain an exception for a women's health. That had doomed an earlier law considered by the court when O'Connor was on the bench.

Reading her dissent from the bench, Ginsburg called the majority's decision "alarming" and challenged the majority's claim that it was adhering to precedent on this issue.




--Editing by Pamela Wilkinson.

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