Justice Ginsburg has been one of this term’s most prolific dissenters. Ginsburg penned the caustic dissent in Carhart and again more recently in Ledbetter. While Ginsburg has always been a vocal advocate of women’s rights, the Court’s present state is perfect for Ginsburg to voice her opinion in a way we’ve almost never seen before. First, Ginsburg is the only woman on the court. As the lone woman, Ginsburg has the authority to ‘speak’ for a huge percentage of Americans. More importantly, Ginsburg has been losing a lot of cases. Majority opinions generally have to rule narrowly on the issues in the case. Authors of majority have no reason to flaunt an opinion or make outrageous statements because, well, they’re opinion of an issue is now court precedent. Dissenting justices, however, have a tendency to make broad claims and grave predictions about the future. The sudden inclination of dissenting justices towards grave premonitions is neither unexpected nor inexplicable.
Justice Ginsburg is positioning herself, intentionally or not, to be the next great Justice on the court. The reputation of progressive Justices have fared better than those their conservative colleagues over time and Justice Ginsburg must is surely aware of that. Her dissent in Ledbetter is sure to be viewed in 50 years as a riveting defence of the common man in an age of judicial conservatism.
Here are excepts from some of my favorite dissent of all time. See if you can identify the case, I’ve included the answers at the bottom.
We need not refer to the mercenary spirit which introduced the infamous traffic in slaves to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.
I prefer the lights of Madison, Hamilton, and Jay as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom, and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised, the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.
Highlight the lines below to find the answers.
A- McClean in Dred Scott v. Sanford.
B- Ginsburg in Gonzales v. Carhart
C- Harlan in Plessy v. Ferguson
D- Homles in Abrams v. US