Justice Ruth Bader Ginsburg served on one of the most pro-business Supreme Courts in recent history. But like much of her judicial legacy, her own track record was more complicated. While the justice was deeply preoccupied with equality, she was often in the minority and forced to work at the edges of an increasingly conservative court. For a brief tour of Ginsburg's 27-year stint on the high court, here are five cases — three opinions and two dissents — that provide a look at her influence on business.
Opinions
United States vs. O’Hagan - 1997
Ginsburg authored this 6-3 decision on insider trading just four years after her nomination by President Bill Clinton in 1993. The Securities and Exchange Commission was pursuing fraud charges against James O'Hagan, a partner at Dorsey and Whitney law firm, for profiting off stock options based on information then unknown to the public. The 8th Circuit Appeals Court overturned the convictions, however, and ruled that the non-public information needed to come from his own company, rather than his client, to qualify as insider trading. Ginsburg's opinion made it clear that failing to disclose profits gained from exclusive information was illegal, broadening what qualifies as insider trading.
Campbell-Ewald Company vs. Gomez - 2016
This 5-4 decision authored by Ginsburg was a subtle but important win for consumers' ability to bring class action lawsuits. Jose Gomez had sued the Campbell-Ewald Company, a marketing consultant, for allowing a third-party vendor, in this case the U.S. Navy, to send unsolicited text messages to him in 2006. This is illegal under the federal Telephone Consumer Protection Act. Campbell-Ewald made an offer to settle the case financially. When Gomez refused, the company argued that rejecting the settlement made the claim moot. But Ginsburg held that a settlement offer, unaccepted or otherwise, does not negate a claim. In effect, this makes it harder for corporations to tamp down lawsuits with settlements.
Friends of the Earth v. Laidlaw Environmental Services - 2000
This is a tricky one, but essentially lower courts ruled that an industrial polluter, Laidlaw Environmental Services, was no longer required to provide relief to plaintiffs because it had since brought its operations into compliance. In other words, they claimed there was nothing else for the company to do. Ginsburg disagreed. Her 7-2 opinion said that voluntarily halting unlawful conduct does not make a case moot. She also wrote that civil penalties after the fact can help deter future violations.
Dissents
Ledbetter v. Goodyear Tire & Rubber Company - 2007
In perhaps Ginsburg's most famous dissent, she argued against a decision by the court's conservative majority that plaintiff Lilly Ledbetter's salary discrimination suit was "time-barred" to look at a 180-day period rather than her whole 19-year career working for Goodyear. This shut down Ledbetter's more expansive claim, which was that she'd been underpaid for almost two decades due to her gender. Ginsburg said the majority decision missed the point entirely.
“The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination,” she wrote. “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops over time. Comparative pay information, moreover, is often hidden from the employee’s view."
Congress that year introduced the Lilly Ledbetter Fair Pay Act, which lifted the 180-day statute of limitations for pay discrimination claims. The bill passed soon after President Barack Obama took office.
Burwell v. Hobby Lobby Stores - 2014
Using a First Amendment argument, the conservative majority ruled in this case that for-profit companies could deny employees health coverage of contraception on religious grounds. The crux of the opinion is that corporations are composed of individuals, and so have the same rights. A similar line of argument was employed in the controversial Citizens United decision, which uncapped campaign donations from political action committees on free speech grounds, a few years earlier.
Ginsburg's dissent claimed the ruling would cause "havoc" as other companies sought legal exemptions on religious grounds. While this future has arguably not come to pass, at least not yet, many see the dissent as a bold stand against a growing consensus on the court equating corporations with individuals.
