In this Sept. 29, 20009 file photo, Supreme Court Justice Ruth Bader Ginsburg poses with other Supreme Court judges for a new group photograph at the Supreme Court in Washington. (AP Photo/Charles Dharapak, FILE)
September 25, 2020
Ruth Bader Ginsburg was given many labels during her 27-year stint on the Supreme Court. Early on, she was called a centrist. Then she grew into the role of leading liberal justice, seen by many as a champion of left-wing causes such as abortion rights, gender equality, and environmental regulation in an increasingly right-wing court. Toward the end of her career, she flitted between feminist icon, meme subject, and beloved documentary star.
Pro-business, however, was not a label usually applied to the late justice. As a fierce defender of women's equality in the workplace, she was often at odds with companies unwilling to account for decades of unequal treatment. Then again, she wasn't considered anti-business either. As a strict defender of copyright law, she became a reliable vote in favor of corporations seeking to protect their intellectual property.
Squaring this more nuanced portrait of Ginsburg with her status as a celebrated liberal icon — whose empty seat is likely to kick off the most heated political fight of the election season, if not the Trump presidency — requires analyzing a truly vast body of work. But a closer look at some key areas where Ginsburg was most influential reveals a jurist who defied easy ideological categories, especially when it came to business.
"Justices are human as well," Leah Litman, a University of Michigan law professor and former clerk for Supreme Court Justice Anthony Kennedy, told Cheddar. "No one is perfect, and trying to ascertain someone's legacy at a moment when the Supreme Court's composition and direction is about to change so dramatically is sort of a fraught task."
The constitutional lawyer — who herself showed up on a shortlist of possible Joe Biden Supreme Court picks — makes the case that a consistent philosophical thread runs through Ginsburg's jurisprudence.
"As a general manner, she was someone who was very attentive to how economic power, in particular, and unequal economic and political power could be a real danger to individuals' access to civic society and important government institutions," Litman said.
This perspective was most evident in areas such as arbitration law, she added. Litman pointed to cases such as Epic Systems Corp. v. Lewis, in which the court's conservative majority ruled that companies could require employees to settle disputes through individual arbitration rather than class action lawsuits. Ginsburg's dissent argued that the power imbalance between employer and employee makes greater protections for workers necessary.
"The justice consistently voted with the group of justices who were very skeptical about corporations' ability to foist mandatory arbitration on people who didn't have the economic power to bargain out of those arrangements and would thereby lose their right to seek remedy in federal courts," Litman said.
The fact that Ginsburg's most critical positions often took the form of dissents rather than opinions reflects the conservative composition of the Roberts Court, and the Supreme Court in general, for at least the last four decades. Republican-appointed justices have held a slim majority over Democrat-appointed justices since the 1960s, when Chief Justice Earl Warren presided over a string of progressive victories.
In recent years, that conservative, pro-business bent has only intensified. The U.S. Chamber of Commerce, for instance, won 70 percent of the cases it has filed since 2006, according to a study from the Constitutional Accountability Center, a progressive think tank.
"No one should begrudge a litigant that wins a close case with strong arguments on their side," Elizabeth Wydra, president of the nonprofit, said in a statement. "However, corporations and the Chamber know that they can depend on the Roberts Court to rule their way in a striking number of critically important cases, whether the law favors them or not."
Ginsburg wasn't immune to the changing of the tides, however. A 2015 study tracking "business favorability" on the high court found that even liberal justices voted in favor of businesses more often in the Roberts Court than in the previous chief justice eras. Ginsburg voted in favor of businesses 47 percent of the time after 2005, compared to 38 percent during the Rehnquist era, which is still well above past liberal justices such as Earl Warren (25 percent) and Abe Fortas (19 percent).
In part, this change is the result of more unanimous decisions favoring businesses. As the report points out, "when the Roberts Court speaks with one voice, that voice favors business in over 60% of decisions." But Ginsburg's relative centrism is also a likely factor.
"It's a pretty business-friendly court, and she was a liberal on it, but that's not saying a ton," said Samuel Moyn, a professor of jurisprudence at Yale University.
Moyn draws a distinction between Ginsburg's well-earned reputation in fighting for "status equality" as opposed to "distributive equality." In other words, he explained, she fought for historically underrepresented or excluded groups to gain access to the same opportunities as everyone else, but she wasn't as interested in achieving economic equality.
"We live in this interesting period where women and men, thanks to Justice Ginsburg, are treated more equally," he said. "But she hasn't shown the same concern for the fact that in the same period rich women became less equal to the rest of women in class terms."
Litman maintains that Ginsburg's ultimate goal was achieving the latter by securing the former for disadvantaged groups.
"I guess I view those two areas as reflecting the shared premise that historically disadvantaged groups or groups who historically have been excluded from government power and important institutions should have a fair shot," she said.
One area where Ginsburg clearly favored corporate interests is copyright law, though that issue is difficult to place neatly into a left-right divide.
"She was widely known as an IP maximalist when she was on the court, which is to say she generally sided in favor of broad protections for copyright owners," said attorney Aaron Moss of Greenberg Glusker Fields Claman & Machtinger LLP. "Contrast that to somebody like Justice Breyer, who generally didn't believe that we needed to incentivize people to create by extending the terms of copyright limits."
Ginsburg's opinion in Eldred v. Ashcroft, for instance, held that Congress had the right to extend copyright terms under 1998's Copyright Term Extension Act. Breyer's dissent argued that the law amounted to a "perpetual copyright" and could even restrict free speech.
Where Ginsburg's commitment to copyright law stemmed from is unclear, but it's a prime example of how Supreme Court justices are often more idiosyncratic than the political parties that confirm them.
In the case of climate change, for example, Ginsburg supported giving the government broad powers to regulate companies in the energy industry, and she played a pivotal role in creating legal precedents in the still relatively limited body of case law concerning climate change.
"[Ginsburg] authored Friends of the Earth v. Laidlaw Environmental Services, which is probably the most important case of the last quarter-century, perhaps the last 40 years, establishing the rights of the people to go into court to protect themselves and the environment from unlawful pollution when the government abdicates its duty to do so," said Michael Wall, litigation director at the Natural Resources Defense Council.
Litman said these commitments reflect a basic belief in the power of government to address the country's problems.
"She believed in expert agencies' ability and power to address problems that face our country, like climate change or wage theft or whatever the case may be," she said. "She was someone who believed that government institutions should be able to use their power in order to solve common problems and rectify disparities in economic or political power."