THE BIGGEST CHANGES OFTEN CAN COME FROM SMALL PACKAGES

CCDC mourns the passing of Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg

Julie Reiskin, CCDC Executive Director

Kevin Williams, CCDC Civil Rights Legal Program Director

There are no appropriate expressions to describe the magnificence of this Supreme Court Justice except to say she got the message. Justice Bader Ginsburg believed strongly in the words engraved on the front of her work home for 27 years, “Equal Justice Under Law.” Words you cannot miss when entering the United States Supreme Court building. Justice Bader Ginsburg believed in equal justice under the law, most notably for women, but, more importantly, for everyone. In her personal opinion and those she authored for the court, Justice Bader Ginsburg understood that “We the People” means all people – not only rich white men who have prevented so many people, different from themselves, from attaining equal justice under the law.

Justice Ginsburg left this world on September 18, 2020, at age 87, after a long fight with pancreatic cancer. She left this country with changes in the law that will be remembered forever; changes that must also be preserved.

For nearly 200 years (1789-1967), the Supreme Court looked something like this:

There is a reason the Supreme Court looked like it did. It is called “discrimination” – a term and its insidious effects we at CCDC are familiar with, as was Justice Bader Ginsburg, a.k.a. “The Notorious RGB.” Justice Ginsburg understood discrimination because she lived it. She graduated as the highest-ranking female student in her class from Cornell University. She then enrolled at Harvard Law School as one of only nine women with approximately 500 men, eventually serving on the Harvard Law Review. At one point the Dean asked all nine women the same question, “Why are you at Harvard Law School, taking the place of a man?” 

Ginsburg transferred to Columbia Law School when her husband, Marty Ginsburg, a tax lawyer, took a New York City job. At Columbia, she became the first woman to be on two major law reviews: Harvard and Columbia. In 1959, she earned her law degree at Columbia, graduating joint first in her class. 

Achieving such high honors should have led to a great career with a New York City law firm. However, Justice Ginsburg could not find employment. She explained it this way: despite her extraordinary academic achievements, she had three strikes against her: she was (1) a woman; (2) Jewish; and (3) at that time, had a young child. The expected norm in the late 50s and early 60s was for her to be her child’s caretaker. These combined factors meant finding a job with almost any law firm was nearly impossible. In 1960, Supreme Court Justice Felix Frankfurter, based on her gender, rejected her for a clerkship position. 

In 1963 she became a professor at Rutgers Law School, despite being told that she would be paid less than her male colleagues because her husband had a well-paid job. These experiences led her to co-found the Women’s Rights Law Reporter, a law journal focused exclusively on women’s rights.

It was not until 1967 did the look of the court begin to change with the first Black man named to the Supreme Court – Justice Thurgood Marshall. It was another 26 years before the first woman would be appointed when in 1981, President Ronald Regan nominated Justice Sandra Day O’Connor.

In 1993, 206 years after the Supreme Court’s establishment, President Bill Clinton appointed Justice Ginsburg. The United States Senate confirmed her by a 96–3 vote on August 3, 1993.

In 1972, Ginsburg co-founded and was General Counsel of the Women’s Rights Project at the ACLU. From 1972 to 1974, she participated in over 300 gender discrimination cases. Famously, she successfully argued 5 out of 6 gender discrimination cases before the Supreme Court, claims brought on behalf of both women and men, demonstrating that gender discrimination is harmful to both. 

It wasn’t until Ginsburg’s work in Reed v. Reed, 404 U.S. 71 (1971) that the Supreme Court extended the Equal Protection Clause of the Fourteenth Amendment to women. It prohibits any state from denying “any person equal protection of the laws.” She calculated her winning method by following the strategic approach of Thurgood Marshall, taking a step-by-step approach to challenging gender-based discriminatory laws under the Equal Protection Clause.

Justice Ginsburg was a true believer in equality for everyone. She authored the majority opinion in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) demonstrating her strong commitment to the equal rights of people with disabilities. This landmark decision holds that people with mental disabilities must receive treatment and services in the most integrated setting appropriate to the individual’s needs. This decision established one of the most critical features of the Americans with Disabilities Act (“ADA”): preventing the needless institutionalization of people with disabilities capable of living in the community. Also, this decision recognizes that undue institutionalization qualifies as “discrimination.” 

In reaching this conclusion, joined by a plurality of the Court, Justice Ginsburg relied heavily on the findings and purposes of the ADA including Congress’ determination that 

[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem . . . discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization.

The disability community has long hailed the Olmstead decision as acknowledging the simple yet historically unrecognized reality that people with disabilities should live in “Our homes, not nursing homes!” The Olmstead decision is also the very purpose of the political action disability group ADAPT. ADAPT members are friends and allies of CCDC, people who have spent their lives protesting unnecessary segregation and isolation of people with disabilities. Justice Ginsburg’s opinion in Olmstead was the U.S. Supreme Court’s first recognition that people with disabilities may no longer be incarcerated in nursing homes and other institutions when, instead, living in the community is the appropriate answer. The Olmstead decision remains one of the most important Supreme Court decisions ever reached regarding the end of unnecessary discrimination against people with disabilities. It also demonstrates Justice Ginsburg’s understanding of one of the most crucial of the ADA’s promises – that all people, regardless of perceived differences, are entitled to the same opportunities and equal protection under the law. It was no longer permissible to hide and keep from public view, people with disabilities. CCDC cannot thank Justice Ginsburg enough for this critical ruling. She was a true believer in equal and social justice for all people. 

According to Justice Ginsburg:

When I’m sometimes asked “When will there be enough [women on the Supreme Court]?” and I say “When there are nine,” people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.

It may well be said that Justice Ginsburg’s dissenting opinions are also essential expressions of all people’s equality. Justice Ginsburg has stated publicly that one of her proudest professional moments came when authoring the dissenting opinion for Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). The claim was regarding unequal pay for equal work. Upon retirement, Lilly Ledbetter discovered the pay discrepancy. However, the majority opinion held that Lilly Ledbetter did not raise her claim within the 180-day time frame to bring a claim. Justice Ginsburg made clear in her dissenting opinion that the ongoing disparity in payment between women and men is not something that is discovered paycheck by paycheck. Therefore, the 180 day period in which the majority found had expired was insufficient to ensure proper compensation for such pay disparities. This case led to Congress passing the Lilly Ledbetter Fair Pay Act of 2009, signed into law by President Barack Obama. 

CCDC Executive Director Julie Reiskin could not agree more with Justice Ginsburg’s famous quotation, 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”

The importance of Justice Ginsburg’s passing is a stark reminder to all of us an issue Kevin Williams has been raising with CCDC members and people with disabilities for years:

“Everyone knows that all Federal Court judges and Supreme Court judges are appointed by the President and confirmed by the Senate’s advice and consent. If you don’t think voting matters, you’re not paying attention.”

As of right now, there are less than 45 days until the next presidential election.

The immediate question for all voters and constituents should be whether the current President and Senate should push through this lifetime appointment now or wait until the next presidential election? The last time a Justice died was in 2016 – ten months before the presidential election.  Senator Lindsey Graham, chair of the Senate Judiciary Committee, said the following before the 2016 election shortly after the death of Justice Antonin Scalia:

“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, “Let’s let the next president, whoever it might be, make that nomination.”

He then repeated, 

“And you could use my words against me, and you’d be absolutely right.”

Also, Senate Majority Leader Mitch McConnell echoed Senator Graham’s comments in February 2016:

“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next President may also nominate someone very different. Either way, our view is this: Give the people a voice.”

However, on September 18, 2020, within hours of her death, both senators said they intended to fill the seat left vacant by Justice Ginsburg’s death. Any nominee President Trump puts forward will receive a vote on the floor of the United States Senate.  

CCDC ENCOURAGES OUR MEMBERS to call both Colorado Senators and ask them to wait until after the inauguration and then have an appropriate vetting process.

Contact Senator Cory Gardner

Contact Senator Michael Bennet

No one knows what will happen between now and November 3, 2020, but CCDC encourages you to vote. See Colorado Voter Q & A from CCDC. Your vote counts! Why, when individual voters do not vote for Federal Court judges? It is simple: 

• Federal courts and judges under federal law hear civil rights cases for people with disabilities.
• The president appoints federal judges.
• The Senate confirms the appointment through their power of “Advice and Consent.”
• Therefore, the protection of people with disabilities is in the hands of the President and the Senate.

We will miss Justice Ginsburg for her wisdom, passion for equality, humor, and contributions to the Supreme Court, particularly in equal rights for all people for the last 27 years. 

We continue to ask you to vote on or before November 3. Colorado mail-in ballots will arrive on or around October 9th. In short, voting remains highly important if for no other reason than to ensure the judges throughout the federal court system, including the Supreme Court, are appointed by a President who holds your same values and will nominate the federal judges you want. 

Vote as if your life depended on it. It just might.

Call our Senators and demand a reasonable, thoughtful process for vetting our next Supreme Court Justice.

Contact Senator Cory Gardner

Contact Senator Michael Bennet