“Fight for the things you care about, but do it in a way that will lead others to join you.”
--Justice Ruth Bader Ginsburg
Living constitutionalist, incrementalist, empathetic, progressive but strategic: These were among the descriptions of Justice Ruth Bader Ginsburg during a Sept. 22 conference that focused on a new book edited by UNH Franklin Pierce School of Law Professors Ryan Vacca and Ann Bartow: The Jurisprudential Legacy of Justice Ruth Bader Ginsburg.
“The book is not a biography. This is about her jurisprudence—her judicial philosophy and what principles, experience, theories, and beliefs drove her to decide the cases the way she did,” said Professor Vacca in opening remarks. “The book paints a rich and nuanced portrait of Justice Ginsburg’s jurisprudence.”
Although Justice Ginsburg is perhaps most widely known for her successes advocating for gender equality — and for her immense pop-culture influence later in life as the Notorious RBG, as Professor Vacca described it — she also influenced a multitude of legal subject areas during her long legal career, which included serving 27 years on the U.S. Supreme Court until her death in 2020.
Legal scholars who contributed chapters to the new book traveled from around the country for the day-long conference at the University of New Hampshire Franklin Pierce School of Law, discussing their essays on such topics as gender and the law, citizenship and immigration, health law, copyright law, freedom of expression, and patent law.
The conference was co-sponsored by the Warren B. Rudman Center for Justice, Leadership & Public Service in observance of Constitution Day.
Visit here for a recording of the event accompanied by visual presentations. Listen to an interview with Professor Ryan Vacca on The Legal Impact here.
CONFERENCE COMMENTS
(quotes have been edited slightly for clarity)
I do think that her life’s work has been turning the equal citizenship principle that is supposed to be central to our constitutional promise into something that at least works better for women. Equal citizenship is a cornerstone of our constitution and our constitutional democracy. It is what makes our political outcomes legitimate. It is central to so many of our individual rights and promises, especially equal protection. So Justice Ginsburg’s life’s work has really been to help articulate an understanding of equal citizenship of women that is not just deference to the majoritarian political process.
-- Professor Deborah Brake, University of Pittsburgh School of Law
Justice Ginsberg’s opinions in the immigration cases reflected her careful and firm adherence to principles of equality and liberty, including as applied to noncitizens, and her principled approach to statutory text and structure, to precedent, and to judicial restraint when appropriate to the extent it preserved judicial independence.
-- Professor M. Isabel Medina, Loyola University New Orleans College of Law
It’s impossible to talk about Justice Ginsburg’s health law legacy without also talking about gender and without also talking about her judicial philosophy and her approach to the Court’s role in society. In general, she thought access to health care is a prerequisite to full participation in the democratic society, that is it is impossible to compete in a capitalist society and participate in social life if you don’t have your basic needs met.
--Professor Kirin Goff, Mel & Enid Zuckerman College of Public Health and James E. Rogers College of Law at the University of Arizona.
For Justice Ginsburg it was very important that federal courts not consider themselves the supreme decision makers in the government but that they were coordinate with the legislative and executive branches and that they should constrain political actors only reluctantly.
--Professor Heather Elliott, University of Alabama School of Law
Her opinions in this area evidence her reluctance to expand the reach of patent law beyond U.S. borders. … It is evident that she was a supporter of innovation and the advancement of technology.
--Professor W. Keith Robinson, Wake Forest University School of Law.
In the realm of federal statutes, she tended to be quite faithful to the text of the statute. In constitutional questions, I think she was probably more of a living constitutionalist. But when it came to federal statutes, like the bankruptcy code, she was much more of a textualist, although she really skillfully blended text with context.
--Professor Mary Jo Wiggins, University of San Diego School of Law
She was a big proponent of protecting the speech we hate and protecting offensive speech. But she was not an absolutist on freedom of expression either. She believed that speech was a continuum, and there is some speech that should be very protected and some speech that’s not protected at all. She definitely believed in categories of speech that deserved no protection, such as incitement.
--Professor JoAnn Sweeny, University of Louisville, Louis D. Brandeis School of Law
Ginsburg is not only empathetic, but she is also very pragmatic. She’s faithful to the rules.
--Professor Maria O’Brien, Boston University School of Law
The common story about RBG’s copyright jurisprudence is that she heavily favored copyright owners who tended to be the Goliaths in copyright disputes. She was beloved by the music and film industry for copyright decisions but, of course, this seems like an odd fit given her general legacy. And if we look at both her written and joined opinions, there is some truth to this belief; she overwhelmingly favored owners and authors over accused infringers. But what drove these decisions? We identified three jurisprudential themes in her copyright decisions: incrementalism, intergovernmental deference, and seeking alternatives.
--Professor Ryan Vacca, University of New Hampshire Franklin Pierce School of Law
She tried to honor the spirit and the reality of the litigants’ constitutional rights, whether it was a 13-year-old girl accused of selling prescription drugs at her Arizona middle school, whether it was a prisoner in Michigan being interrogated by the police, whether it was a Kentucky man peacefully residing in his own home when officers barged in without a warrant.
-- Professor Melissa Breger, Albany Law School
She was actually criticized for being so pro arbitration earlier in her time. ... But she was very critical at the end of her time of any arbitration agreements that deprived consumers and employees of their right to pursue collective litigation. Some of her most strident dissents occurred in the arbitration context.
--Professor Jill Gross, Pace University Elisabeth Haub School of Law
Her own consistent articulation of the heightened scrutiny that she applied in gender and now in race is one of remediation and one that continues to seek a more perfect union and seeks to address the history of discrimination.
--Jeffrey D. Hoagland, Law Clerk to Judge Megan P. Duffy at the New Mexico Court of Appeals
