"Throughout her legal career, Justice Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions."
in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”
The justice’s acquaintances have watched with great interest what some depict as a late-career transformation. “Her style has always been very ameliorative, very conscious of etiquette,” said Cynthia Fuchs Epstein, the sociologist and a longtime friend. “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”
Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.
Justice Alito, of course, took the place of Justice Sandra Day O’Connor, with whom Justice Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Chief Justice Roberts succeeded Chief Justice William H. Rehnquist, with whom Justice Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.
For example, in 1996, over Justice Scalia’s vigorous dissent, the chief justice gave Justice Ginsburg his vote in a decision holding that the Virginia Military Institute’s men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today’s adversary could be tomorrow’s ally.
If there has been any such meeting of the minds between Justice Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side’s interests are better served by appealing not to the court’s majority but to the public. “She’s sounding an alarm and wants people to take notice,” said Debra L. Ness, president of the National Partnership for Women and Families, an advocacy group that focuses on the workplace.
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