I have long felt that Roe V. Wade should not have happened when it did. This issue should have been left with the
states, at least until it was overwhelmingly clear where the public, state by
state, was going. Ginsburg believes the
issue when dealt with by the Court, should have revolved around equality, not
around privacy; she additionally believes the Court should only rarely get ahead of public
opinion and Roe v. Wade, she believes, was not a timely decision.
Just a month, before I began this book, my brother
and I, both over 70 years old, were discussing how fortunate we are to have
married women with brains. Justice
Ginsburg makes an issue of this appreciation for brains in women in this book
and believes that her husband, who believed the same as my brother and I, was
unusual for the time. Up until now, I
believed that I would never join a club that would have me (ala Groucho), but
am more than willing to belong to this club.
My Notes:
Pg. 19: As a
co-founder of the ACLU’s Women’s Rights Project, Ginsburg sought from 1972 to
1980 to persuade the Supreme Court that legislation apparently designed to
benefit or protect women could often have the opposite effect. For this reason, she chose to represent a
series of male plaintiffs who had been denied legal benefits designated for
women. She wanted to take the Court step
by step to the realization, in Justice Brennan’s words, that the pedestal on which some thought women
were standing all too often turned out to be a cage. (P. 24).
Pg. 49f: When
the Constitution was new “We the People” did not count very many people. Not those in bondage not Indians, not women,
and not even most men, because you had to be a property owner as well as be a
man. Over two centuries the idea of “We
the People” has become more and more embracive as a result of constitutional
amendments and judicial interpretation. The word equal becomes a part of the
Constitution in the Fourteenth Amendment.
.
Pg. 51: When
Ginsburg was nominated by Bill Clinton in 1993 to be an associate justice of
the Supreme Court, the most controversial part of her constitutional record was
her criticism of the legal reasoning in Roe v. Wade. She
stated that Roe had been decided too
broadly, preventing public opinion from catching up to the courts. She felt the Court in 1973 should have simply
struck down the Texas law at issue in the case and should have resisted the
temptation to impose a national framework for abortion, the case might have
inspired less of a backlash, allowing a growing number of state legislatures to
recognize a right to reproductive choice on their own. Her feminist’s critics failed to appreciate
that Ginsburg was laying the ground-work for a firmer constitutional foundation
for reproductive choice, one rooted in women’s equality rather than the right
to privacy. If Roe had been based on the
Equal Protection Clause of the Constitution instead of on the Due Process
Clause, Ginsburg insisted it would have been more constitutionally convincing.
Pg. 56:
Ginsburg in 2018 does not believe Roe will be overturned but that it
will be narrowed and the greatest effect will be felt by poor women who live in
areas where access to abortion was already limited. Wealthier women could just go to where they
could get access.
Pg. 58: Even at the time of Roe v. Wade, there were four states where a woman who wanted an
abortion, at least in the first trimester, could have access to a safe legal
abortion. (I had a hard time
researching this point, I gave up for now)
Pg. 83: The
Fourteenth Amendment says, “…nor shall any State deprive any person
of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” It does not say
citizen. Ginsburg also believes that the
Constitution follows the flag. Wherever
a US representative acts, our Constitution is her guidebook. That view, however, is not shared by the
current majority of the court.
Pg. 122:
Justice Ginsburg strongly disagrees with some 5-4 decisions of the
Robert’s Court. They include the 2010 Citizens United v. Federal Election
Commission, and the 2013 voting rights case Shelby County v. Holder. She
also lamented Robert’s decision to join his fellow conservatives in National Federation of Independent Business
v. Sebelius in 2012, in which they held that Congress has no power under
the Commerce Clause, to pass the Affordable Care Act. (Roberts’s decision to switch his vote and to
uphold the ACA as a tax did not entirely mollify Ginsburg’s concerns.)
Pg. 132:
Ginsburg’s dissents are becoming increasingly fiery. She wrote, “The Court, I fear, has ventured
into a minefield,” in her dissent from the five-to-four Hobby Lobby decision that
allowed employers to exempt themselves from regulations that conflicted with
their religious beliefs. “Would the
exemption…extend to employers with religiously grounded objections to blood transfusions,
antidepressants (Scientologists); medications derived from pigs, including
anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims,
Jews, and Hindus); and vaccinations?”
Pg. 151f: Footnote 4 appears in a 1938 case called United States v. Carolene Products. The decision held that it is not generally
the role of courts to second-guess legislative decisions, except in cases when
those decisions themselves might be infected by racial prejudice or other flaws
in the political process. When
considering economic legislation, Chief Justice Stone said, judges should
presume the laws are constitutional. But
in footnote 4, he identified three
circumstances where ‘the presumption of constitutionality’ might not apply
and where laws should be ‘subjected to more exacting judicial scrutiny’: first,
in such as laws restricting freedom of speech; second, in cases where laws
restrict the ‘political processes which can ordinarily be expected to bring
about repeal of undesirable legislation,’ such as laws restricting freedom of
speech; and third, laws ‘directed at
particular religious, or national, or racial classes where the law violated a
specific prohibition written down in the text of the Constitution or the Bill
of Rights.
Pg. 154f: Ginsburg rates worst decisions Court has
made: First, is Citizens United where the notion that we have all the democracy
that money can buy strays from what our democracy is meant to be. Number two is that part of the health care
decision (National Federation of
Independent Business v. Sebelius) that concerns the Commerce Clause. Since 1937, the Court had allowed Congress a
very free hand in enacting social and economic legislation. Number three is Shelby County, involving essentially the destruction of the Voting
Rights Act. The majority’s position was
that since 1965 states that may have discriminated before may no longer be
discriminating. And fourth is Gonzales v. Carhart, the so-called
partial-birth abortion case.
Pg. 182: The #MeToo movement began in October 2017
when the NYT reported that film producer Harvey Weinstein was being accused by
several women of sexual misconduct spanning three decades. The actress Ashley Judd was one of the first
to gain attention. (see my report on Farrow’s book “Catch and Kill”).
Pg. 183:
Ginsburg views the #MeToo movement as an example of how quickly social
change can be produced by political activism from the ground up. (#MeToo is the third explosion of feminism: first, 19th
amendment; second, the women’s movements in the ‘60s and ‘70s reaction against
women effectively locked in a house with four kids and no employment prospects; and now #MeToo). In
Ginsburg’s view, legal change follows social and political change, not the
other way around. The Equal Pay Act of
1963 and Title VII of the Civil Rights Act of 1964, for example, reflected the
social changes of the post WWII era, an unprecedented growth in the employment
of women precipitated by a sharp decline in necessary home-centered activity,
curtailed population goals and more effective means of controlling
reproduction, and vastly extended life spans.
Pg. 218: With the retirement of Justice Kennedy, Chief
Justice John Roberts emerged as the new swing justice, joining the four liberal
justices in several crucial cases, including Madison v. Alabama, which halted Alabama’s effort to execute a
mentally ill prisoner, and Department of
Commerce v. New York, the Trump administration’s initial effort to add a
citizenship question to the 2020 census.
Pg. 219: In Gundy v. United States, the Court six-member majority refused to resurrect the so-called non-delegation doctrine,
which in the pre-New Deal era, imposed limits on Congress’s power to delegate
rulemaking authority to administrative agencies. “If this delegation is unconstitutional, then
most of Government is unconstitutional” ruled the Court. (I believe the delegation is unconstitutional
but too late to do anything about it—which I believe the court is actually
saying here).
Pg. 229: The stain of slavery kept the ideal of
equality stated in the Declaration of Independence out of the Constitution
until the Fourteenth amendment in 1868.
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