[Cass R. Sunstein] Ginsburg cleared path to include the excluded

It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member.

The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.”

Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd -- you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement.

I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief.

Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual‘s opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

She added that while Virginia’s educational plan might serve “the Commonwealth’s sons, it makes no provision whatever for her daughters. That is not equal protection.”

The second opinion was Friends of the Earth v. Laidlaw Environmental Services. The case raised the question of when and whether ordinary citizens could get access to federal court to object to illegal pollution.

It’s a technical issue, and to answer it, it’s essential to know whether anyone had been “injured.” To answer that question, Ginsburg got personal. She told people’s stories.

She pointed to Kenneth Lee Curtis, a member of Friends of the Earth, who said “that he lived a half-mile from Laidlaw‘s facility; that he occasionally drove over the North Tyger River, and that it looked and smelled polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3 and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so because he was concerned that the water was polluted by Laidlaw’s discharges.”

Ginsburg added that Angela Patterson, who was also seeking to bring suit, “lived two miles from the facility,” and “that before Laidlaw operated the facility, she picnicked, walked, bird-watched, and waded in and along the North Tyger River because of the natural beauty of the area; that she no longer engaged in these activities in or near the river because she was concerned about harmful effects from discharged pollutants.”

After reading about Curtis and Patterson, many people would think: Those two have clearly been injured. Why can’t they get access to federal courts? Writing for the Supreme Court, Ginsburg ruled that they could.

Her opinion has reverberated throughout many areas of the law, involving not only water pollution and environmental protection, but also health, safety and civil rights.

And her opinion in the Friends of the Earth case reflected something close to her very core: Everyone deserves a day in court -- a right to be treated with respect and dignity, and a fair chance to be heard.

In United States v. Virginia, Justice Ginsburg wrote that a “prime part of the history of our Constitution” has been “the story of the extension of constitutional rights and protections to people once ignored or excluded.” The most important words are the last four: “once ignored or excluded.” Once -- but no more.

On the occasion of her death, let’s pause over that continuing story. Ruth Bader Ginsburg wrote some of its best chapters.


Cass R. Sunstein
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.” -- Ed.

(Bloomberg)