Balls Tossed Into the Legislator’s Court

THE NEW YORKER, March 11,2013

PROFILES: HEAVYWEIGHT, by Jeffry Toobin

How Ruth Bader Ginsburg has moved the Supreme Court:

“As a litigator, Ginsburg brought cases before the court that transformed its view of gender issues. Yet, one observer says, “she’s very cautious, conservative in a Burkean sense.” He adds, “She fundamentally does not believe that large-scale social change should come from the courts.”

Ruth Bader Ginsburg, a U.S. Supreme Court Justice, has worked on gender issues as a private litigator, a Circuit Court Judge and as a Supreme Court Justice: “that a clause in the fourteenth Amendment (‘no state shall…deny to any person within its jurisdiction the equal protection of the laws”) prohibited discrimination on the basis of sex, not just race.” 

Ginsburg at the Madison Lecture she gave at New York University Law School in 1972 “challenged one of the great women’s-rights landmarks in American Law, Roe v. Wade…although she supported abortion rights, she had substantial misgivings about how the Court had decided Roe V. Wade, as it went well beyond the Texas statute and declared unconstitutional practically every law banning early-term abortions.” 

” Instead of a broad ruling, Ginsburg asserted the Justices should have addressed abortion the way they approached the cases that she had brought regarding women’s rights.  In those decisions, Ginsburg said, ‘the Court, in effect, opened a dialogue with the political branches of government…the Supreme Court wrote modestly, it put forward no grand philosophy.  The ball, one might say, was tossed by the justices back into the legislators’ court, where the political forces of the day could operate.’ Roe v. Wade ‘invited no dialogue with the legislators.”

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