Over the days and weeks ahead, we will continue to mourn and reflect on the loss of Supreme Court Justice Ruth Bader Ginsburg. Her passing — on the eve of the Jewish New Year and the day after Constitution Day — leaves a hole in our hearts and on the Supreme Court.
As the national dialogue begins to determine who is worthy to succeed such a giant in American history, we should start by recognizing what made her so special.
Justice Ginsburg’s belief in and commitment to the rule of law as a force for justice stands as a testament to our nation’s founding ideals — that we are a nation of laws, not the whims of rulers, and we are committed to working toward a more perfect union.
Today, the level of cynicism about our institutions, including our judicial system, is dangerously on the rise. Both how Justice Ginsburg’s seat is filled, and who fills it, will either contribute to or ameliorate that cynicism.
During Justice Ginsburg’s early years, women were unequal under the law. Some states restricted women from serving on juries or serving as an executor of a will.
And entire professions — think serving in the military — were off limits to women. Ginsburg deliberately developed a strategy for transforming the understanding of the Equal Protection Clause of the U.S. Constitution; that strategy paved the way for women to be treated equally to men.
Her effort mirrored Justice Thurgood Marshall’s accomplishments in using the law to address race discrimination. And her work foreshadowed and informed the fight for lesbian, gay, bisexual and transgender equality.
In successfully transforming equal protection law, Justice Ginsburg lived her core belief that law is a tool to promote justice. In her view, when cases are developed appropriately, judges can interpret clauses of the Constitution based on the highest ideals of its framers, even if those framers failed to live up to those ideals.
But equally important to her commitment to equality and the rule of law, Justice Ginsburg was a model in how to befriend and engage those who might not always agree with each other.
Former Chief Justice William Rehnquist was anything but an ideological ally of Ginsburg. But despite disagreements, Justice Ginsburg was very fond of Justice Rehnquist during their time as colleagues and worked to reach common ground, such as when he ended up siding with her in the famous Virginia Military Institute case, where she authored the opinion calling for the admission of women.
Justice Ginsburg’s relationship with Justice Antonin Scalia, known for his strong dissents and biting rhetoric when he disagreed with the majority, was another example of her ability to befriend intellectual adversaries.
She treasured her friendship with Scalia. In this era of division and demonizing those with whom we disagree, Ginsburg always championed dialogue and openness to criticism as a way to generate better outcomes. We can all learn from her example.
Finally, in what is an often-overlooked part of Justice Ginsburg’s legacy, her partnership with her husband, Marty, is an inspiration. Marty often said that the most important thing he ever did was support her. So not only did Justice Ginsburg fight for gender equality, but she also had a partner who modeled it at home, in his career and in his marriage.
This partnership also launched her on the path to the Supreme Court beginning with a case they worked together in the U.S. Court of Appeals for the 10th District in Colorado — Moritz v. Commissioner. In that case, the court ruled that discrimination on the basis of sex constitutes a violation of the Equal Protection Clause — as depicted in the film “On the Basis of Sex.”
Our society today is at risk of a boiling point, where listening, engagement and reflection are pushed out by toxic rhetoric. At issue in Justice Ginsburg’s seat is whether she is succeeded by a jurist who will honor the Supreme Court’s balance and openness to advancing the rule of law as a force for justice or someone who will be part of an effort to roll back decades of progress.
In Judaism, when someone passes away during the night of the Jewish New Year, it is said that she is a righteous person. It is also said, when someone passes, that “may her memory be a blessing.”
Both are so true in the case of Justice Ginsburg. May her memory promote progress toward the healing and renewal our nation so desperately needs.
Phil Weiser is attorney general of Colorado and served as a law clerk for Justice Ruth Bader Ginsburg from 1995-96.
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