In Remembrance: Ruth Bader Ginsberg

 

This kind of topic is not my usual cup of tea.

An NPR broadcast this afternoon described one of  RBG's major influences on American law and society. NPR's Radiolab program this afternoon described her push against the all male supreme court that led them to reconsider how they treated laws that affected the sexes differently. Her argument in the supreme court led to the court's development of the intermediate scrutiny test for laws that treat the sexes unequal.

This story describes how the young ACLU lawyer Ginsburg convinced an all-male Supreme Court to take discrimination against women seriously. Before this case, the constitution was silent about discrimination against women and it allowed and justified in prior supreme court cases. She shrewdly chose a case about discrimination against men to argue that discrimination against men was no better than discrimination against women. 

That led the court to conclude that discrimination on the basis of gender, a term she intentionally chose instead of the loaded term "sex" to defuse emotions. Her tactic led to a new test of constitutionality the court created and named "intermediate scrutiny." Her tactic was brilliant, rational and convincing to the 1970s all male court. It still generally applies today.

For context, there are three tests for the constitutionality of any law. The rational basis test, the intermediate scrutiny test that Ginsberg provoked, and the strict scrutiny test. Two questions are embedded in each test, what is the purpose of the law, and how closely is the law related to that purpose?

Rational scrutiny is basically no scrutiny

The rational basis test is basically no test at all. All a law needs to do is be somehow, even trivially, rationally related to what the law is intended to do. When the authority that creates a law cannot think of any rational reason for a constitutionally challenged law, the court steps in and make a reason up to find the law rational. Very, very few laws are found unconstitutional on the basis of the rational basis test. Blithering idiots can make laws that pass this level of court scrutiny.

Strict scrutiny is almost impossibly difficult

On the other hand, when the supreme court examines a federal, state or local law that impinges on one of the live wires, e.g., race or national origin, the court applies strict scrutiny. Under that test, most laws are declared unconstitutional and invalidated. Such laws deal with affirmative action and related issues. To meet this test of constitutionality, a legislature must have passed the law to further a "compelling governmental interest," and it must be "narrowly tailored" to achieve that interest.

Courts usually can and do easily think of ways to make a law narrower and thus blow it to bits. This reflects the usual incompetence of local, state and federal legislatures to write coherent laws.

Despite its ostensible strict rationality, strict scrutiny has lead to some utterly irrational decisions. The most commonly cited disaster is the infamous Korematsu v. United States decision (1944), where the court upheld the forced relocation of Japanese Americans in internment camps during World War II.

The Ginsberg-inspired intermediate scrutiny test

Intermediate scrutiny applies a different test for the government. Here the government must prove that the law serves an important purpose and there is a "substantial relationship" between the law and the purpose the law is intended to deal with. The "narrowly tailored" requirement is relaxed a bit and that allows generally more laws to be found constitutional.

Craig v. Boren, 429 U.S. 190 (1976) was the first case where the United States Supreme Court held that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review. That was directly due to Ginsberg's influence on the court. Before Ginsberg, blatant and irrational discrimination against women was legal because the constitution was mostly silent about women's rights. That was because the Founders believed that women were fundamentally different from men and needed to be "protected." That protection translated into two centuries of rationally unjustified and unwarranted discrimination.

Since the Equal Rights Amendment has failed since the 1970s, Ginsberg's influence is what mostly fills the legal void in protection for women in the US.

Since the intermediate scrutiny test, like rational basis and strict scrutiny, are judge-made laws, the Supreme Court can get rid of one, two or all of them when a five judge majority wants to do that.

Conclusion: Ginsberg was brilliant. She served the real (not partisan) public interest as best she could. She will be sorely missed.