Ruth Bader Ginburg

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The right and left are now fighting about who and when the next justice should be confirmed. They are both rapid firing sound bites about Merrick Garland (the Obama nominee during the 2016 election who ended up being replaced by Neil Gorsuch, CO, a Trump nominee) from the opposite side making the opposite argument they are all making now. But no one is facing the fact that the arguments are all irrelevant. The real motivation is to win everything all the time no matter what. There doesn’t seem to be consideration for the future. The only thing they ever want is what’s in front of them at the time. Reason and rhetoric doesn’t matter. Pundits are also discussing the whether or not the next justice

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Shelby County

In a 2013 decision out of the court, Chief Justice John Roberts led a majority invalidating a key provision in the Voting Rights Act that required certain jurisdictions with a history of descrimination to undergo federal oversight before enacting any changes in voting procedure.

Ginsburg penned a fiery dissent in the case, pointing out that Congress passed the latest installment of the Voting Rights Act with “overwhelming bipartisan support,” saying the representatives legitimately exercised their constitutional powers in doing so.

Ruth Bader Ginsburg worked through her fifth bout of cancer to help shape a blockbuster Supreme Court term

“The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective,” Ginsburg wrote.

It is the dissent in the Shelby case that grew Ginsburg’s following in pop culture in recent years — spurring the “Notorious RBG” moniker that morphed into a celebration of the justice’s legal career.

She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Ledbetter v. Goodyear Tire & Rubber Co.

Some of Ginsburg’s most blistering dissents came from cases involving gender discrimination and civil rights — an issue she pioneered throughout her legal career.

In one such case, Lilly Ledbetter sued her employer, Goodyear Tire & Rubber Company, in 1999 for gender discrimination after discovering that over the course of her 19-year career at the company, she had received lower compensation than her male counterparts. She won the case in federal court in 2003 and was awarded $3.8 million in back pay and damages.

The tire giant appealed and the case eventually made its way to the Supreme Court. In 2007, the Supreme Court upheld a reversal of the federal court decision, ruling that because Ledbetter’s claim was made after a 180-day charging period, she could not sue her employer under Title VII of the Civil Rights Act of 1964.

Railing against the all male, 5-4, majority, Ginsburg delivered a scathing dissent from the bench, a rare act by justices intended to demonstrate the strength of their disagreement. She accused the eight male justices of being indifferent to the gender pay gap.

“The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” she said, calling upon Congress to act where the court had not.

In 2018, Ledbetter recalled the role Ginsburg played in her landmark case in 2006, saying the justice’s dissent from the majority gives her chills to this day.

“I get chills and goosebumps today just thinking about it … knowing how fierce she was,” Ledbetter said.

Obamacare’s contraceptive mandate

In one of her more recent dissents, Ginsburg lambasted the court for “(leaving) women workers to fend for themselves,” in a case where the justices struck down the Affordable Care Act’s contraceptive mandate.

In July 2020, the court cleared the way for the Trump administration to expand exemptions for employers who have religious or moral objections to complying with the Affordable Care Act’s contraceptive mandate.

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote in dissent.

“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” she said and noted that the government had acknowledged that the rules would cause thousands of women — “between 70,500 and 126,400 women of childbearing age,” she wrote — to lose coverage.

When the case’s oral arguments were being heard, Ginsburg participated from a hospital bed because of a gall bladder condition. Ginsburg also announced weeks after her dissent in the case that a scan the February before revealed lesions on her liver and she had begun bi-weekly chemotherapy.

Bush v. Gore

In the election of 2000, Florida was the key to presidential victory on both sides of the aisle. The voting process in the state was a mess — with poorly designed ballots and counting irregularities abound. Both George W. Bush and Al Gore both declared victory in the state before election night was over, kicking off one of the most drawn-out election results in the nation’s history.

The election quickly went from a decision steered by vote counts to one steered by the courts.

The bitter court battle first escalated up to Florida’s Supreme Court, where a manual recount of ballots was issued. The order was appealed up to the US Supreme Court, where it was reversed and Florida’s 25 electoral votes, along with the presidency, was handed to Bush.

Though Ginsburg was not on the winning side, she did not go gentle into that good night.

”I might join the chief justice were it my commission to interpret Florida law,” Ginsburg wrote. ”The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree.”

”Were the other members of this court as mindful as they generally are of our system of dual sovereignty,” Justice Ginsburg concluded, ”they would affirm the judgment of the Florida Supreme Court.”

But while colleagues wrote they dissented “respectfully,” as Ginsburg typically does, she said only: “I dissent.”

On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote in Florida, a margin of victory of 1,784 votes.[10] The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated[11] automatic machine recount occurred. On November 10, with the machine recount finished in all but one county, Bush’s margin of victory had decreased to 327.[12]

According to legal analyst Jeffrey Toobin, later analysis showed that a total of 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but “[n]o one from the Gore campaign ever challenged” the notion that the machine recount had been completed.[13] Florida’s election laws[14] allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: VolusiaPalm BeachBroward and Miami-Dade, which are counties that traditionally vote Democratic and would be expected to garner more votes for Gore. Gore did not, however, request any recounts in counties that traditionally vote Republican. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election,[15] and several of the counties conducting manual recounts did not believe they could meet this deadline.

By December 8, 2000, there had been multiple court decisions regarding the presidential election in Florida.[18] On that date the Florida Supreme Court, by a 4–3 vote, ordered a statewide manual recount.[19] On December 9, ruling in response to an emergency request by Bush, the U.S. Supreme Court stayed the recount. The Court also decided to treat Bush’s application for relief as a petition for a writ of certiorarigranted that petition, requested briefing from the parties by 4 pm on December 10 and scheduled oral argument for the morning of December 11.

Although opinions are rarely issued in connection with grants of certiorari (a minimum of four of the nine justices must vote in favor of the grant), Justice Scalia filed an opinion concurring in the Court’s decision, noting that “a brief response is necessary to [Justice Stevens’] dissent”. According to Scalia,

It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether “counting every legally cast vote can constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, “legally cast vote[s].” The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.[20]

Justice Stevens filed a dissenting opinion, in which Justices Souter, Ginsburg and Breyer joined. According to Stevens,

Counting every legally cast vote cannot constitute irreparable harm […] Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.[20]

The four dissenting justices argued that stopping the recount was an “unwise” violation of “three venerable rules of judicial restraint”, namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when “another branch of the Federal Government” has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.

A number of legal scholars have agreed with the dissenters’ argument that Bush failed to carry the “heavy burden” of demonstrating a “likelihood of irreparable harm”. [21]

The subsequent analysis revealed that black-majority precincts had three times as many rejected ballots as white precincts. “For minorities, the ballot survey found, a recount would not have redressed the inequities because most ballots were beyond retrieving. But a recount could have restored the votes of thousands of older voters whose dimpled and double-voted ballots were indecipherable to machines but would have been clear in a ballot-by-ballot review.”[76] The ballot review later conducted by a consortium of news organizations did not have access to these decisive ballots, which in many cases had disappeared and could not be produced.[77]

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