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In Memoriam: Justice Ruth Bader Ginsburg

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LONDON, September 21, 2020 – Baker Botts offers its deepest condolences to the family of Justice Ruth Bader Ginsburg, her colleagues throughout the Judiciary, and all who knew and loved her.  Precise and deliberate with her words, Justice Ginsburg will forever remain one of our nation’s most powerful and enduring voices for equality, justice and human decency.

The power of her voice came from more than very long days and personal sacrifice.  It came from the intellectual honesty to recognize and truthfully answer — rather than to ignore or vilify — opposing viewpoints.

In the 1970s, then-Mrs. Ginsburg was an advocate facing an all-male Supreme Court that did not readily understand why laws seemingly favorable to women — giving women benefits unavailable to men — offended the U.S. Constitution.  Recognizing the undoubtedly chivalrous intentions of her audience, Justice Ginsburg selected test cases to show how, for example, laws providing better survivorship benefits to surviving wives than surviving husbands harmed women by perpetuating the man’s role as the family’s principal bread-winner.  In her own magical words, such laws put women “not on a pedestal, but in a cage.”

As a member of the Supreme Court, Justice Ginsburg reminded us that despite the very different jurisprudential and political views of the individual Justices, the Court and the wider judiciary achieve better because they are a collegial body.  She had famously counted Justice Scalia among her closest friends, despite their being ideologically polar opposites on many issues.  Those fundamental philosophical differences made them both better judges.  As Justice Ginsburg publicly said, Justice Scalia’s strong doctrinal disagreement with her views in United States v. Virginia, the “VMI case”, gave her the added insights to strengthen her powerful decision for the majority.

Even in dissent, Justice Ginsburg was guided by our ‘better angels,’ revealing the errors she saw in her colleagues’ decisions with wisdom and grace.  Her disagreement with the majority in Shelby County v. Holder — which declared the preclearance provisions of the 1965 Voting Rights Act no longer constitutional because they had done their job of ending a history of racially discriminatory state and local voting procedures — contains one of her many thought-provoking metaphors:  “Throwing 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.”

For me, as one of her many former law clerks, Justice Ginsburg was a teacher and a model of unchecked excellence who worked late into the night, seemingly every night, to always try to get it ‘right.’  All of her law clerks’ children were her “grand-clerks” and her smile lit up, even decades later, when any of them visited.

Justice Ginsburg paved the way for all of our daughters to have a seat at the table, and for all of our sons to benefit from the perspective that comes from seeing the world through their different lenses. May we all have the Justice’s wisdom to listen intently, to learn from those with whom we disagree and to be better for the effort.

—By Jay Alexander, Law Clerk, 1986-87

 

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