If the Democrats lose control of the Senate in November, there will be expressions of despair: Doesn’t she know that she could die at any minute? Why isn’t it her priority to make sure the Court house is tidy before she leaves? Ginsburg’s dissent, to Weisberg, is a strong one:
“Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.”
[When I was at the ACLU, w]e had clear targets. That is, we wanted to get rid of every explicitly gender-based law, and the statute books were riddled with them, federal and state. Now discrimination is more subtle. It’s more unconscious. I think unconscious bias is one of the hardest things to get at.
For more than a decade, Ginsburg has worked with a trainer in the Supreme Court’s small ground-level exercise room. Recently, Breyer used a machine that Ginsburg had been using; she set it at six, while he could handle only five. Kagan uses the same trainer as Ginsburg, and when the younger Justice struggles with fifteen-pound curls the trainer says, ‘C’mon! Justice Ginsburg can do that easily!’
Once [gay] people began to say who they were, you found that it was your next-door neighbor or it could be your child, and we found people we admired,” she said. “That understanding still doesn’t exist with race; you still have separation of neighborhoods, where the races are not mixed. It’s the familiarity with people who are gay that still doesn’t exist for race and will remain that way for a long time as long as where we live remains divided.
When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.
In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.
But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality.