Ruth Bader Ginsburg: Male Justices Don’t Understand What Hobby Lobby Meant For Women

BY NICOLE FLATOW/Think progress

When the U.S. Supreme Court ruled that businesses get to decide whether their female employees should have access to contraception, five conservative mendisagreed with three women and Justice Stephen G. Breyer. This gender split could have been incidental, since the three women on the court were appointed by Democratic presidents. But it also signifies a deeper misunderstanding about the experience of women, U.S. Supreme Court Justice Ruth Bader Ginsburg told Yahoo News’ Katie Couric in an interview this week.

“Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied. “But the justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”

“Contraceptive protection is something every woman must have access to, to control her own destiny,” Ginsburg told Couric. The decision allowing an employer to refuse to cover those contraceptives “meant that women would have of that for themselves.”

She analogized the “blind spot” the justices had in this case to that in the 2007 ruling against plaintiff Lilly Ledbetter, a woman whose fair pay lawsuit was rejected by the court. She has framed on her wall the Lilly Ledbetter Fair Pay Act, passed by Congress two years later to correct the Supreme Court ruling in which she dissented. It was the first piece of legislation signed by President Barack Obama.

Ginsburg said the passage of the law is one of her proudest achievements, because in her dissent to that case, “I said the ball is now in Congress’ court to correct the error into which the court has fallen. And Congress did it in record time.”

Lawmakers have already proposed the “Not My Bosses’ Business Act” since the Supreme Court’s Hobby Lobby decision in June. But Republicans in the Senateblocked the bill from moving forward.

In her interview with Couric, Ginsburg praised the U.S. tradition of dissents, noting that “many of those dissents are now unquestionably the law of the land,” pointing to Justice John M. Harlan’s dissent to the separate but equal ruling in Plessy v. Ferguson.

In her 35-page dissent in Burwell v. Hobby Lobby, Ginsburg lambasted the majority for asserting that employers have religious rights that trump those of employees.

“I certainly respect the belief of the Hobby Lobby owners,” Ginsburg told Couric. “On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I had never seen the free exercise of religion clause interpreted in such a way.”

She explained how the law is supposed to work with an analogy she used in her dissent: A person has freedom to move his or her arms until it “hits the other fellow’s nose.” “It’s the same way with speech. Same way with religion. You can exercise your right freely until the point where it is affecting other people who don’t share your views.”

On the male justices’ future evolution, Ginsburg said she believes that “daughters can change the perception of their fathers.” She also believes that progress wins out over the course of history. Asked about the landmark Citizens United ruling that struck down limits on corporate political spending, Ginsburg said she believes her dissent in that case will also one day be the law of the land.

“That is my expectation,” she said. “I may not be around to see it but it will happen.”

Above the framed copy of the Lilly Ledbetter Fair Pay Act in her chambers, Ginsburg has a photograph of the signing of the act, given to her by President Obama with a personal message. “Happy birthday,” he wrote, “and thanks for helping to create a more equal and just society.”

Pawlenty Promises To Appoint ‘Conservative Justices’ Who Will Ignore The 14th Amendment

By Ian Millhiser

The Constitution guarantees that all persons born in the United States are U.S. citizens withonly a handful of very rare exceptions. Nevertheless, in last night’s GOP candidate’s debate, former Minnesota Gov. Tim Pawlenty criticized the Supreme Court for following the Constitution’s unambiguous language and promised to appoint justices who would strip many Americans of their citizenship:

This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution. I’m the only one up here — I believe I’m the only one up here — whose appointed solidly, reliably conservative appointees to the court.

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Pawlenty would do well to actually pick up a copy of the Constitution before he pretends to know what it says. Under the 14th Amendment, “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language is unambiguous; it grants citizenship to all persons born in the US unless they are not subject to American “jurisdiction” — a very narrow exception that applies only to children of foreign diplomats and a handful of other people.

Moreover, the first Supreme Court decision recognizing birthright citizenship was hardly the product of excessive liberalism. The Court first acknowledged this right in an 1898 decision called U.S. v Wong Kim Ark. Three of the justices who joined the majority in Wong Kim Ark also voted with the majority in Lochner v. New York, an infamous Supreme Court decision holding that essential laws protecting workers from exploitation violate the Constitution. Five of the justices in the majority in Wong Kim Ark also voted to uphold Jim Crow in Plessy v Ferguson. So when Pawlenty promises to appoint justices who are more conservative than the ones in Wong Kim Ark, he is essentially calling for a Supreme Court that will immunize sweatshops from the law and uphold segregation.

Sadly, Pawlenty was not the only person on the stage to come out against the 14th Amendment to the Constitution. When asked whether he thinks the children of undocumented immigrants “should be considered a citizen of the United States,” former pizza executive Herman Cain replied, “I don’t believe so.”

Will: What conservatives truly want are activist judges.

By Pat Garofalo

Last week, Justice John Paul Stevens announced that he will retire from the Supreme Court at the end of the current term, giving President Obama his second Supreme Court vacancy to fill. Today, Sen. Jeff Sessions (R-AL) urged Obama not to select “someone that is so activist,” while Sen. Lamar Alexander (R-TN) said that Republicans could filibuster “if the president picks someone from the fringe or somone who applies their feelings instead of applying the law.” On ABC’s This Week, conservative columnist George Will criticized conservatives for saying that they want judges who will strictly follow the law while simultaneously cheering decisions that overturn the work of elected officials:

There’s another test, and it’s wielded by my conservatives, and I think it’s mistaken. And that is, they say they’re against judicial activism. By which they mean they want the court to defer to the elected political branches of government. But if you look at what’s happened recently, the decision that most outraged conservatives was the Kelo decision on eminent domain. … The court did defer to the city government in Connecticut and it enraged conservatives. The recent decision that most pleased conservatives — Citizens United, overturning part of McCain-Feingold — was the court not deferring to the Senate.

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Cokie Roberts noted, “that’s very relevant right now, because you have these 14 states’ attorneys general, saying that they want to overturn, the court to overturn the recently passed health care law.”