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With the horrific prospect of a second Trump appointment to the Supreme Court, it seems likely that my all time favorite Supreme, Ruth Bader Ginsburg, will be writing Dissent opinions more frequently than ever and reading the most important ones from the bench.
She's not the only "Great Dissenter" in Court history, but she's certainly the current one. She has said that Dissent opinions are "written for the future" , "appealing to the intelligence of a future day", and lay the ground-work for future Majority opinions. Court history shows that this has happened before on great issues. Sometimes one voice, Dissent from an 8 to 1 opinion has become the root of a later Majority that fulfils the Constitution's highest calling, that of protecting individual rights and reforming popular wrongs, protecting minorities against majorities.
to play the music , click the play button below (you may need to adjust the sound level downwards with the sound button) :
Or click the link great_pretender.mid to open in a new window. This will probably play automatically, so don't do it if you are at the library or study hall.
The Great Dissenter
by Pam Green , © July 2018
to tune of "The Great Pretender"
Oh o-oh yes, I'm the Great Dissenter,
When five of The Nine get it wrong.
I write for the future and History
Will see I've been right all along.
Let divas give voice to my song !
Ohhwn sex, I'm the Great Dissenter,
Notorious , strident, and strong :
"Equal Protection" means "strict scrutiny"
To see gender bias as wrong.
Let divas give voice to my song !
So real was that feeling of welcome joys,
So true when new colleagues were not born as boys !
With Sonya , Elena to make their views known ,
I'm so glad I'm no longer alone.
Oh o-oh yes, I'm the Great Dissenter
When six of The Nine get it wrong.
I write for the future of equality,
Pray Goddess it won't take too long !
Let divas give voice to my song !
Too real was that feeling of disbelief,
Too real was that feeling of shock and grief
In nineteen sixteen the events were obscene
And left me to be Dissent's Queen.
I would still be the Great Dissenter
If eight of The Nine got it wrong.
My essential dissents that I've read from the Bench
Will be there long after I'm gone,
To become law long after I'm gone.
Let divas keep singing my song !
I might not be Dissenting as often
If more of The Nine weren't XYs.
No one expressed fears for that hundred plus years
When all of The Nine were Old Guys.
Nine women would be just as wise,
Much wiser would be no surprise !
Let divas sing out, harmonize.
- RBG has said that dissents are "written for the future". Great dissents have a way of inspiring majority rulings at a later date. This has certainly been true for other Great Dissenters. (For example the dissent in Plessy v Fergesson became the basis for Brown v Board of Education)..
- Probably the all time greatest dissent was that of Justice Benjamin Curtis to the infamous Dred Scott decision. RBG describes this and other great dissents in her lecture "The Role of Dissenting Opinions".
- When the Court seems split 5 to 4, those writing dissent opinions are tempted to write more mildly in hopes of bringing over one of the 5, thus becoming a majority. When the split is 6 to 3 or worse, there is less reason for the dissent writer to pull any of her punches. The dissent can be as strong as she wishes. But she's still writing to pursuade the future Court and to pursuade society, "appealing to the intelligence of a future day". Sometimes , as in Ledbetter, she's shouting out to Congress to redress the wrong that the majority have allowed. Congress acted by passing the Ledbetter Fair Pay Act. Likewise her dissents in some of the cases where discrimination against pregnancy was ruled to be not really sex discrimination paved the way to the PregnancyDiscrimination Act, which Ruth helped to write.
- As things stand in mid-2018, with Obama's third appointment stolen and given to a far right conservative and with Kennedy (not much of a friend to women) about to be replaced with someone worse, it's likely that there will be a lot of 6 to 3 splits on many issues. Splits of 8 to 1 are unlikely, but that would be even more reason for RBG to speak out unequivocally.
- I don't think I need to explain "notorious", as she's been "the Notorious RBG" for quite some time now. "Strident" is the word hurled at any woman who is assertively spoken.
- Equal Protection of the laws is the 14th Amendment promise to all persons. The standard for judging laws that discriminat on race has long been "strict scrutiny", meaning that the law must serve a "compelling state interest" and that the law must be "as narrowly drawn as possible" to serve that interest . RBG has argued, both as attorney and as Justice, that the standard for laws that discriminate on sex or gender should be "strict scrutiny", but she's never quite gotten a majority to agree. She has however gotten many decisions that the standard is some form of heightened scrutiny, that the law must serve "a very important purpose" and be "very well related" to serving that purpose. This is better than the standard of mere "rationality" that applies to most laws and that very very rarely causes a law to be found invalid. .
- After the retirement of Justice Sandra Day O'Connor, RBG was asked how it felt to be the only woman on the Court. She replied "lonely".
- When asked how many women on the Supreme Court would be a good number, RBG answered "nine". She followed by commenting that no one seemed to see anything wrong when all Nine were men. So why not nine women. I have added reference to Sonya Sotomayor's suggestion that a wise old (Latina) woman might make a better judgement than a wise old man. RBG has added that of course one brings one's life experince to one's judgements. So a woman or other person who has experienced class based discrimination brings a heightened awareness of those issues.
- (For those who never took a Biology class, in all mammals , including humans, males are chromosomally XY and females XX.)
- She has said that if she could have any talent she wanted, she would be a diva, a great opera singer. Her passion for opera and tendency to quote from operas is well known. (I don't know if she has ever contemplated that divas retire long before age 80, and that she would be totally unhappy if she were retired.) If Buddists, Hindus, or Pythagoreans are right, she will come back as a diva, a very great diva --- then perhaps run for and be elected POTUS when her singing days are over ?
Ruth passed away 9/18/2020
If it was after sunset, she passed away on Rosh Hashona, which in Jewish tradition means she was a person of great rightousness. ( Yeah, like we needed a sign that she was that !)
There are no words to describe the grief of all who understood and valued her work. She changed the world for the better. There will never be another like her. She was Supremest of the Supremes.
There's no need for another verse for the song. Her Opinions, both writing with the majority and writing in dissent, "will be here long after she's gone" and will be embraced by "the wisdom of some future day".
Dearest Ruth, if there is an Afterlife you are now with your beloved mother , father, and husband Marty, probably enjoying a meal that Marty cooked. Maybe Scalia will be a guest that first night. Then you will all go to attend a special performance of the Scalia-Ginsberg opera, with your favorite diva in your role, your favorite tenor in Scalia's role.
If instead there is Reincarnation, you will come back as an opera diva, but when you retire from that, I hope you go to law school and eventually return to the Court.
Know that there are many who would have given their lives to give you an extra year. I am one of them. There's an opera based on Euripedes's Alcestis. actually one by Christoph Willibard Gluck and another by Jean-Baptiste Lully. Pick your favorite, but know that many of us would gladly be Alcestis for you.
But we know that you are not really silenced. We know that your words will speak loudly and convincingly to the wisdom of a future day.
Perhaps it's too bad I am a life-long atheist. I'd like to be able to picture Ruth sitting on the left hand of God (who may be lefr-handed as Ruth is), always prepared to give Her advice and to dissent clearly and cogently whenever She is about to make a mistake in ruling.
further reading (and listening and viewing):
- There are so very many books about RBG, but the best place to start is probably "My Own Words" by Ruth Bader Ginsburg, available as a book, e-book, and CD and as an audio-book CD (set of 10 CDs). I've loaded the audio CDs into iTunes and listened to all of them over a period of time. (It's about 13 hour of listening, so a bit much for a single session.) Includes archival recordings of some of her lectures. Plus a wonderful speech by her husband Marty. (and I've also purchased the book, read and re-read, annotated, and so on.)
- "The Notorious RBG" is the authorized biography, and is also available in a children's edition. There are many other biographies and commentaries. I am reading this (adult version) now. The public library copy has been so much read that the spine has failed and pages are falling out.. This book includes some material I hadn't previously seen. I reccommend this book highly.
- "Ruth Bader Ginsberg, a Life" by Jane Sherron De Hart, is another authorized biography, quite comprehensive and going up to a couple of years before her death. It's become a national best seller. I've read it and recommend it.
- "Sisters in Law" analyzes the careers , especially as Supreme Court Justices, of Sandra Day O'Connor and Ruth Bader Ginsburg. In my opinion it shows O'Connor to have been at best a fickle friend of women's interests and the promulgator of serious harm on abortion issues by creating the "undue burden" standard.. RBG has been consistantly strivng a step at a time towards complete gender equality in all regards, including the essential role of reproductive self-determination as essential to equality. I've read this and highly recommend it.
- "I Dissent" is a children's book describing RBG's career as an independent thinker from childhood on. Wonderful illustrations too. I reccomend this highly for every child. Adults will enjoy it too,
- The "RBG Movie" is a great introduction to her life and influence. This film is composed of footage of RBG and the key players in her story, including several of her ACLU clients and her two children. I 've seen this and I highly recommend this film to all audiences, though it would go "over the heads" of younger children.
- There's a new CD. "Notorious RBG in Song" (Cedille), released this month (mid 2019), is an album of songs written for and about Ginsburg. Its centerpiece is a nine-part song cycle called "The Long View," which amounts to a biography in music. (I have not heard this albulm yet.)
- and now there is the movie "On The Basis of Sex", a somewhat romanticised and fictionalized story of RGB's studies at Harvard Law and the Moritz case, which she co-tried with husband Marty. It's a law story and a love story. A great date movie : emulate Marty by taking your date home after the movie for a tasty meal that you cooked yourself.
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Related topics :
- MISCELLANEOUS in the Serious section has many issues on which RBG has spoken. Serious topics are near the end of this page, but there's a link to them near the top of the page.
- Talking Dog joke, revised to honor Ruth Bader Ginsburg
- Rob-ye Lobby , a satire on the Supreme Court "Hobby Lobby" decision and its potential implications. My satire merely takes the logic of Ruth Bader Ginsburg's dissent in Hobby Lobby just a little bit further.
- The Grape Defemder, which RBG might enjoy since she sometimes wants to attend boring events, such as State of the Union, "not completely sober". (Of course I don't know if wine is her preferred means of attaining that state.)