Academic journal article Albany Law Review

#Jointhedissent: Ruth Bader Ginsburg and the Hobby Lobby Effect

Academic journal article Albany Law Review

#Jointhedissent: Ruth Bader Ginsburg and the Hobby Lobby Effect

Article excerpt

"I don't see that my majority opinions are going to be undone I do hope that some of my dissents will one day be the law." (1)

I. INTRODUCTION

It is just after ten o'clock in the morning on June 30, 2014, and the unofficial Supreme Court of the United States Blog (SCOTUSblog) has logged over forty thousand readers on the website's interactive live blog of Supreme Court decisions. (2) It is the last day of the Court's June Term, (3) and readers and commentators alike are awaiting the opinion on the final and perhaps most controversial and anticipated decision left on the Court's docket: Burwell u. Hobby Lobby Stores, Inc. (4) The decision, that closely-held corporations cannot be required to provide contraception coverage to their employees, (5) was finally handed down at 10:17 a.m., and just eight minutes later, as the blog commentators summarized the key elements of the opinion, the SCOTUSblog website views skyrocketed to over sixty thousand. (6) The decision, described by the commentators as a "monster" of an opinion, included a forty-nine page majority opinion by Justice Samuel Alito, and a colossal thirty-five page dissent by Justice Ruth Bader Ginsburg. (7) The announcement of Ginsburg's dissent was then followed by what is still seemingly rare in Supreme Court jurisprudence: her oral dissent from the bench. (8) Within minutes Justice Ginsburg became an internet icon for women's autonomy; (9) her dissenting opinion becoming the "symbolic battle cr[y] in a larger culture war over contraception, women's bodies, and sexual freedom, rather than a carefully crafted argument in an intensely complicated legal case." (10)

The Court's October 2013 Term saw unprecedented unanimity, with sixty-five percent of the orally argued cases resulting in a unanimous decision, a record high since 1953. (11) However, this current makeup of the Court sits decisively divided along party lines, and even in unanimously decided cases, the "familiar lines of division" can be seen. (12) No different is the Hobby Lobby opinion; Ginsburg was joined in her dissent, at least in part, by the notoriously liberal wing of the Court--Justices Breyer, Sotomayor and Kagan. (13) Similarly, Justice Ginsburg's position did not surprise legal scholars. Since her appointment to the Court in 1993, Justice Ginsburg's jurisprudence has been grounded in the assurance of opportunity and equality, with a focus specifically on gender equality and women's rights. (14)

This note will consider three interwoven themes: the jurisprudence of Justice Ruth Bader Ginsburg, the role of the dissenting opinion, and the role of women's autonomy in their own bodies as seen through the lens of two specific Supreme Court opinions. Viewed in the lens of Justice Ginsburg's jurisprudence, her dissenting opinions--most specifically Gonzales v. Carhart (15) and the abovementioned Burwell v. Hobby Lobby Stores, Inc.--act as a vehicle in which the Justice's beliefs and principles in regard to both women's autonomy and equality are furthered. Though resting upon many of the same foundational principles as Gonzales, the Hobby Lobby decision came during the "perfect storm"--a time in which feminist ideals were thrust to the forefront of American ideology--thereby enabling the dissenting opinion, and Ginsburg's beliefs as a whole, to have a greater impact on the majority opinions of the future. Part II will discuss Justice Ginsburg's jurisprudence that has developed in her twenty-one years on the Supreme Court. It will first provide a brief overview of the road Justice Ginsburg paved on her way to the Supreme Court, and explore the reputation she has made for herself thus far on the bench. Particular attention will be paid to the events and milestones in Ginsburg's life that prefaced her appointment to the Supreme Court and shaped the realm of her jurisprudence. This part will also discuss Justice Ginsburg's own words on the power of the dissenting opinion, as well as explore her statistics in both dissenting opinions, and reading those opinions from the bench. …

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