Ruth Bader Ginsburg’s impact on big business challenged political ideology


Ruth Bader Ginsburg received numerous labels during her 27-year stint on the Supreme Court. At first he was called centrist. Then she became the leader of liberal justice, seen by many as a champion of left-wing causes such as abortion rights, gender equality, and environmental regulation in an increasingly right-wing court. Towards the end of her career, she oscillated between feminist icon, meme subject, and beloved documentary star.

Pro-business, however, was not a label usually applied to the end of justice. As a strong advocate for women’s equality in the workplace, she often disagreed with companies that did not want to account for decades of unequal treatment. Again, it was not seen as anti-business either. As a staunch copyright advocate, she has become a trusted vote for companies seeking to protect their intellectual property.

Squaring up this more nuanced portrait of Ginsburg with his status as a famous liberal icon – whose empty seat is likely to start the most heated political fight of election season, if not the Trump presidency – requires some truly extensive work to be analyzed. But a closer look at some key areas where Ginsburg was most influential reveals a jurist who challenged easy ideological categories, especially when it came to business.

“Judges are also human,” Leah Litman, University of Michigan law professor and former clerk of Supreme Court Justice Anthony Kennedy, told Cheddar. “No one is perfect, and trying to determine someone’s legacy at a time when the composition and leadership of the Supreme Court is about to change so dramatically is sort of a daunting task.”

“In general, he was someone who was very attentive to how economic power, in particular, and unequal economic and political power could be a real danger to individuals’ access to civil society. and to important government institutions, ”Litman said.

This prospect was more evident in areas such as arbitration law, she added. Litman reported cases such as Epic Systems Corp. vs. Lewis, in which the court’s conservative majority ruled that companies could require employees to resolve disputes through individual arbitration rather than class actions. Ginsburg’s dissent argued that the imbalance of power between employer and employee necessitates greater protection for workers.

“The courts have always voted with the group of judges who were very skeptical about the ability of companies to impose compulsory arbitration on people who did not have the economic power to negotiate these agreements and would thus lose their right to seek redress before federal courts, ”Litman said.

The fact that Ginsburg’s most critical positions have often taken the form of dissent rather than opinions reflects the conservative makeup of the Roberts Court, and the Supreme Court in general, for at least the past four decades. Republican-appointed judges have held a slim majority over Democratic-appointed judges since the 1960s, when Chief Justice Earl Warren presided over a progressive winning streak.

In recent years, this conservative and pro-business trend has only intensified. The United States Chamber of Commerce, for example, has won 70 percent of the cases it has filed since 2006, according to a study by the Constitutional Accountability Center, a progressive think tank.

“No one should blame a litigant who wins a close case with a strong case on their side,” Elizabeth Wydra, president of the association, said in a statement. “However, business and the House know they can count on the Roberts Court to rule in an overwhelming number of critical cases, whether the law favors them or not.”

Ginsburg was not immune to the changing tides, however. A 2015 High Court ‘Business Favorability’ study found that even liberal justices voted for business more often in Roberts Court than in the previous era. Ginsburg voted for corporations 47 percent of the time after 2005, up from 38 percent during the Rehnquist era, which is still well above former liberal justices such as Earl Warren (25 percent) and Abe Fortas ( 19 percent).

This change is in part the result of more unanimous decisions in favor of business. As the report points out, “when the Roberts Court speaks with one voice, that voice favors business in over 60% of decisions.” But Ginsburg’s relative centrism is also a likely factor.

“It’s a pretty business-friendly court, and she was liberal on it, but that doesn’t mean much,” said Samuel Moyn, professor of jurisprudence at Yale University.

Moyn makes a distinction between Ginsburg’s well-deserved reputation in the struggle for “equality of status” as opposed to “distributive equality”. In other words, he explained, she fought for historically under-represented or excluded groups to have access to the same opportunities as everyone else, but she wasn’t as interested in making it happen. economic equality.

“We live in this interesting time when women and men, thanks to Justice Ginsburg, are treated more fairly,” he said. “But she didn’t show the same concern that in the same period, wealthy women became less equal to the rest of women in terms of class.”

Litman argues that Ginsburg’s ultimate goal was to achieve the latter by securing the former for disadvantaged groups.

“I guess I see these two areas as reflecting the shared premise that historically disadvantaged groups or groups historically excluded from government power and important institutions should have a fair chance,” she said.

One area where Ginsburg has clearly favored corporate interests is copyright law, although this issue is difficult to clearly place in a left-right divide.

“She was widely known as an intellectual property maximalist when she sat in court, meaning that she generally spoke in favor of broad protections for copyright owners,” said said lawyer Aaron Moss of Greenberg Glusker Fields Claman & Machtinger LLP. “Compare that to someone like Justice Breyer, who generally didn’t believe we had to get people to create by extending copyright limits.”

Ginsburg’s opinion in Eldred vs. Ashcroft, for example, held that Congress had the right to extend the term of copyright under the Copyright Extension Act 1998. Breyer’s dissent argued that the law amounted to “perpetual copyright” and could even restrict free speech.

It is unclear where Ginsburg’s commitment to copyright law came from, but it is a prime example of how Supreme Court justices are often more idiosyncratic than political parties that confirm them.

In the case of climate change, for example, Ginsburg supported giving the government broad powers to regulate energy companies, and she was central to setting legal precedents in the body of case law. still relatively limited on climate change.

“[Ginsburg] author of the Friends of the Earth c. Laidlaw Environmental Services, which is arguably the most important case of the last quarter century, perhaps 40 years, establishing the rights of people to go to court to protect themselves and the environment from illegal pollution when the government abdicates its duty to do so, “said Michael Wall, director of litigation at the Natural Resources Defense Council.

Litman said the commitments reflect a core belief in the power of government to solve the country’s problems.

“She believed in the ability and power of expert agencies to solve the problems our country faces, like climate change or salary theft or whatever,” she said. “He was someone who believed that government institutions should be able to use their power to solve common problems and rectify disparities in economic or political power.”


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