Yesterday was a tumultuous day for politically-minded Americans. First came the shocking announcement of the sudden death of Supreme Court Justice Antonin Scalia. And then within a few hours of that news, we were confronted with another debate among Republican candidates for the presidency. The debate participants paid a short tribute to Justice Scalia, but soon moved on to rancorous disagreement. For many viewers the level of insults and name-calling made the debate unwatchable after the first hour or so. Surely this is not the way a democracy should elect its leaders. There must be a better model for giving opinions and navigating different ideas. Perhaps we can get some clues from the Supreme Court.
Justice Scalia has been one of the most important and well-known members of the
Supreme Court, a man who was well-known not only to the legal profession, but also to the general public. Unlike many earlier justices, Scalia was not afraid to make his opinions known both inside and outside of the Court. He was an active and energetic participant in the Court activities and in his private life right up until the day before he died in his sleep while on a hunting trip in Texas. His bereaved family must still be struggling to accept the fact of his loss, and the our usual news commentators and reporters have been scrambling to write appropriate statements about his life and achievements.
Justice Scalia was an outspoken supporter of the concept of originalism—the belief that the United States Constitution meant what the men who signed it thought it meant at the time. He claimed that neither he nor other judges should interpret the Constitution so that it meets modern questions and needs. The Constitution he told a Southern Methodist University crowd in 2013 is “not a living document. It’s dead, dead, dead.”
Many observers have suggested that Scalia might claim to honor the beliefs of the authors of the Constitution but that in fact many of his opinions changed accepted interpretations of the Constitution in a very activist way. The most notorious example was his support of changing the interpretation of the Second Amendment’s statement on the right to bear arms to enlarge its scope to include individual citizens as well as militias, which had been the standard interpretations for a hundred years.
Justice Scalia was genial and well-liked. He enjoyed the controversies he inspired. As he once pointed out to an interviewer from the New York Times, “I love to argue. I’ve always loved to argue. And I love to point out the weaknesses of the opposing arguments. It may well be that I’m something of a shin kicker. It may well be that I’m something of a contrarian.”
Meanwhile, at the other end of the ideological spectrum on the Court is Justice Ruth Bader Ginsburg, who has been a strong voice for examining the ways in which the Constitution can meet the challenges of modern times. Before she was appointed to the Supreme Court, she proved herself a brilliant lawyer and a staunch advocate of the rights of women and of all citizens to equal treatment before the law. Unlike Justice Scalia, she does not believe that the Constitution is an unchanging text set in stone, but rather a document written by
humane leaders setting forth the basic principles of democratic government. As the world and society changes, Justice Ginsburg believes that interpretations of the Constitution should not be bound by the 18th century meaning of words but rather by the deepest values of our ever-changing population. Perhaps it is almost inevitable that women would tend to take this view because it is difficult to believe that the Founding Fathers gave much thought to the rights of women of their time, much less to the challenges that women face in the 21st century.
Antonin Scalia and Ruth Bader Ginsburg—two very different people with opposing ideas and yet they were never known to call each other names or to question the motives of their opponents. In fact, over the years, they became friends, visiting one another’s homes and families as well as attending operas together. Both of them had close, happy family lives and seemed able to enjoy social events even while they disagreed on many issues in their shared work life. Wouldn’t it be wonderful if more of our public servants and politicians could handle their differences as well as they did?
So on this Valentine’s Day, let’s offer a Valentine wish to two colleagues who liked one another and who worked together for many years in a spirit of friendship that I am sure St. Valentine himself would approve. And let their lives be examples for all of us today—candidates, voters, and all Americans.
The Supreme Court’s decision in the Hobby Lobby case has started a lot of people thinking about how access to contraception has changed women’s lives. The Hobby Lobby decision allows some companies to refuse to pay for all forms of contraceptive care for their employees. If all of the owners of a “closely held corporation” declare that they do not approve of some forms of contraception on religious grounds, then they don’t have to pay for insurance coverage for contraception. The talk about this decision and how it may affect healthcare for all Americans has started a lot of people thinking about the struggle to get any form of contraception approved.
When Margaret Sanger (1879-1966) started working as a nurse in New York City, she saw a number of women who were suffering from their inability to keep from becoming pregnant over and over again. Doctors were not allowed to tell women how to avoid unwanted pregnancies; so many families were doomed to poverty and poor health because they could not afford large families. With contraceptives declared illegal and therefore unavailable to any except the wealthy, many poorer women resorted to abortionists or tried to abort a fetus themselves. When Margaret Sanger, who had seen her own mother die at 48 worn out by twelve pregnancies and weakened by tuberculosis, realized how many women were sacrificed because of their inability to control births, she determined to devote her life to changing the law.
By starting a newsletter, lecturing, and then opening the first birth control clinic in America, Sanger tried to introduce contraception to women. Both she and her sister were arrested at their Brooklyn clinic and charged with distributing obscene literature—information about birth control. Margaret Sanger served a short jail term for the crime, but she received a great deal of publicity and the issue was brought before the public.
It is hard today to remember how the lack of birth control affected women’s lives during the years when it was forbidden. Employers discriminated against married women, refusing to hire them because they might become pregnant at any time. Graduate schools refused to admit married women students with the excuse that their education was wasted because an unplanned pregnancy could derail a degree at any time.
Margaret Sanger fought for many years to make contraception available in the United States. It was a long struggle. By 1965 when the Supreme Court finally decided in the case of Griswold v. Connecticut that contraception should be available, Sanger was 85 years old. A year later she died.
Some of Margaret Sanger’s legacy was unfortunate. She believed in eugenics and favored larger families for well-educated, middle class families. The poor and especially nonwhite people, she believed, should strictly limit their family size. Many of the statements she made during her later years were repugnant, and they have been seized upon by conservative politicians to blacken her reputation. But the major battle she fought—to enable women to have some control over their bodies and the size of their families—was an important one. Much of the freedom enjoyed by women today has come about because of the struggle of Margaret Sanger and her associates.
Today, on the Fourth of July, when we celebrate the legacy of our Founding Fathers—a legacy deeply tarnished by the racism and prejudices of their ideas—is surely a good time to assert again that we can celebrate the achievements of many individuals despite their flaws and mistakes. None of our heroes or heroines were perfect, but we can accept the good that they did at the same time that we cast aside the bad.
The Supreme Court is much like our individual heroes. Some of their decisions have contributed decisively to Americans’ welfare and freedom; others have needed to be modified as time revealed their flaws. As for the Hobby Lobby decision, it seems quite likely that the best that can come from it may be the movement toward having single payer healthcare in the United States so that the health and happiness of Americans depend on themselves, through their elected government, and they are freed from the idiosyncratic and sometimes irrational beliefs of their employers.
Twenty years ago this month Ruth Bader Ginsburg became a Supreme Court justice and ever since then she has been making history. Her opinions, whether in agreement or dissent on a wide range of cases have kept the Court on an even balance over the years.
Media pundits have been talking and writing about Ginsburg’s legacy and they often seem surprised that at the age of 80 she is still going strong in her demanding job. But there is one factor that no one has mentioned so far that might have improved her vitality and her long-lived success. She went to Cornell University, graduating in 1954, not too far off from the year I graduated from Cornell. In those days men far outnumbered women at the university, and one of the popular folk beliefs among the men was that coeds lost their good looks because they had to climb the hills of Ithaca to go to classes. It was said that our legs became too muscular and we looked more like athletes than “real women”. Well, Ruth Bader Ginsburg, and all of the women of our generation who are still alive and participating in the world, were probably strengthened by all that walking on those snowy hills. Justice Ginsburg regularly goes to the gym and is reputed to be strong and fit. Perhaps the world owes a vote of thanks to the good start she got on the hills of Ithaca.
Of course physical vitality is only a tiny part of Justice Ginsburg’s many extraordinary attributes. She proved herself a brilliant lawyer and a staunch advocate of the rights of women and of all citizens to equal treatment before the law. Unlike some justices, she does not believe that the Constitution is an unchanging text set in stone, but rather a document written by humane leaders setting forth the basic principles of democratic government. As the world and society changes, Justice Ginsburg’s view of the Constitution is not bound by the 18th century meaning of words but rather by the deepest values of our ever-changing population.
Let’s all wish Justice Ginsburg a happy anniversary of service and hope that she continues to add her valuable voice to the Supreme Court for many more years!