We Mourn the Loss of Justice Ruth Bader Ginsburg, the Notorious RBG

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In one of Justice Ginsburg’s most famous cases, United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court of the United States rejected Virginia’s argument that the Virginia Military Institute (VMI) could not achieve its goal of training citizen-soldiers if it were forced to admit women as well as men. 

Virginia argued that VMI’s signature “adversative” approach to education was uniquely suited to men and that a “collaborative” approach to education would be better suited to women. Here is how the Court described VMI’s system:

VMI produces its "citizen-soldiers" through "an adversative, or doubting, model of education" which features "physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values." As one Commandant of Cadets described it, the adversative method "dissects the young student," and makes him aware of his "limits and capabilities," so that he knows "how far he can go with his anger, ... how much he can take under stress, ... exactly what he can do when he is physically exhausted." 
VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, "an extreme form of the adversative model," comparable in intensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors. 
VMI's "adversative model" is further characterized by a hierarchical "class system" of privileges and responsibilities, a "dyke system" for assigning a senior class mentor to each entering class "rat," and a stringently enforced "honor code," which prescribes that a cadet "does not lie, cheat, steal nor tolerate those who do."

Instead of admitting women to VMI, Virginia proposed creating a parallel institution that would train women using a collaborative approach that it argued would be more effective for them. But, crucially, Virginia admitted that while most women — and, indeed, most men — would not seek out or flourish under VMI’s system, there were some women who both sought that kind of education and were “capable of all the individual activities required of VMI cadets.”

The case presented, then, this question: If a woman chooses to go through, and is capable of going through, the adversative system used by VMI to train citizen-soldiers, may Virginia nonetheless deny that woman admission on the ground that other women, even most women, would not choose to be educated in this way? Can a generalization about women justify the exclusion of a woman for whom the generalization is admittedly false?  

Here is Justice Ginsburg’s answer to that question, in her opinion for the Court:

VMI’s mission [is] to produce "citizen-soldiers," individuals "imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready ... to defend their country in time of national peril." 
Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the Commonwealth's great goal is not substantially advanced by women's categorical exclusion, in total disregard of their individual merit, from the Commonwealth's premier "citizen-soldier" corps.

The rule that animates this decision is simple: People are entitled to be judged on “their individual merit.” 

The Supreme Court decided United States v. Virginia in 1996. In 1997, the first class of women included Cadet Erin Nicole Claunch. And just three years later, Cadet Claunch rose to the top of her class, becoming a battalion commander in charge of half the student body in her senior year. 

Justice Ginsburg was right.

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We who agreed with Justice Ginsburg’s decisions, who cheered the sweeping changes she brought to the country she served, who found inspiration in her briefs and oral arguments, in the opinions she wrote for the Supreme Court of the United States, and in the courage with which she lived her life in the law — we mourn her loss. 

And we citizens and lawyers who believe in the ideal of the rule of law, whether or not we agreed with her decisions, mourn her loss as well. For Justice Ginsburg was not only the advocate of a particular political point of view, but also a great champion of the rule of law, the ideal that ennobles our profession, an ideal that stands above and apart from the decisions of the day.

The rule of law is the idea that human conflict can be resolved by the impartial application of reasonable rules announced in advance and established by reasonable people trying to create a society that is good and fair and just. The rule of law is the idea that even on those issues that divide us most passionately, about which those on both sides feel they are right to their core, we can resolve our disputes not by war or politics or media or business or in any of the innumerable other ways in which such disagreements have been resolved in human history, but by reason. The promise of the rule of law is the promise of reasoned rule.

The desegregation of VMI was achieved by reasonable people debating how to apply rules impartially based on the facts of a case. And it was decided 7-1, not 5-4: it was decided by law, not by politics. The only dissenter was Justice Antonin Scalia. It is hard to think of judges more different in their legal opinions than Justice Ginsburg and Justice Scalia. And yet they were, in Justice Ginsburg’s words, “best buddies” who shared a love for opera and a love for the law. Here, in microcosm, is everything that makes the rule of law worth fighting for.

* * *

She was everything that is great, and grand, and good about the law. We owe her a debt of gratitude for her service. And we will miss her even as she continues to inspire those who follow in her footsteps.


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