The split on the court went deeper than politics. The five conservative justices who drafted the majority decision were all men, and the three dissenting judges were women, excluding Justice Stephen G. Breyer. And according to Ginsburg, the split isn’t incidental; it’s significant of a deeper misunderstanding about the experience of women.
During an interview with Yahoo News’ Katie Couric, Ginsburg said that she didn’t believe the male justices truly understood the ramifications of their decision, and that contraceptive protection is something that every women has to have access to, in order to “control her own destiny.” According to ThinkProgress:
“Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied. “But the justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
“Contraceptive protection is something every woman must have access to, to control her own destiny,” Ginsburg told Couric. The decision allowing an employer to refuse to cover those contraceptives “meant that women would have of that for themselves.”
She analogized the “blind spot” the justices had in this case to that in the 2007 ruling against plaintiff Lilly Ledbetter, a woman whose fair pay lawsuit was rejected by the court. She has framed on her wall the Lilly Ledbetter Fair Pay Act, passed by Congress two years later to correct the Supreme Court ruling in which she dissented. It was the first piece of legislation signed by President Barack Obama.
Ginsburg said the passage of the law is one of her proudest achievements, because in her dissent to that case, “I said the ball is now in Congress’ court to correct the error into which the court has fallen. And Congress did it in record time.”
During her interview, Ginsburg praised the US tradition of dissents, and noted that “many of those dissents are now unquestionably the law of the land.” She used Justice John M. Harlan’s dissent to the separate but equal ruling in Plessy v. Fergson as an example. She also reiterated her 32-page dissent, and the utter ridiculousness of allowing a piece of legal fiction to have religious beliefs:
“I certainly respect the belief of the Hobby Lobby owners,” Ginsburg told Couric. “On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I had never seen the free exercise of religion clause interpreted in such a way.”
She explained how the law is supposed to work with an analogy she used in her dissent: A person has freedom to move his or her arms until it “hits the other fellow’s nose.” “It’s the same way with speech. Same way with religion. You can exercise your right freely until the point where it is affecting other people who don’t share your views.”
On the male justices’ future evolution, Ginsburg said she believes that “daughters can change the perception of their fathers.” She also believes that progress wins out over the course of history. Asked about the landmark Citizens United ruling that struck down limits on corporate political spending, Ginsburg said she believes her dissent in that case will also one day be the law of the land.
“That is my expectation,” she said. “I may not be around to see it but it will happen.”
Above the framed copy of the Lilly Ledbetter Fair Pay Act in her chambers, Ginsburg has a photograph of the signing of the act, given to her by President Obama with a personal message. “Happy birthday,” he wrote, “and thanks for helping to create a more equal and just society.”
She’s certainly done more than her fair share of work to establish a more equal and just society, that’s for sure.