by Dr. Ruwantissa Abeyratne in Montreal
Judges ought to be more learned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. ~ Francis Bacon
Someone once said our work reflects what we do, and our life reflects who we are. Justice Ruth Bader Ginsburg (RBG) who inspired the world with her moral rectitude, judicial righteousness and fairness showed us that what she did was also who she was. Two words best describe RBG– integrity and righteousness. Integrity is the quality of being honest and having strong moral principles, moral uprightness. Righteousness is doing the right thing and fighting for the downtrodden.
This is not the time RBG should have left us, particularly when the world is reeling under an unsettling trepidation wrought by a globally manipulated and lopsided value system mired in casuistry. In her life and in her work RBG would have none of it. Just two causes, among the many she fought for, illustrate her life and work best, although she exuded integrity and righteousness in all the cases she heard on the Bench of the Supreme Court of The United States for 27 years. The first was the issue of the rights of women which were in a parlous state at the time she was one of nine women in a male dominated law school at Harvard University. The second was the rights of the mentally handicapped or disabled.
Natalie Gontcharova writes: “Part of what propelled Ginsburg toward the fight for equal protection for women under the law was her own experience of discrimination. As one of only nine women at Harvard Law School in 1956, she recalled the dean asking why she and her classmates were taking up seats that could be filled by men. After leaving Harvard and graduating at the top of her class at Columbia Law, she was initially rejected from every job she applied to. And after joining the faculty at Rutgers Law School in 1963, she found out her salary was lower than that of her male colleagues and campaigned for equal pay, which resulted in a raise not only for herself, but also for other women at the university. Ginsburg was not the kind of person who was satisfied with improving her own lot in life — she made sure that she was bringing others along with her”.
In 1971 when the case of Reed v. Reed was heard, RBG was a volunteer lawyer for the American Civil Liberties Union. The case concerned a law enacted in Idaho in 1864 which required that when the father and mother of a deceased person both sought appointment as administrator of the estate, the man had to be preferred over the woman. When their son died at the age of 16 both the parents filed a petition seeking to be appointed administrator of their son's estate. The probate court, relying on the language in the 1864 statute, chose the father. RBG stringently supported the argument that there was a compelling need to subject gender classifications such as the one at issue to strict scrutiny under the Equal Protection Clause. The Supreme Court was unanimous in agreeing with the argument and striking down the discriminatory statute.
Two years later, in the case of Frontiero v. Richardson, RBG successfully argued before the Supreme Court that a woman could not be denied the position of a provider for her dependent husband. This was a case where RBG argued that there could also be discrimination against a woman as well as a man. When a woman in the U.S. Air Force applied for benefits for her dependent husband, she was told she’d have to prove he was a dependent, even though men in the Air Force didn’t have to prove that their wives were dependent on them. RBG argued that inasmuch as the 14th Amendment to the United States Constitution was against racial discrimination, there should be no discrimination based on gender.
RBG was equally forceful on the Bench. When the 1999 case of Olmstead v. L.C. came up before the Supreme Court, Justice Bader Ginsberg interpreted the Americans with Disabilities Act of 1990 (ADA), which defined the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination in its true context. The Act proscribes discrimination in the provision of public services, and specifies, inter alia, that no qualified individual with a disability shall, “by reason of such disability,” be excluded from participation in, or be denied the benefits of, a public entity’s services, programs, or activities.
Two mentally retarded women in this case, one also diagnosed with schizophrenia, and the other, with a personality disorder, were voluntarily admitted to Georgia Regional Hospital at Atlanta (GRH), where they were confined for treatment in a psychiatric unit. Although the professionals who treated them eventually concluded that each of the women could be cared for appropriately in a community-based program, the women remained institutionalized at GRH. The women pleaded that they be placed in community care which the state failed to respond to, resulting in the institution of action against the State officials by the plaintiffs. In her judgment Justice Bader Ginsberg opined that States are required to place persons with mental disabilities in community settings rather than in institutions when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
The Honourable Justice Bader Ginsburg who delivered judgment on behalf of the Court was emphatic that the denial of community placements to individuals with disabilities is precisely the kind of segregation that Congress sought to eliminate in passing the ADA. It was correctly noted by the Honourable Justice that unnecessary segregation and institutionalization constitute discrimination and violate the ADA'S integration mandate unless certain defenses are established. Jurists are appreciative that the decision presents new opportunities for advocating for community-based services and supports for people with disabilities.
To adapt an earlier comment made by the author on the passing of another judicial officer and apply it to describe the Honourable Justice Ruth Bader Ginsburg: She had a clear understanding of what is moral and the right thing to do. She acted categorically and not consequentially. Her judgments reflect that the moral worth of judicial decisions must be unconditionally and universally acceptable as being for the good of the people. Her approach to justice was that an effective judicial system must apply the universal and categorical principle of the dignity and freedom of every individual. She did not treat the individual as a means but considered him an end. She believed that overall public interest in good governance is now a common feature in the modern state, and is not restricted to the academics and practitioners who bore the burden of evaluating governance in the past. Similarly, she believed that an empirical demonstration of justice is now a compelling need that could provide the necessary tools for the public to develop their own desired models of society which are capable of delivering equity that accord with their expectations.
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