Sisters in Law (36 page)

In the first story, the government had actually planned to kill the plaintiff. In May 1985, Louisiana convicted New Orleans resident John Thompson of murder. He did not testify on his own behalf, because, a few weeks earlier, he had been tried and convicted of armed robbery, and if he testified, the jury would learn about the prior conviction. Unknown to him, he actually had had a good defense to the robbery charge, because the state had found a garment from the robbery victim that was stained with the blood of the robber, type B. Although prosecutors have a constitutional obligation to disclose to a criminal defendant evidence that might clear him if they find it, the team of prosecutors said nothing, so Thompson never had his blood tested. Instead, right before Thompson's trial, one of the prosecutors removed the fabric from the lab and never returned it. Years later, the absconding lawyer, facing terminal cancer, confessed to one of his colleagues, another ex-prosecutor, about hiding the evidence that would have exonerated Thompson.

Afraid to testify in his murder trial, Thompson was convicted of murder. Despite Thompson's pending execution, the second prosecutor also remained silent about the blood test. As Thompson was facing certain death, a private investigator employed by his pro bono lawyer discovered the lab report. Thompson was tested and turned out to be Type O. The state vacated the robbery conviction. Thirty minutes after a new trial, Thompson was also acquitted of the murder.

The lawyer who framed Thompson being dead by then, Thompson sued the prosecutor's office for violating his civil rights by failing to train its people to follow the constitutional mandate to share exculpatory evidence with the defense. In an opinion by Justice Thomas, the five conservatives on the Supreme Court ruled that the prosecutor was not liable for damages to the man his office almost killed. After all, it was only one violation. You could not sue
a whole prosecutor's office for the act of one “rogue” attorney, the Court said.

Ginsburg dissented, in a stunning condemnation drawn largely from the uncontested record of the civil rights trial. The New Orleans prosecutor acknowledged that he did not understand what the Constitution required, she reported. His training manual misrepresented the duty to disclose, he had no idea whether his green assistant prosecutors understood either, and he certainly hadn't studied anything since he was elected a decade before this case. Anyway, he testified, compliance would make his job so much harder. And now the Court was going to let him get away with it. So powerful was her attack on Thomas's opinion that Justice Scalia, in the majority, felt compelled to file a separate concurring opinion to try to rebut it. The media went wild: “not possible for the Court to sink any lower”; “Justice Thomas's meanest opinion.”

In the second case, Ginsburg opened the substance of her dissent in good storytelling fashion: “On October 11, 2001, a three-ton metal shearing machine severed four fingers on Robert Nicastro's right hand.” The case hinged on whether New Jersey, where the accident took place, had sufficient ties to the manufacturer of the machine, based in Great Britain, to allow Nicastro to sue in the state. In its opinion, the Court's five conservatives, joined by the normally liberal Justice Breyer, said no. The question of when a sovereign state has jurisdiction to haul a foreign company into court has been a—perhaps the—staple of law school procedure classes for over a hundred years. Ginsburg, herself a former procedure teacher, and a well-respected scholar in the area, doubtless took an outsized interest in the case.

But the decision to read the two dissents in court demonstrates Ginsburg's deepest commitments. Both men were harmed, terribly and irreparably, by large forces well beyond their control. In both cases, Ginsburg's dissents direct her audience's attention to the lack of equality between the plaintiff and the large social institutions. John Thompson, an African American accused of a capital crime by the prosecutors of Orleans Parish, and Robert Nicastro, a worker in the perilous fields of scrap metal cutting plants in New Jersey,
had only the law to make them whole when the blunt forces of these institutions bore down on them. When Ginsburg spoke her dissents aloud in her soft, unemotional voice in 2011, she was calling the conservative majority on its decision to give the powerful a pass. The two landmark dissents of the 2011 term gave the world a glimpse of the fundamental liberalism of Ginsburg's thought. Her vision of equal access to justice extended well beyond the cases that had made her famous.

RACE AND SEX

By 2011, her first year of widowhood was coming to an end. Her “good job” had gotten her through the hard first year. But even that year was not without its consolations. She was standing on the podium receiving an honorary degree from Harvard in the spring, when her fellow honoree Placido Domingo turned to her and burst into song: the greatest living tenor serenading her with a rendition of the Verdi aria “Celeste Aida.” “One of life's great moments,” she said. Although she did not lecture abroad as she normally did in the summer, she did go, as usual, to the opera festival at Glimmerglass in Cooperstown, New York, and to Santa Fe with her family. Autumn found her celebrating her daughter and son-in-law's thirtieth anniversary in New York. She also had the gratification of seeing the tribute cookbook to Marty,
Chef Supreme
, published by the Supreme Court Historical Society.

But mostly she was working harder than ever, and mostly fighting a rearguard action for women.

Unlike the “partial birth abortion” and sexual-harassment cases from a few years before, none of the battles were new. With its new majority now in place, the Court was just returning to recent disputes and rolling back the feminist legal revolution. In March 2012, Justice Kennedy, armed with a new conservative Court, took another swipe at the Family and Medical Leave Act, which had survived his negative vote in
Nevada v. Hibbs
a mere nine years before. The 2012 case,
Coleman v. Court of Appeals of Maryland
, looks to the layperson exactly like the earlier case. The only difference
between them was that Hibbs needed leave to care for his family, while Coleman needed leave because he was sick himself. Like Nevada had in the Hibbs case, Maryland said no. This time Kennedy and the four other conservatives ruled for the state. Ginsburg read her dissent aloud. As Ginsburg pointed out, the entire law—maternity leave, family leave, self-care sick leave—was enacted in an effort to neutralize all caregiving away from the assumption that it was always the women who did the caring. Where women were stereotyped as caregivers, even for their own care when pregnant, they were routinely undervalued as workers. The Constitution prohibits sex discrimination and the Leave Act enforces that prohibition. Therefore, when the state violates the federal law, people should be able to sue the state.

Scariest of all to Ginsburg was Kennedy's willful refusal to recognize the impact of social programs such as health leave on women's equality at work and thus on the equality mandated by the Fourteenth Amendment. Getting the Court to treat sex discrimination as a serious violation of the Fourteenth Amendment had been Ginsburg's life work. Kennedy didn't go as far as Scalia, who concurred specially to remind the reader that he never thought the Fourteenth Amendment treated sex like race. Scalia's position would have led the Court to invalidate the act altogether. Kennedy's opinion, however, was just a kinder, gentler version of Scalia's call to undo women's legal equality under the Constitution.

Coleman
was also a warning that conservatives on the Court were affirmatively going to go after
progressive
legislation such as the Leave Act, help that women had achieved when there was a Democratic Congress and a sympathetic president. Scholars and Court watchers were starting to talk about a return to the days when the Court invoked the Constitution and struck down the laws that created Franklin Roosevelt's New Deal.

DISSENTING WOMAN

A year later, as the Court entered the always fraught last week of the term, the reliably collegial Justice Ginsburg actually broke a
record for oral disagreement in one day. All three of the opinions delivered on Dissenting Monday, June 24, 2013, were about equal rights. Two of the cases made it vastly harder for women and minorities to use the Civil Rights Act to make the workplace more inclusive. The third made it harder for well-meaning institutions such as the University of Texas to take affirmative action to become more inclusive, particularly of race.

The two employment-discrimination cases were obvious targets for Ginsburg's ire. In one,
Vance v. Ball State
, the Court read the Civil Rights Act to cut back heavily on who could be considered a supervisor at work. Since supervisors can make the employing company liable for their sexist acts, the effect of the decision was to make it harder for wronged employees to reach the deep pockets of the employer. Being less exposed, companies had less reason to guard against, say, having their employees invite female subordinates to fish coins from their pants.

The second dissent,
University of Texas Southwestern Hospital v. Nassar
, was a response to an exceptionally bold move by Justice Kennedy to reverse another of his defeats at the hands of Justice O'Connor a mere nine years before. The hospital, Dr. Nassar charged, fired him because he had complained about discrimination. With a bare majority, O'Connor had ruled in the girls' basketball coach case,
Jackson v. Birmingham Board of Education
, that retaliation against someone who complained of discrimination was itself an illegal act of discrimination. Kennedy had dissented in that earlier case. The obvious route to toss Nassar's claims would have been for Kennedy to use his majority to overrule
Jackson v. Birmingham
with no better explanation than a change of court personnel. Rather than indulge in such an obvious political move, he achieved the same end by holding that, while retaliation might constitute discrimination, the
standard
for proving retaliation would be much harder than the standard for proving straight discrimination. The hospital had offered another reason for canning Nassar, which made his a mixed-motive case. Even if the employer is trying to punish a complainer, Justice Kennedy said, if it can come up with any other reason to fire the guy, the employer gets off.

Kennedy's opinion is particularly egregious. Twenty years before the
Nassar
case, O'Connor had suggested a very modest shift in the standard for a plaintiff in a mixed-motive case, Ann Hopkins's suit against Price Waterhouse. Kennedy dissented in
Price Waterhouse
; even O'Connor's modest change in the law to favor the female plaintiff was too generous for him. But thereafter, in response to the tightfistedness of her opinion, Congress changed the Civil Rights Act to adopt a superliberal standard for discrimination cases where the employer had mixed motives. So when the conference met to decide
Nassar
, in 2013, the law was that 1) retaliation was just like discrimination and 2) an employee wins if he proves that discrimination was a motivating factor, even if the employer had other reasons too. Nonetheless, in
Nassar
, five justices voted that in a retaliation case, any other good reason for firing the complaining employee would exonerate the employer. After all, Kennedy reasoned, retaliation was the subject of a different
section
of the Civil Rights Act than the one Congress had changed to make it easier on plaintiffs.

Ginsburg was not polite. In her dissent she repeatedly reminded Kennedy that he was the
dissenter
in
Price Waterhouse
, the mixed-motive case, in 1989. Again, without overtly overruling the two decisions where he had lost the earlier battle, he made the law as hostile as possible to civil rights plaintiffs.

The same day, the Court issued its 7–1 decision in
Fisher v. University of Texas
, the latest racial affirmative action case. (Only eight justices sat, because Kagan had been disqualified from participating by her earlier involvement while solicitor general.) Although racial affirmative action had long been subject to the hardest constitutional standard—strict scrutiny—O'Connor's fifth vote had saved it in 2005. Her majority opinion held that the University of Michigan's consideration of race served a compelling state interest in diversity and did not “unduly harm” nonminority applicants. Now that she was gone, Court watchers had speculated that the conservatives were going to forbid consideration of race—a common practice at almost all institutions of higher learning—altogether. Instead the justices sent the University of Texas program for giving
some weight to racial diversity back to the lower court to review for themselves whether the consideration of race in Texas's plan was small enough to meet the high standard of strict scrutiny. The decision was so unprincipled and so unexpected that commentators speculated either Justice Kennedy or Chief Justice Roberts had gotten “cold feet” about saying that the Civil War amendments actually prohibited helping African Americans.

Despite the narrow escape, Ginsburg had had it. When, in 2013, her fellow liberals breathed an audible sigh of relief that the Court did not, once and for all, rule that affirmative action was unconstitutional per se, she was the only dissenter. The lopsided vote may have given her license. Had the Court split 4–4 in
Fisher
, she would have disciplined herself to save something of affirmative action. But, protected by the majority vote of seven to remand the case, she was free to speak to the ages, reading her dissent from the bench.

She was particularly exercised about the pretense that the lower courts should ensure that schools did not put too much weight on race in their efforts to achieve a racially diverse student body. The Court's opinion—and, indeed, the jurisprudence around affirmative action going back decades—is ridiculous, Ginsburg wrote. You cannot have programs aimed at racial diversity that are not about race. Affirmative action remedies are racially motivated. Anything else anyone says is a lie: “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed [in the earlier affirmative action case
Gratz v. Bollinger
], the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.' As I said in my dissent to the last round of this nonsense, ‘If universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”'”