The Great Dissenters: “Writing not for today but for tomorrow”
This brief article's subtitle is the dissenter’s hope in the late Ruth Bader Ginsburg words, better known to my generation as the Notorious RBG. As to her nickname combining her initials with the alias of a rapper that passed away at a young age, she said in August 2019 at SUNY, Buffalo: “it was beyond my wildest imagination that I would one day become the Notorious RBG.” Looking backward, it’s clear to me that she not only had an exceptionally bright legal mind with the power to persuade but also an immense sense of humor. In an interview of September 2019 at The University of Chicago, she recognized that the nickname was the product of a 2013 blog post by a second-year law student at NYU who knew that the Notorious BIG and she had something common: both had been raised in Brooklyn, NY. In the last decade of her life, Justice Ginsburg was revered as a genuine American cultural icon. Her life serves as a testimony of the importance to fight for the equal citizenship stature of men and women in the U.S.
Among the great dissenters of all time in the U.S. Supreme Court, we can find Ginsburg, Marshall, and Harlan. Ginsburg dedicated a good part of her life to opposing gender-based discrimination, or in her era's language, women's subordination based on sex. Likewise, the life of Justice Thurgood Marshall is immortalized by dissenting from the white supremacists of his day. First, as a lawyer in the 1950s, he effectively moved the highest court in the land to desegregate schools, and then in the 70s, as a Justice, supported the need for affirmative action. Ginsburg built upon Marshall's legacy when in the 1990s, she wrote the court's opinion in the landmark case against the Virginia Military Institute’s male-only admissions policy. Therein, she concluded: “a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
Another titan of the art of dissenting is John Marshall Harlan. He was the only Justice in the 1890s that disagreed with the infamous ‘separate but equal’ doctrine by noting: “The arbitrary separation of citizens, on the basis of race… cannot be justified upon any legal grounds”. Harlan also dissented from those that argued that the Constitution could be applied partially and capriciously in American unincorporated territories. Solving the discrimination against Americans residing in unincorporated territories is still a pending assignment. One of the aspects that I find most fascinating about Justice Ginsburg was that in 2001 she unearthed and penned the foreword for the manuscript of Malvina Shanklin Harlan. The same was first published by the Supreme Court Historical Society and then in 2002 by Random House under the title: Some Memories of a Long Life, 1854-1911. That book tells the story of the wife of Justice John Marshall Harlan.
In the foreword to said book, Justice Ginsburg cites the old saying - behind every great man stands a great woman. She narrates a moment in which Mrs. Harlan motivated her husband to complete his dissent in a case that involved black people's civil rights. It turns out that one day Mrs. Harlan removed from the desk of Justice Harlan all the inkwells that he had next to his pad of paper. Then, she located in the desk an inkstand that the Harlan’s owned and used to belong to Chief Justice Roger B. Taney, who had delivered the court's opinion in Dred Scott v. United States (the 1850s nefarious case that excluded black people from holding U.S. citizenship). The words of Mrs. Harlan as recounted in Ginsburg’s prologue were:
The memory of the historic part that Taney’s inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery… in the ante-bellum days, seemed that morning to act like magic in clarifying my husband’s thoughts in regards to the law that had been intended… to protect the recently emancipated slaves in the enjoyment of equal ‘civil rights.’ His pen fairly flew on that day and … he soon finished his dissent.
Thanks to Justice Ginsburg, we can now share this untold story behind a dissent of Justice Harlan in the voice of Mrs. Harlan.
I would like to end with two questions that required further consideration and were presented by Justice Ginsburg in the oral arguments of two 2016 cases of Puerto Rico before the U.S. Supreme Court. The first question stems from the case Puerto Rico v. Sanchez Valle: “Could you explain before you sit down when and why the United States changed its position on this question? Because as I understand it, in -- in more than one brief, took the position that Puerto Rico, for double jeopardy cases, is -- for the Double Jeopardy Clause is -- is treated like a State.” The second question was presented in Puerto Rico v. Franklin California Tax-Free Trust: “Why would Congress put Puerto Rico in this never-never land? That is, it can't use Chapter 9, and it can't use a Puerto Rican substitute for Chapter 9… Why in the world -- what explains Congress wanting to put Puerto Rico in this anomalous position of not being able to restructure its debt?” In the case mentioned above, Justice Ginsburg was the only one that joined Justice Sonia Sotomayor’s dissent. Like in the cases of gender-based discrimination and race-based discrimination, the fight against discrimination based on location (discrimination against Americans residing in U.S. unincorporated territories) continues.
Ginsburg's legacy lives in those that write not for today but for tomorrow and are hopeful in the future despite the present injustices.
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Manuel Román-Basora holds an assistantship in the Department of Public Administration. Recently, he completed his doctoral elective coursework at the University of Illinois at Urbana-Champaign. Román-Basora has earned merit-based scholarships in Washington D.C. and Berlin, Germany. Previously, he worked for six years for the federal judiciary.