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Ruth Bader Ginsburg: The ultimate pragmatist

Justice Ginsburg knew that results often count more than procedure, especially when rigidity serves no purpose - and in that vein, took care of some specifically Jewish concerns
Ruth Bader Ginsburg (1933-2020)
Ruth Bader Ginsburg (1933-2020)

Most commentators eulogize the late US Supreme Court Justice Ruth Bader Ginsburg for her dissenting opinions, rather than for her true legacy. In her later years, after Donald Trump took office, she became a cultural icon and media heroine, known to the public beyond the usual followers of her legal career. T-shirts, posters, books and even movies celebrated her dedication, determination and her outspoken feminism and liberalism.

The aura surrounding Justice Ginsburg distorted her personality and misinterpreted her approach to problems and her legal thinking. She achieved her goals mostly quietly and with subtlety. Unlike run-of-the-mill pragmatists who fear to rock the boat, she cared for results and fought for principles, when necessary.

In her greatest service to Judaism, privately and with no publicity, Justice Ginsburg ensured that the Supreme Court would recess for Yom Kippur. Previously, the clerk rescheduled arguments of Jewish lawyers who requested postponements. Advocates more comfortable with their religious requirements would avail themselves of that option. Other and less observant Jewish lawyers with a once-in-a-lifetime case before the High Court succumbed and appeared. Most Jewish justices, including Ginsburg early in her tenure, took the day off. Ultimately, Justice Ginsburg quietly convinced Chief Justice William H. Rehnquist not to schedule a sitting. Justice Ginsburg prevented many Jews from committing a grievous sin.

Years earlier, while on the US Court of Appeals for the District of Columbia Circuit, her skill at diplomacy made life easier for religious Jews.

Courts issue certificates of admission to lawyers authorized to practice before those tribunals. Typically, in the United States, these certificates signify the date as “AD xxxx” and the year of independence of the United States. “AD,” of course, refers to the alleged birth year of Jesus. Observant Jews regard “AD” as an expression of idolatry. They could do nothing about it and had to let the matter lie. To her credit, when Judge Ginsburg joined the DC Circuit in 1980, she quietly made sure that lawyers can choose a certificate shorn of the offending reference.

Justice Ginsburg’s practical, real-world outlook extended to her legal opinions. Her practical approach stood out as much as her strongly held principles. Indeed, on a court of appeals with such outstanding liberals as the late Judge David L. Bazelon and the late Judge Patricia M. Wald, the legal community considered Ginsburg a moderate.

Indeed, Judge Ginsburg knew that, often, results counted more than procedures, especially when rigidity served no purpose or defeated the underlying policy. Once, I argued a case before her, Judge Bazelon, and conservative Judge Antonin Scalia (before his promotion to the Supreme Court). It involved a Federal Energy Regulatory Commission decision to force the owner of a dam to build a new one because of safety concerns. Normally, the law requires formal review under the National Environmental Policy Act for such a major action. In this case, FERC did not conduct one. Rather, in its final order, the agency responded in full to the issues environmental groups raised.

Judge Bazelon held that insufficient. The law required a formal process. Judge Ginsburg, joined by Judge Scalia, wrote the majority opinion. She held that as long as the government explained publicly and in detail its consideration of the environment, courts could review the agency’s action and ensure proper protection. Sending the case back for time-consuming proceedings would serve no purpose (Friends of the River v. FERC).

In another case, Judge Ginsburg ruled against the letter of the law to achieve the rule’s purpose. The Federal Rules of Appellate Procedure establish deadlines for challenging agency actions in court. The rules allow an extra day if the deadline falls on a federal holiday. In this instance, the challenger filed one day late, on the excuse that the deadline fell on Martin Luther King, Jr. Day. The problem lay in the fact that, at that time, the federal government had not established the day’s observance, while the District of Columbia had. Realizing that the lawyer’s office probably closed on the local holiday, Judge Ginsburg ruled that the challenger deserved the extra day. I disagreed then, but in the fullness of time, I concede.

Justice Ginsburg lived up to the Jewish ideals of pursuing justice while maintaining peace. We judge people by their actions more than their words. Justice Ginsburg earned the admiration of all fair-minded Americans, and in particular us Jews.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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