Speaking in a Judicial Voice

NEW YORK UNIVERSITY LAW REVIEW VOLUME 67 DECEMBER 1992 NUMBER 6 SPEAKING IN A JUDICIAL VOICE RUTH BADER GINSBURG* An active participantin the women's movement of the 1970S and,since 19SO, a mem- berof thefederaljudiciary,Ruth Bader Ginsburg has held influentialpositions as both an advocate and a judge. In this Madison Lecture, then Judge Ginsburg drew upon her experiences to examine the 'yudicial voice"from two different perspecti=e± First, she explores the relationshipamong members of the bench, advocating a greatersense of collegiality amongjudge. Second, she contrasts the Supreme Court'ssweeping opin- ion in Roe v. Wade with the Court's more restrained approach in contemporaneous cases involving explicitly gender-baseddiscrimination. offering a vision ofjudicialdeci- sionmaking that recognizes the interdependent role of thejudiciary within the Ameri- can politicalsystem. INTRODUCTION The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation's federal courts.' My remarks touch on both themes; I will speak first about collegiality in style, and next, about moderation in the substance of appellate decisiomaking. My views on these matters reflect experiences over a span of three decades. They have been shaped from my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union's Women's Rights Project, and most recently during the nearly thirteen years I have had the good fortune to serve on the United States Court of Appeals for the District of Columbia Circuit. What I hope to convey about courts, I believe, is in line with the founders'-Madison's and Hamilton's---expec- * Circuit Judge, United States Court of Appeals for the DC Circuit. As this article went to press, the author was appointed Associate Justice, Supreme Court of the United States. This Article originated as the twenty-fourth James Madison Lecture on Constitutional Law at New York University School of Law on March 9, 1993. 1 acknowledge with appreciation the fine assistance of my 1992-1993 law clerks, David Ellen and Malla Pollack, in the preparation of the Lecture and this Article. I See Norman Dorsen, Foreword to The Evolving Constitution, at x (Norman Dorsen ed., 1987). 1185 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 67:1185 tation. As a preface, I will comment on that expectation. James Madison's forecast still brightens the spirit of federal judges. In his June 1789 speech introducing to Congress the amendments that led to the Bill of Rights, Madison urged: If [a Bill of Rights is] incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark... naturally led to resist every encroachment upon rights... stipulated 2 for in the Constitution by the declaration of rights. Today's independent tribunals of justice are faithful to that "original understanding" when they adhere to traditional ways courts have realized the expectation Madison expressed. In The Federalist No. 78, Alexander Hamilton said that federal judges, in order to preserve the people's rights and privileges, must have authority to check legislation and acts of the executive for constitutional- ity.3 But he qualified his recognition of that awesome authority. The judiciary, Hamilton wrote, from the very nature of its functions, will al- ways be "the least dangerous" branch of government, for judges hold neither the sword nor the purse of the community; ultimately, they must depend upon the political branches to effectuate their judgments.4 Mind- ful of that reality, the effective judge, I believe and will explain why in these remarks, strives to persuade, and not to pontificate. She speaks in "a moderate and restrained" voice, 5 engaging in a dialogue with, not a diatribe against, co-equal departments of government, state authorities, and even her own colleagues. I spoke of the founders' "original understanding" a moment ago, and that expression, as I comprehend it, bears clarification in this preface. In his 1987 Foreword to The Evolving Constitution, the second col- lection of Madison Lectures, Norman Dorsen stressed, as Chief Justice John Marshall did in 1819, that our fundamental instrument of govern- 2 1 Annals of Congress 457 (Joseph Gales ed., 1789), quoted in Chapman v. California, 386 U.S. 18, 21 n.4 (1967). While Madison originally doubted the efficacy of bills of rights, he eventually joined Jefferson in recognizing the value of "the legal check [a declaration of rights] puts into the hands of the judiciary." Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson 659 (Julian P. Boyd ed., 1958); see also Maeva Marcus, The Adoption of the Bill of Rights, 1 Win. & Mary Bill of Rts. J. 115, 117-19 (1992). 3 See The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 4 Id. at 465. 5 I borrow language here from Professor Brainerd Currie's guide to analysis of choicc-of- law cases in which the policies of two states are in apparent conflict. See Brainerd Currie, The Disinterested Third State, 28 Law & Contemp. Probs. 754, 757 (1963) ("IT]he conception should be re-examined, with a view to a more moderate and restrained interpretation both of the policy and of the circumstances in which it must be applied to effectuate the forum's legiti- mate purpose."); see also Herna Hill Kay, A Defense of Currie's Governmental Interest Anal- ysis, 215 Recueil des Cours 10, 68-73 (1989-III). Imaged with the Permission of N.Y.U. Law Review December 1992] SPEAKING IN A JUDICIAL VOICE ment is an evolving document, "an instrument 'intended to endure for ages to come."' 6 Professor Dorsen quoted Chief Justice Charles Evans Hughes's 1934 rejection of the notion that "the great clauses of the Con- stitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them."' 7 That understanding, as Professor Dorsen commented, has been and should remain common ground.8 In the recent decade and more of bicentennial celebrations, Supreme Court Justice Thurgood Marshall reminded us that while the Constitu- tion's endurance is indeed something to celebrate, the framers had a dis- tinctly limited vision of those who counted among "We the People." 9 Qualified voters when the nation was new bore more than a passing re- semblance to the framers: the franchise was confined to property-owning adult white males, people free from dependence on others, and therefore considered trustworthy citizens, not susceptible to influence or control by masters, overlords, or supervisors.10 In 1787, only five of the thirteen states had abolished slavery, women did not count as part of the franchise-holding, politically active community in any state, and wealth qualifications severely limited voter eligibility even among white males.I' In correspondence with a friend about the qualifications for voting in his home state of Massachusetts, patriot and second President John Adams elaborated: [I]t is dangerous to open so fruitful a source of controversy and alter- cation as would be opened by attempting to alter the qualifications of voters; there will be no end of it. New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level. 12 Our second President notwithstanding, equalizing voices and de- stroying rank distinctions have been dominant concerns in recent genera- 6 N. Dorsen, supra note 1, at xii(quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819)). 7 Id. (quoting Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 443 (1934)). 9 See id. 9 See Thurgood Marshall, Reflections on the Bicentennial of the United States Constitu- tion, 101 Harv. L. Rev. 1, 2 (1987). 10 See Richard B. Morris, The Forging of the Union, 1781-1789, at 162-93 (1987); Linda K. Kerber, "Ourselves and Our Daughters Forever": Women and the Constitution, 1787- 1876, This Constitution: A Bicentennial Chron., Spring 1985, at 25. 11 See Deborah Jones Merritt, What's Missing from the Bill of Rights?, 1991 U. IM.L Rev. 765, 766-69. 12 Letter from John Adams to James Sullivan (May 26, 1776), in 9 The Works of John Adams 378 (Charles Francis Adams ed., 1854). Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW8 [Vol. 67-:1185 tions and, as one would expect, the focus of several Madison Lectures.' 3 Although the word "equal," or "equality," in relation to individual rights does not even appear in the original U.S. Constitution or in the first ten amendments that compose the Bill of Rights, 14 the equal dignity of individuals ideal is part of our constitutional legacy, even of the pre- Civil War original understanding, in this vital sense. The founding fa- thers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. Their culture held them back from fully perceiving or acting upon ideals of human equality and dignity. Thomas Jefferson, for example, when President, told his Secretary of the Treasury: "The appointment of a woman to [public] office is an innovation for which the public is not prepared, nor am I. ' 15 But the founders stated a commitment in the Declaration of Independence to equality and in the Declaration and the Bill of Rights to individual liberty.

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