Twin Pillars of Judicial Philosophy: The Impact of the Ginsburg Collegiality and Gender Discrimination Principles on her Separate Opinions Involving Gender Discrimination

Abstract:     
This Article examines the inherent tension between the collegial court philosophy embraced by Justice Ginsburg, and her own position on gender discrimination. This tension is likely exaggerated in light of the divisiveness of the Court and the frequent five-to-four voting on the issue of gender discrimination. Within the framework of her Supreme Court dissents and concurring opinions on gender discrimination, this Article explores whether Justice Ginsburg has been able to maintain dual fidelity to the bulwark of collegiality, i.e., restraint in separate opinion writing, and to her gender postulate. Or, in the alternative, has Justice Ginsburg abandoned the possibly gender-based goal of collegiality in the highly politicized and contentious arena of gender discrimination, particularly as her colleagues have increasingly engaged in individual opinion writing? Consequently, the Article examines not only whether and when Justice Ginsburg has chosen to dissent or concur but also the style and substance of her separate opinions.

Part I of the Article examines Justice Ginsburg's career as a litigator and her deep commitment to the eradication of gender discrimination. Part II considers her thirteen-year tenure as a circuit court judge for the District of Columbia and her reputation as a pragmatic, centrist judge concerned with consensus-building and collegiality. Part III culminates the survey of her career with a study of her voting patterns as a Supreme Court justice in cases involving gender discrimination. Specifically, this Part explores whether her collegiality philosophy has led her to adopt a more moderate approach to gender issues, overlooking relatively minor differences with her more conservative colleagues.

The Article ultimately concludes that the dual objectives of gender equality and collegiality need not be mutually exclusive. Indeed, as evidenced by Justice Ginsburg's separate opinions, these two goals can coexist as a substantial force in advancing the law.

Number of Pages in PDF File: 40

Keywords: Ruth Bader Ginsburg, Supreme Court, Collegiality, Gender Discrimination

JEL Classification: J71, k30

Accepted Paper Series