Canonizing Justice Ginsburg’s Olmstead Decision: A Disability Rights Tribute

Abstract

Within American jurisprudence, there exists what is sometimes referred as “the Constitutional Canon.” It consists of documents and decisions that go to the heart of what it means to be an American; and often these documents and decisions express the ideals of the society for which we are all striving. The Constitution of the United States, the Declaration of Independence, the “I Have a Dream Speech,” Marbury v. Madison, and Brown v. Board of Education are all seen as part of the Constitutional Canon. Juxtaposed to this are decisions and documents collectively called the anti-canon. Such cases are often said to be Dred Scott, Plessy, Korematsu, and Lochner.

While authors of the anti-canon are often shunned or forgotten, those jurists who author a canonical decision or document ring in the American consciousness for generations to come. This essay, as the title suggests, offers a short justification as to why the recently departed Justice Ginsburg should be regarded as having authored a piece of the Constitutional Canon. In so doing, it acts as a tribute to the Justice who, though I had strong disagreements with her on many occasions, has fundamentally altered the course of my life and the lives of countless Americans with disabilities. Stripped of her title as “Notorious RBG,” assuming the error of her abortion jurisprudence; and imagining a world where she had never authored or argued a sex discrimination case, it remains true that Justice Ginsburg’s impact on the world through her Olmstead v. L.C. ex rel. Zimring opinion ranks alongside Chief Justice Earl Warren and his opinion in Brown v. Board of Education, alongside John Marshall and his Marbury v. Madison opinion, and alongside Dr. King and his “I have a dream speech.”