Bloomberg News

Ginsburg Whisper Carries Weight in Gay-Marriage Arguments

March 28, 2013

Justice Ruth Bader Ginsburg is sometimes barely audible when she speaks at the U.S. Supreme Court. That doesn’t mean she isn’t heard loud and clear.

As the court took up same-sex marriage this week for the first time, the 80-year-old justice offered a reminder that she remains a force, the anchor of court’s liberal wing. At various points, she served as the hard-hitting questioner, the voice of experience and a source of wit.

Ginsburg delivered one of the most memorable lines of the two days of arguments when she said yesterday that a federal law limiting benefits to married gay couples would create “two kinds of marriage -- the full marriage, and then this sort of skim-milk marriage.”

The quip drew chuckles throughout the packed courtroom. The laughter would have been louder except that many of the 500 onlookers couldn’t hear Ginsburg, whose soft speaking style means her words often get lost in the corners of the courtroom.

Her quiet manner and diminutive stature make Ginsburg an easy justice to underestimate -- for those not familiar with her work.

“It is clear that she is respected and even somewhat feared by her adversaries on the bench,” said Garrett Epps, a University of Baltimore law professor who attended the argument.

The skim-milk analogy was her way of “explaining in clear terms -- terms that will be remembered and carried forward to judges and citizens outside the court -- what is wrong with the idea that the federal government can withhold the title of marriage to couples legally wedded in their states,” Epps said.

Women’s Rights

A leading advocate for women’s rights before becoming a judge, Ginsburg has a detailed knowledge of the court’s civil rights precedents. She drew upon it yesterday when Paul Clement, the lawyer arguing in support of the federal law, said there was a “rational basis” for the measure. The court often uses the “rational basis” test in deciding whether law is constitutional.

Ginsburg pointed to a Supreme Court case she worked on as a lawyer four decades ago. In that 1971 case, Reed v. Reed, the court unanimously said Idaho had no rational basis for a law that said probate judges should try to choose a man, rather than a woman, when appointing the executor of an estate.

“It was rational basis,” she said. “And yet the court said this is rank discrimination and it failed.”

Three Women

Once the only woman on the nine-member court, Ginsburg is now one of three, along with Sonia Sotomayor and Elena Kagan. On multiple occasions this term, the trio has operated as a team in questioning lawyers, taking turns probing the weak points of their arguments.

All three indicated this week that they will back gay marriage, though perhaps incrementally. For her part, Ginsburg has hinted at a tactical reason for a go-slow approach -- preventing the sort of backlash that followed the 1973 Roe v. Wade decision, which legalized abortion nationwide.

Ginsburg said last year that the court might have been better to limit that ruling to the Texas law that was at issue.

“It’s not that the judgment was wrong, but it moved too far, too fast,” Ginsburg, a 1993 appointee of President Bill Clinton, said at Columbia Law School in New York.

Tactics aside, Ginsburg left little doubt this week about her willingness to take a stand for gay marriage. She tangled with Antonin Scalia, the Republican-appointed justice who calls Ginsburg his best friend on the court.

Scalia Clash

During the March 26 argument on a California law that bars gays from marrying, Scalia said there was “considerable disagreement among sociologists” as to whether children were harmed by having same-sex parents.

“Some states do not permit adoption by same-sex couples for that reason,” Scalia said.

Ginsburg interrupted -- or tried to -- to say that California lets same-sex couples adopt, making Scalia’s argument irrelevant in the case before the court. Although Scalia kept talking, apparently not hearing Ginsburg, she eventually made her point.

Ginsburg’s role behind the scenes may be even more significant. Her seniority means she often has the opportunity to assign opinion-writing duties, a role that lets her shape the court’s reasoning and influence wavering colleagues.

Even though she is often on the short end of 5-4 decisions, Ginsburg frequently can lay down legal markers that may influence the court in the future, Epps said.

“She is in general a powerful force,” he said. “She lacks only one additional vote to become one of the most influential justices in recent history.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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