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CURRY: Ruth Bader Ginsburg is Becoming the New Thurgood Marshall

George E. Curry | 7/17/2013, 3 p.m.
If you're looking for the justice on the Supreme Court who mirrors Thurgood Marshall's tenure on the bench, it is ...
George E. Curry

If you’re looking for the justice on the Supreme Court who mirrors Thurgood Marshall’s tenure on the bench, it is not Sonia Sotomayor, the “Wise Latina.” And it certainly isn’t Clarence Thomas. It is Ruth Bader Ginsburg, the second woman to serve on the nation’s highest court.

This became clear in the Fisher v. University of Texas affirmative action case. With Elena Kagan recusing herself, the court voted 7-1 to send the case back to court of appeals for additional review. The lone dissenter was Ginsburg.

“The University of Texas at Austin (University) … has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats….” she said. “ Justice Powell’s majority opinion in Bakke “rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.’ And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

In sending Fisher back to the 5th Circuit Court of Appeals in New Orleans, the 7-1 majority emphasized that the lower court should apply a standard of strict scrutiny, meaning the University must prove that it has tried all available race-neutral approaches before allowing race to be considered a factor in admissions.

Ginsburg wrote, “I have several times explained why government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’ Among constitutionally permissible options, I remain convinced, ‘those that candidly disclose their consideration of race [are] preferable to those that conceal it.’”

In Shelby County v. Holder, the Voting Rights Act challenge, Ginsburg filed a dissenting opinion that was joined by Stephen G. Breyer, Sotomayor and Kagan. The conservative majority struck down Section 4 of the Voting Rights Act, effectively gutting one of the nation’s most effective tools to curb discrimination against Black voters.

“In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy,” Ginsburg said. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”

Quoting a 1966 decision in South Carolina v. Katzenbach, Ginsburg said, “A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the ‘blight of racial discrimination in voting’ continued to “infec[t] the electoral process in parts of our country.”

The Voting Rights Act directly addressed that infection, Ginsburg stated.

“Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens,” she said. “Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.”