Fear the Frill: Ruth Bader Ginsburg and the Uncertain Futurity of Feminist Judicial Dissent

Abstract

Inspired by Robert Ivie's notion of democratic dissent as “limited nonconformity,” this essay examines the institutional grounding of judicial dissents, focusing specifically on Ruth Bader Ginsburg's dissenting opinion in Burwell v. Hobby Lobby. I argue that the genre of judicial dissent, both of the law and in excess of the law, operates as a supplement to the judicial system that legitimates and reinforces its institutional structure even as individual dissents may challenge majority opinions. I also consider the ways that Ginsburg's text and image have been deployed by reproductive rights advocates and Hobby Lobby protestors in the immediate aftermath of the decision, suggesting that the rhetorical and political excess of Ginsburg's dissent produces new opportunities for invention beyond the institutional constraints of the law.

Keywords:

• Burwell v. Hobby Lobby
• Feminism
• Judicial Dissent
• Reproductive Rights
• Ruth Bader Ginsburg

The author thanks Kendall Phillips and Peter Odell Campbell for the conversations that stimulated the development of this essay.

The author thanks Kendall Phillips and Peter Odell Campbell for the conversations that stimulated the development of this essay.

Notes

[1] Ruth Bader Ginsburg, dissenting, Burwell v. Hobby Lobby 573 U.S. ____ (2014), 1.

[2] Robert L. Ivie, “Enabling Democratic Dissent,” Quarterly Journal of Speech 101, no. 1 (2015): 46–59.

[3] Ivie, “Enabling,” 51.

[4] J. Louis Campbell, III, “The Spirit of Dissent,” Judicature 66 (1982–1983): 306.

[5] Ivie, “Enabling,” 47.

[6] Ivie, “Enabling,” 49.

[7] Ginsburg, Burwell v Hobby Lobby, 13.

[8] Alanna Vagianos, “Ruth Bader Ginsburg's Hobby Lobby Dissent Is Already a Song,” The Huffington Post, July 1, 2014, http://www.huffingtonpost.com/2014/07/01/ruth-bader-ginsberg-dissent-song_n_5547310.html; Elias Isquith, “Here Are the Highlights of Justice Ginsburg's Fiery Hobby Lobby Dissent,” Salon, 30 June 2014, http://www.salon.com/2014/06/30/here_are_the_highlights_of_justice_ginsburgs_fiery_hobby_lobby_dissent/; Janet Allon, “10 Blistering Highlights from Justice Ruth Bader Ginsburg's Hobby Lobby Dissent,” AlterNet, July 1, 2014, http://www.alternet.org/civil-liberties/10-blistering-highlights-justice-ruth-bader-ginsburgs-hobby-lobby-dissent; Nia-Malika Henderson, “How Justice Ginsburg's Hobby Lobby Dissent Helps Shape the Debate about Reproductive vs. Religious Rights,” Washington Post, July 1, 2014, http://www.washingtonpost.com/blogs/she-the-people/wp/2014/07/01/how-justice-ginsburgs-hobby-lobby-dissent-helps-shape-the-debate-about-reproductive-and-religious-rights/.

[9] Ginsburg, Burwell v Hobby Lobby, 23.

[10] Ginsburg, Burwell v Hobby Lobby, 22.

[11] Ginsburg, Burwell v Hobby Lobby, 25.

[12] Ginsburg, Burwell v Hobby Lobby, 32.

[13] Ginsburg, Burwell v Hobby Lobby, 34–35.

[14] Ginsburg, qtd. in Nichola Gutgold, “Ruth Bader Ginsburg: Cautiously Communicative,” Communication Currents 5, no. 5 (2010), http://www.natcom.org/CommCurrentsArticle.aspx?id=995. Notably, Ginsburg has read dissents from the bench in previous cases pertaining to women's reproductive rights and equal pay in Gonzales v. Carhart and Ledbetter v. Goodyear Tire & Rubber Co., respectively.

[15] Jeff Bleich, Michelle Friedland, Aimee Feinberg, and Dan Bress, “Dissenting from the Bench,” Oregon State Bar Bulletin, October 2008, https://www.osbar.org/publications/bulletin/08oct/dissenting.html.

[16] Katie L. Gibson, “In Defense of Women's Rights: A Rhetorical Analysis of Judicial Dissent,” Women's Studies in Communication 35, no. 2 (2012): 125; Robert A. Ferguson, “The Judicial Opinion as Literary Genre,” Yale Journal of Law and the Humanities 2, no. 1 (2013): 204.

[17] Robert Rubinson, “The Polyphonic Courtroom: Expanding the Possibilities of Judicial Discourse,” Dickinson Law Review 101, no. 1 (1996): 4.

[18] Ferguson, “The Judicial Opinion,” 202.

[19] Catherine L. Langford, “Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars,” Communication Law Review 9, no. 2 (2009): 2.

[20] Langford, “Toward a Genre,” 2.

[21] Kristine M. Bartanen, “The Rhetoric of Dissent in Justice O'Connor's Akron Opinion,” Southern Speech Communication Journal 52, no. 3 (1987): 245.

[22] Gerald B. Wetlaufer, “Rhetoric and Its Denial in Legal Discourse,” Virginia Law Review 76, no. 8 (1990): 1555, 1563.

[23] Gibson, “In Defense of Women's Rights,” 124.

[24] Gibson, “In Defense of Women's Rights,” 135.

[25] Hunter Smith, “Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion,” Yale Journal of Law and the Humanities 24, no. 2 (2013): 508.

[26] Evan A. Evans, “The Dissenting Opinion—Its Use and Abuse,” Missouri Law Review 3, no. 2 (1938): 123; Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Belknap Press, 1993): 343.

[27] Evans, “The Dissenting Opinion,” 122–24.

[28] W.A. Bowen, “Dissenting Opinions,” Green Bag 17 (1905): 690; Smith, “Personal and Official Authority,” 519.

[29] William J. Brennan, Jr., “In Defense of Dissents,” Hastings Law Journal 37 (1986): 429; Evans, “The Dissenting Opinion,” 125.

[30] Smith, “Personal and Official Authority,” 523.

[31] William O. Douglas, “The Dissent: A Safeguard of Democracy,” Journal of the American Judicature Society 32 (1948–49): 105.

[32] Brennan, “In Defense of Dissents,” 430; Clarke Rountree, “Instantiating ‘The Law’ and its Dissents in Korematsu v. United States: A Dramatistic Analysis of Judicial Discourse,” Quarterly Journal of Speech 87, no. 1 (2001): 20.

[33] Brennan, “In Defense of Dissents,” 431–32.

[34] Campbell, “The Spirit of Dissent,” 306.

[35] Smith, “Personal and Official Authority,” 532; Campbell, “The Spirit of Dissent,” 311.

[36] Campbell, “The Spirit of Dissent,” 306.

[37] Campbell, “The Spirit of Dissent,” 307, 311; emphasis added.

[38] Bartanen, “The Rhetoric of Dissent,” 261.

[39] Bartanen, “The Rhetoric of Dissent,” 244; Chief Justice Hughes qtd. in Bartanen, “The Rhetoric of Dissent,” 244.

[40] Bartanen, “The Rhetoric of Dissent,” 247.

[41] Bartanen, “The Rhetoric of Dissent,” 261.

[42] Allon, “10 Blistering Highlights”; Dana Liebelson, “The 8 Best Lines from Ginsburg's Dissent on the Hobby Lobby Contraception Decision,” Mother Jones, 30 June 2014, http://www.motherjones.com/politics/2014/06/best-lines-hobby-lobby-decision.

[43] Rebecca Traister, “How Ruth Bader Ginsburg Became the Most Popular Woman on the Internet: Web Culture's Revolutionary Celebration of Powerful Female Leaders,” New Republic, 10 July 2014, http://www.newrepublic.com/article/118641/ruth-bader-ginsburg-memes-how-internet-fell-love-her.

[44] Jonathan Mann, “Ginsburg's Hobby Lobby Dissent,” YouTube video, June 30, 2014, https://www.youtube.com/watch?v=GY1TJ8JazkQ

[45] “Feminist Pamphlets Shop-Dropped at Hobby Lobby Stores across United States of America,” The Feminist Archive, July 18, 2014, http://www.feministarchive.org/.

[46] Fred Lucas, “Activists Hand Out Condoms at Hobby Lobby to Protest Supreme Court Decision—Their Profession Though Might Surprise You,” The Blaze, July 4, 2014, http://www.theblaze.com/stories/2014/07/04/activists-hand-out-condoms-at-hobby-lobby-to-protest-supreme-court-decision-their-profession-though-might-surprise-you/; Tara Culp-Ressler, “The Most Creative Ways that People Are Protesting the Hobby Lobby Ruling,” Think Progress, July 10, 2014, http://thinkprogress.org/health/2014/07/10/3458726/creative-hobby-lobby-protests/.

[47] Eileen Reynolds, “How an 81-Year-Old Supreme Court Justice Became an Unlikely Pop Culture Icon,” Business Insider, July 30, 2014, http://www.businessinsider.com/ruth-bader-ginsburg-is-unlikely-pop-culture-icon-2014-7#ixzz3AHk7O88H.

[48] Hallie Jay Pope, Unholy Adventures: Sporadic Comics by Hallie Jay Pope, www.unholyadventures.com.

[49] Reynolds, “How an 81-Year-Old.”

[50] Katie Couric, “Exclusive: Ruth Bader Ginsburg on Hobby Lobby Dissent,” Yahoo! News, http://news.yahoo.com/katie-couric-interviews-ruth-bader-ginsburg-185027624.html.

[51] Traister, “How Ruth Bader Ginsberg.”

[52] Campbell, “The Spirit of Dissent,” 312.

[53] Ivie, “Enabling,” 50.

[54] Ivie, “Enabling,” 50.

[55] David Cole, “Agon at Agora: Creative Misreadings in the First Amendment Tradition,” Yale Law Journal 95 (1986): 866.

[56] Couric, “Exclusive.”

[57] Ginsburg, interview with Nina Totenberg, National Public Radio, May 2, 2002.