Supreme Court Justice, Ruth Bader Ginsburg, believed that things have changed in the Supreme Court and in America and large –and not for the better– in issues of race.
“What is amazing is how things have changed, ” Justice Ginsburg told the National Law Journal concerning issues of race in Ferguson, Missouri and stop and frisk laws in New York. She recalled how, in 1971, a landmark ruling in the Berger court depended on a legal concept known as the “disparate impact” rule when judging cases of racial discrimination. This principle deals with issues that may seem fair on the surface but, on deeper examination, harm minorities.
The case, Griggs v. Duke Power, included “built in headwinds” for minorities involved. The issue dealt with educational requirements for a janitor’s job that could rule out many minority applicants. Ginsburg explained, “It was very influential legislation that was picked up in England. That’s where the court was headed in the 70s.”
However, since then, conservative justices in the Roberts court, according to Ginsburg, have objected to the use of “disparate impact” theory, and the resulting rulings have had implications for minorities and women in the areas of voting rights, affirmative action and reproductive rights. Ginsburg pointed to the Voting Rights Act as a decisive move towards progress in “making people count in democracy.” She lamented a case last year, Shelby County, Ala v. Holder, voted in with a 5-4 majority. Ginsburg wrote a dissenting opinion to the ruling that acknowledged that while discrimination has decreased since the Voting Rights Act of 1965, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing out your umbrella in a rainstorm because you are not getting wet.”
This was in response to Chief John Robert Jr’s opinion that since the Voting Rights Act was passed in 1965, “things have changed dramatically in America.” He and Justice Ginsburg would agree that things have changed, but would disagree about the direction of the changes.
She also expressed concern over the Burwell v. Hobby Lobby decision’s impact on women’s reproductive choices, cases involving school prayer and same sex marriage.