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Justice Ginsburg leaves a ‘nuanced’ court legacy

Justice Ruth Bader Ginsburg

Despite her well-deserved reputation for being an advocate for women’s rights, Justice Ruth Bader Ginsburg’s legacy on the U.S. Supreme Court was, in fact, more nuanced, and she wrote a number of pro-business rulings, experts say.

Justice Ginsburg, who died of pancreatic cancer last week at age 87, was named to the high court by President Clinton in 1993, becoming only the second female justice to serve on the court.

Her better-known decisions include United States v. Virginia, in which she wrote the majority opinion striking down Virginia Military Institute’s male-only policy.

In addition, though she wrote the dissenting opinion in 2006’s Ledbetter v. Goodyear Tire & Rubber Corp., in which the majority ruled against Lilly Ledbetter’s claim of salary inequality because of her sex, the issue led to 2009’s Lilly Ledbetter Fair Pay act.

“It’s inevitable that people just cast her as a liberal,” said Gerald L. Maatman Jr., a partner with the labor and employment practice of Seyfarth Shaw LLP in Chicago, who defends employers.

“It’s a little more nuanced in that she was a brilliant justice” who did not always rule against business in favor of workers.

Instead, “she took a very practical, very intellectual approach to the law.”

Justice Ginsburg, for instance, wrote the unanimous 2011 pro-business ruling in Goodyear Dunlop Tires Operations, S.A. et al. v. Brown et ux., in which the court held that North Carolina residents whose sons died in a bus accident outside Paris, France, could not pursue wrongful damages litigation against the tire company.

“Justice Ginsburg was underappreciated” from business’ perspective, said Kevin LaCroix, executive vice president in Beachwood, Ohio, for RT ProExec, a division of R-T Specialty LLC. “She really had a niche” writing decisions “‘where the issue was procedural rather than substantive.”

Justice Ginsburg, for instance, delivered the court’s unanimous ruling in Digital Realty Trust Inc. v. Somers in February 2018, in which the court ruled whistleblowers are not protected from retaliation under the Dodd-Frank Wall Street Reform and Consumer Protection Act if they only report wrongdoing internally.

Gregory Nevins, senior counsel and director of Lambda Legal’s employment fairness project in Atlanta, said Justice Ginsburg was not anti-business. “She may have been ruling in a way that was not what (business) would have wanted, but she seldom ruled in a way that was really averse to their interests,” he said.

Furthermore, there has been a “pretty fair” acceptance of her antidiscrimination decisions by business, Mr. Nevins said.

However, Scott J. Witlin, a partner with Barnes & Thornburg LLP in Los Angeles, said, “Justice Ginsburg was one of the least business-friendly justices of the current era” and dissented in many big cases, including Ledbetter.

Justice Ginsburg frequently advocated “for aggressive positions on laws that were more narrowly drawn, so she was not successful in persuading” the majority of her colleagues to adopt her position, he said, citing Ledbetter.

However, with her 27 years on the bench, “obviously, she’s going to play an important role in American jurisprudence going forward,” Mr. Witlin said.

Brian Casillas, an associate with Fox Rothschild LLP in Los Angeles, said, “Essentially, she laid the groundwork for dismantling gender discrimination, and this is the issue for which she is most often celebrated.”

Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia who represents employers, said her most recent impactful vote was in Bostock v. Clayton County, Georgia, in which the court held in its 6-3 ruling that under Title VII of the Civil Rights Act of 1964 an employer cannot fire someone “simply for being homosexual or transgender.”

“If her legacy is one of standing up for equal rights and inclusivity and diversity, then Bostock really checks all of those boxes,” even though she did not write the opinion, Mr. Meyer said. 

Referring to decisions including the Virginia Military ruling, Myra L. Maysonet, a partner and chief diversity officer with Greenspan, Marder LLP in Orlando, Florida, who defends corporations in her firm’s labor and employment and class-action defense practice group, said Justice Ginsburg distinguished between “what is right” and “what is legal” in her rulings. Business has come to recognize some of the things she espoused such as diversity, said Ms. Maysonet, who is gay and Hispanic.

Justice Ginsburg “carries a lot of meaning, especially for women attorneys,” Mr. LaCroix said. “For everybody, she was a giant in her field even before” becoming a Supreme Court justice, he said.