Dissenter on the Bench: Ruth Bader Ginsburg's Life & Work

CLARION BOOKS

3 Park Avenue, New York, New York 10016

Copyright © 2019 by Victoria Ortiz

All rights reserved. For information about permission to reproduce selections from this book, write to trade.permissions@hmhco.com or to Permissions, Houghton Mifflin Harcourt Publishing Company, 3 Park Avenue, 19th Floor, New York, New York 10016.

Clarion Books is an imprint of Houghton Mifflin Harcourt Publishing Company.

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Cover art © 2019 by Ellen Duda

Cover photograph © 2019 MCT/Getty Images

Cover design by Sharismar Rodriguez

Title lettering by Ellen Duda

The Library of Congress has cataloged the print edition as follows:

Names: Ortiz, Victoria, 1942–, author.

Title: Dissenter on the bench : Ruth Bader Ginsburg’s life and work /Victoria Ortiz.

Description: New York : Clarion Books, 2019.

Identifiers: LCCN 2018035167 | ISBN 9780544973640 (hardback)

Subjects: LCSH: Ginsburg, Ruth Bader | Judges—United States—Biography. | Women lawyers—United States—Biography. | Dissenting opinions—United States. | United States. Supreme Court—Officials and employees.

Classification: LCC KF8745.G56 O78 2019 | DDC 347.73/2634—dc23

LC record available at https://lccn.loc.gov/2018035167

eISBN 978-1-328-63990-5

v3.1020

To Jen,

whose endless supply of wisdom and patience made this book possible

ONE

A Teen Takes Her Case to the Supreme Court

SAVANA LEE REDDING was an honor-roll student at a middle school in Arizona. She was thirteen years old, a shy girl who liked nothing better than to work on her school projects, read books, and generally keep to herself. Ever since I was little, I loved school, she remembered. I never wanted to miss a day of it.

One October morning in 2003, the school’s assistant principal pulled Savana out of her eighth-grade math class. He took her to his office and questioned her about items the school authorities had discovered in the possession of Marissa Glines, a classmate of Savana’s, items that students were not allowed to have: prescription pills and an unidentified over-the-counter pill. Marissa Glines claimed that Savana had given her the forbidden pills. And another student reported to the assistant principal that Savana was planning to distribute pills to her fellow students at lunchtime that day.

Savana Redding, 2003.

Savana denied ever having such pills, denied ever giving pills to Marissa, and denied ever making plans to distribute pills to other students. Confident because she was telling the truth, Savana agreed to let the assistant principal and an administrative assistant search her backpack. She knew they wouldn’t find any pills. And indeed, they found no forbidden items in her backpack.

This was not the end of the story, however. The school authorities had only the unsupported accusations of two fellow students against Savana, the honor-roll student who had no disciplinary marks on her record. Even so, the assistant principal told the administrative assistant to take Savana to the nurse’s office. He instructed the two women, the assistant and the nurse, to search Savana’s clothing for the contraband pills. Now Savana was getting nervous, even though she had no pills on her. She was feeling pressured and helpless. In her words, I didn’t have an option. I was a little kid. I didn’t have any idea how it would be handled.

Savana felt increasingly uncomfortable. The two school employees had her take off her jacket, socks, and shoes and found nothing incriminating. Then they ordered her to take off her black stretch pants with butterfly patches and her pink T-shirt. She complied reluctantly, and they found no pills in the seams of her garments. Then they asked me to pull my bra out and to the side and shake it, exposing my breasts, she recalled. Then they asked me to pull out my underwear and shake it. They also told me to pull the underwear out at the crotch and shake it, exposing my pelvic area. I was embarrassed and scared, but I felt I would be in more trouble if I did not do what they asked. I held my head down so that they could not see that I was about to cry.

Savana was told she could put her clothes back on, but she was not allowed to call her mother or return to her class. Instead, even after the assistant principal had been informed that no pills had been found, she was forced to sit outside his office for two and a half hours, in full view of any student or teacher who might pass by.

Savana couldn’t tell her mother about what had happened until the end of the school day, when she went out to the car where her mother was waiting as she did every day to pick Savana up and take her home. Years later, Savana’s mother, April Redding, wept at the memory of the helplessness she felt when she learned what had been done to her young daughter. When Savana came out, she was very withdrawn. She came into the vehicle not wanting to look at me. Crying. The school authorities never explained their actions to Savana or her mother, and they never apologized for putting her through the traumatizing strip search of her clothing and body.

This experience was so devastating for Savana that she never returned to her school. She was heartbroken. School had always been my safe place, she said later. I loved school so much, and that’s where I always felt the most loved by teachers and friends. I was always the really nice girl who was kind to everyone. I did all my assignments, made the Honor Roll and principal’s Gold List every semester, and was well liked by the teachers.

Deeply angered by what had been done to her daughter, Savana’s mother decided to fight against the intrusive school policy. First, Savana and her mom had to get legal help. They found it with the local Arizona chapter of the American Civil Liberties Union. The ACLU, as it is known, is a national organization that provides legal representation for people or groups whose constitutional rights and civil liberties have been threatened or violated by the government or some official agency. Savana and her mother began their lawsuit in federal district court. This is the trial-court level in the federal judiciary, which is the system that handles both criminal and civil cases under federal law.

In a federal civil case, an individual who believes she has been wronged because her constitutional rights have been violated can bring a lawsuit against a government official or an organization or a business entity. In a federal criminal case, a U.S. attorney, or federal prosecutor, files criminal charges against an individual or entity for allegedly violating a federal criminal statute, such as the one prohibiting counterfeiting. Federal civil cases involve matters governed by federal civil laws or the Constitution. Savana’s case was a civil case against the school district that involved constitutional issues.

In the federal district court, Adam Wolf, Savana’s attorney, argued that the school authorities had violated his young client’s Fourth Amendment rights. This amendment of the U.S. Constitution guarantees the right to be free from unreasonable search and seizure by government agents, including public school employees. The attorney specifically argued that the unwarranted strip search of the thirteen-year-old honor student was unreasonable and illegal.

In preparing for this first stage of the legal process, Savana had to give an affidavit—a sworn statement—about the facts of the case. Throughout the months following the ordeal she had endured at her school, Savana had to repeat over and over again, in different settings and to different people—all of them strangers to her—the details of the ugly, humiliating strip-search incident. Even though this was very difficult for her and she would not be personally affected if she lost, Savana was determined to see her lawsuit through to the end. It’s more about other kids, she said. I really don’t want this to happen again. Ever.

Savana Redding, 2005.

Savana lost her case at the first level, the trial court, or district court. She appealed to a higher court, the Ninth Circuit Court of Appeals—the intermediate court, which is directly below the U.S. Supreme Court—for her circuit, or region. The federal courts are divided into twelve regional circuits, each representing a different geographical area of the nation. (There is also the Federal Circuit Court of Appeals, which can hear appeals from any part of the country. These cases involve international trade, patents and trademarks, and veterans’ benefits, among others.) For example, the Ninth Circuit encompasses Alaska, Washington, Oregon, Idaho, Nevada, Arizona, Montana, and California. Each circuit contains a number of lower courts called district courts, where trials take place. Each circuit is headed up by a court of appeals, which is where losing parties may take their disappointment and appeal the district court’s decision. If a case is lost at the circuit appeal level, the losing party can petition the U.S. Supreme Court to hear a further appeal. Each year (called a term), that highest court in the land, the court of last resort, receives thousands of petitions for further appeal. However, the Supreme Court will take on fewer than one hundred cases per term.

In the Ninth Circuit Court of Appeals, Savana initially lost before a three-judge panel. Luckily, she got a second chance to appeal, this time to the appeals court sitting en banc, which meant her case would be heard by a larger group of judges, including the original three. Although they did not all agree, a majority of the judges who heard Savana’s appeal thought her arguments were stronger than those of the school authorities. The court ruled that she had convincingly shown that the search of her clothes and body had violated her Fourth Amendment rights.

But the school authorities would not let it rest. They appealed this decision to the U.S. Supreme Court. The Supreme Court has the ultimate say on whether or not a person’s rights have been violated, so this was the last possible place for Savana’s lawyer to present his argument and hope for a final favorable decision. The lawyer would be assigned a date to deliver his best argument in support of Savana’s claim that the school authorities had violated her constitutional rights.

On April 21, 2009, Savana and her mother sat in the courtroom of the U.S. Supreme Court in Washington, D.C. For Savana, the experience was, she recalled, overwhelming. Because she was a party in the case, which was called Safford Unified School District v. Redding, she and her mom did not have to wait in line with the general public. This was a good thing, since hundreds of people were waiting for seats that day. Many were turned away after all the available seats were filled. But the Reddings were able to go right to the special seats reserved for the people directly involved in that morning’s cases.

Facing Savana and her team as they sat waiting for oral arguments to begin was the impressive wooden bench—not really a bench, but rather a raised platform with a long, slightly curved mahogany desk behind which the nine Supreme Court justices would sit. These nine women and men are called justices to distinguish them from the judges in all the different types of local, state, and federal courts below them.

The raised bench, flanked by two American flags, was slightly higher than the public seating area and separated from it by a low wooden partition with a gate. Behind the justices’ nine chairs were four white marble columns. The south and north walls were also marble, with sculpted friezes showing great historical lawgivers (Moses, Solomon, Confucius, Muhammad, Charlemagne, Napoleon, and John Marshall, among them) and allegorical figures such as Authority, Light of Wisdom, and Equity.

Savana’s lawyer had described the setting and participants to her ahead of time. She knew that the person seated to the far right of the bench was the Supreme Court marshal, who was in charge of maintaining order and decorum in the courtroom. Almost on the dot of ten that morning, Savana watched as the marshal stood up and raised the gavel she held in her hand. Savana was expecting the very formal opening of the session as the nine justices, including Justice Ruth Bader Ginsburg, entered. Everyone stood when they heard the bang of the gavel, and the marshal said loudly:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!

Supreme Court Justice Ruth Bader Ginsburg was born Joan Ruth Bader on March 15, 1933, a few days after Franklin Delano Roosevelt, known as FDR, was sworn in as the thirty-second president of the United States. This year was the worst of the Great Depression, a period when one in four Americans was unemployed. Across the Atlantic Ocean, shortly before Ruth was born, Adolf Hitler had been appointed the German chancellor of the Third Reich, ushering in the horrors of Nazism. A week after Joan Ruth’s birth, the first concentration camp in Germany was established—Dachau. These camps, also known as extermination camps, were brutal, deadly places where the Nazis sent the men, women, and children whom they classified as enemies: Jews, Romani people (referred to as Gypsies), gays, and Jehovah’s Witnesses, among others.

Joan Ruth Bader lived with her parents and older sister, Marilyn, in a modest apartment in Flatbush, a working-class neighborhood in Brooklyn, New York. Tragically, Marilyn died of meningitis when she was almost seven years old and Joan Ruth was not yet two. Essentially, Ruth grew up as an only child.

The two-family house the Bader family lived in was within walking distance of some of their closest relatives and of the public elementary and high schools Ruth would attend. When she started at Public School 238, which she attended from first grade through eighth grade, her parents learned that there were two other girls named Joan Ruth in her class and changed their daughter’s name from Joan Ruth to Ruth Joan. The Baders’ Flatbush neighborhood was lively, with Italian, Irish, and Jewish families living and working and playing side by side. Ruth’s classmates and friends represented all three of these groups, making for a very rich social education for her and her peers.

Joan Ruth Bader, age two.

Until Ruth was four, her aunt, uncle, and little cousin Richard shared her family’s apartment in a two-story gray building at 1584 East Ninth Street, a quiet street lined with trees. Richard was Ruth’s double cousin: his mother, Beatrice, and Ruth’s mother, Celia, were sisters; his father, Benjamin, and Ruth’s father, Nathan,