Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg

In Season 2, Episode 1 of Notorious, we explore Justice Ginsburg's influence on overcriminalization in our justice system. Specifically, we discuss the broad statutes passed by Congress, the latitude afforded to prosecutors under these statutes, judicial interpretations of the law and the possibility that strict literalism in interpretation can lead to unintended results.

We analyze the cases of Cleveland v. United States, Skilling v. United States, Yates v. United States, as well as Justice Ginsburg's dissent in Pasquantino v. United States. We conclude the episode discussing Justice Ginsburg's doctrinal views with respect to overcriminalization and scrutinize the role Congress must play in amending such laws when vagueness and ambiguities in statutory language are laid bare.

Patterson Belknap Partners Michelle Bufano, Lauren Schorr Potter, and Harry Sandick discuss Justice Ginsburg's legacy on this issue.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Michelle Bufano

Lauren Schorr Potter

Harry Sandick

We're back, with a new season of Notorious, continuing our discussions of the late Justice Ruth Bader Ginsburg's notable decisions and dissents. Season Two will air for six consecutive days beginning Monday, September 13th, with our final episode airing on Saturday, September 18th—the one year anniversary of Justice Ginsburg's passing.

Featuring guest speaker, Mai Ratakonda of Planned Parenthood Federation of America.

In Episode 12 of Notorious, we discussed the case of Whole Woman's Health v. Hellerstedt, which addressed issues related to reproductive freedom.

At issue was a Texas Law that placed restrictions on physicians and facilities performing abortions. As a result, the U.S. Supreme Court considered whether the provisions violated the Due Process Clause of the 14th Amendment.

Writing for the majority, Justice Breyer, joined by Justices Ginsburg, Kennedy, Sotomayor, and Kagan, highlighted a balancing test. The articulated balancing test considered whether the government purposes of the law at issue outweighed the burden placed on substantive due process rights. Here, the majority found that the law imposed an undue burden on abortion access.

While joining in the majority opinion, Justice Ginsburg also wrote a concurring opinion. In her concurrence, Justice Ginsburg bluntly stated: "[I]t is beyond rational belief that . . . [the law at issue] could genuinely protect the health of women."

Mai Ratakonda, of Planned Parenthood Federation of America, joined by Patterson Belknap attorneys, Michelle Bufano and Amy Vegari, discuss this case and Justice Ginsburg's fight for reproductive freedom.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Mai Ratakonda

Michelle Bufano

Amy Vegari

In Episode 11 of Notorious, we discussed the case of Craig v. Boren, in which Ruth Bader Ginsberg, an attorney for the ACLU, helped shape a new level of judicial review in gender discrimination cases, appearing as amicus curiae.

In addressing Oklahoma laws that prevented young men, but not young women, from consuming low alcohol-content beer, the United States Supreme Court held that the gender classifications at issue were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. In making that determination, the Court found that the statistics relied on by the state were insufficient to show a substantial relationship between the statute and the benefits intended to stem from it. As a result, the Court instituted a new standard of judicial review, "intermediate scrutiny" under which: (1) the state must prove the existence of specific important governmental objectives; and (2) the law must be substantially related to the achievement of those objectives.

Justice Ginsberg, who would not join the Supreme Court, until 17 years later, influenced the outcome as an ACLU lawyer, appearing as amicus curiae, or a friend of the Court. Ginsburg advocated on behalf of the male petitioner, arguing for striking down a law that discriminated against young men.

Patterson Belknap attorneys, Michelle Bufano, Alejandro Cruz and Patricia Kim discuss this case and Justice Ginsburg's long legacy of fighting for equality for all.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Michelle Bufano

Alejandro Cruz

Patricia Kim

Featuring Guest Speaker, Professor Rick Hasen of the University of California, Irvine.

In Episode 10 of Notorious, we discussed the case of Bush v. Gore, which involved one of the closest presidential elections in United States history at that time. This case concerned the 2000 presidential election between George W. Bush and Al Gore. After Gore won the popular vote, the election's outcome was contingent upon Florida and its twenty-five electoral votes. After Gore requested a recount of votes, the Florida Supreme Court held that the recount procedures were constitutional.

In a per curium opinion, the United States Supreme Court reversed the Florida Supreme Court, holding that the scheme for recounting ballots was unconstitutional. The Court found that even if the recount was fair in theory, it was unfair in practice because the factual record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Therefore, the scheme violated the Equal Protection Clause of the Fourteenth Amendment. Thus, with this decision, Bush became the first president since Benjamin Harris in 1888 to lose the popular vote but win the general election.

Justices Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. This is one of the rare occasions where Justice Ginsburg rejected an Equal Protection Clause argument in one of her opinions.

Professor Rick Hasen, of the University of California, Irvine, joined by Patterson Belknap attorneys, Michelle Bufano and Alejandro Cruz, discuss this case and Justice Ginsburg's unique take on federalism over the Equal Protection Clause.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Rick Hasen

Michelle Bufano

Alejandro Cruz

In Episode 9 of Notorious, we discussed a series of cases related to criminal sentencing, including: Apprendi v. New Jersey, United States v. Booker, and Kimbrough v. United States.

Justice Ginsburg's contributions to our country's jurisprudence focus heavily on equality. Although less discussed, her criminal procedure jurisprudence expresses her commitment to fairness and equality.

The area of criminal procedure where this dedication to fairness is particularly evident is in sentencing. She tended to be the critical swing vote in some of these cases. We also see how her commitment to fairness was marked by a simultaneous commitment to gradualism -- the same as we have seen in many of her opinions on other topics, including gender equality.

Patterson Belknap Partners, Peter Harvey, former Attorney General of the State of New Jersey, and Harry Sandick, a former Assistant United States Attorney for the Southern District of New York, are joined by Michelle Bufano for a discussion of these cases and the concept of fairness in sentencing.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Peter Harvey

Harry Sandick

Michelle Bufano

Featuring guest speaker, Joshua Block of the American Civil Liberties Union.

In Episode 8 of Notorious, we discuss the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The U.S. Supreme Court addressed whether the actions of the Colorado Civil Rights Commission (CCRC), under the Colorado Anti-Discrimination Act, in assessing a cakeshop owner's reasons for declining to make a cake for a same-sex couple's wedding celebration, violated the Free Exercise Clause of the First Amendment of the U.S. Constitution.

In a 7-2 opinion by Justice Kennedy, the Court reversed the CCRC's decision. The Court narrowly ruled that the CCRC did not employ religious neutrality and violated the bakery owner's right to free exercise of religion. The Court declined to decide the broader issues of the intersection of anti-discrimination laws, free exercise of religion, and freedom of speech.

Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. Strongly disagreeing with the outcome of the majority, Justice Ginsburg argued, "When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding ― not a cake celebrating heterosexual weddings or same-sex weddings ― and that is the service [the couple] were denied."

Joshua Block, a senior staff attorney with the National ACLU's Lesbian Gay Bisexual Transgender & HIV Projects, joined by Patterson Belknap attorneys, Michelle Bufano, Jonah Knobler and Elena Steiger Reich, discuss the different views expressed by the majority and dissent.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

Related People:

Joshua Block

Michelle Bufano

Jonah Knobler

Elena Steiger Reich

Featuring guest speakers, Kerry Abrams, Guy-Uriel Charles, and Neil Siegel of Duke University School of Law.

In Episode 7 of Notorious, we discuss the case of Shelby County v. Holder. The U.S. Supreme Court addressed the constitutionality of two provisions of the Voting Rights Act of 1965. The provisions at issue were Section 5, which requires certain states and local governments to receive federal preclearance prior to implementing changes to their voting laws or practices; and Section 4(b), which provides the coverage formula for determining which state and local governments are subjected to preclearance due to histories of discrimination in voting.

The Court ruled by a 5-to-4 vote that Section 4(b) was unconstitutional. Writing the Court's opinion, Chief Justice Roberts found that because the coverage formula was based on outdated data, it was no longer responsive to current needs; therefore, the coverage formula was an impermissible burden on the constitutional principles of federalism and state sovereignty. Although the Court did not strike down Section 5, it was essentially rendered moot without the enactment of a new coverage formula by Congress.

Justice Ginsburg wrote a blistering dissent, joined by Justices Breyer, Sotomayor and Kagan, which she uncharacteristically delivered from the bench. Notably, the dissent reasoned: "The sad irony of today's decision lies in its utter failure to grasp why the [Voting Rights Act] has proven effective ... Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

Kerry Abrams, James B. Duke and Benjamin N. Duke Dean of the School of Law, Duke University School of Law, joined by Duke Law professors, Guy-Uriel Charles and Neil Siegel, and Patterson Belknap associate and Duke Law alumnus, Hyatt Howard, discuss the different views expressed by the majority and dissent, as well as the history of voting rights and discrimination in the United States.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.

*Abraham Lincoln, May 26, 1856

Featuring guest speaker, the Honorable Helen E. Freedman (Ret.), who served 36 years on the New York State Court bench.

In Episode 6 of Notorious, we discuss the case of Daimler A.G. v. Bauman. This case addressed the issue of personal jurisdiction. A German corporation, Daimler A.G., was being sued in California federal court for injuries allegedly caused by Daimler's conduct that took place entirely outside the United States.

Writing for an 8-1 majority of the U.S. Supreme Court, Justice Ginsburg determined that the California court could not exercise personal jurisdiction predicated on the California contacts of an American subsidiary of Daimler. The Court found that doing so would violate the limits imposed by federal due process. Justice Sotomayor filed a separate opinion, concurring in judgment.

The Honorable Helen E. Freedman (Ret.), who served for 36 years on the New York State Court bench, joined by Patterson Belknap attorneys Michelle Bufano, Rachel Sherman, and Tom Kurland, discuss the Court's prior decisions on personal jurisdiction, Justice Ginsburg's majority opinion, and the impact of her legal legacy on personal jurisdiction jurisprudence.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Related People:

Honorable Helen E. Freedman (Ret.)

Michelle Bufano

Rachel Sherman

Tom Kurland

In Episode 5 of Notorious, we mix up the format a bit and discuss the Establishment Clause of the First Amendment in the context of several cases. No issue under the Establishment Clause reached the U.S. Supreme Court until 1947. Thus, our discussion starts with Everson v. Board of Education, a landmark decision that applied the Establishment Clause in the country's Bill of Rights to state law. We conclude with an analysis Justice Ginsburg's dissent in the 2019 case of American Legion v. American Humanist Association.

Notably, Justice Ginsburg believed in a strict separation between Church and State. Her view in this regard is reflected repeatedly in her dissents, even as her view was increasingly rejected by a majority of the Court, which permitted the states more latitude in supporting religious institutions.

Sandra S. Baron, Visiting Clinical Lecturer in Law at Yale Law School, joined by Patterson Belknap attorneys Michelle Bufano and Greg Diskant, discuss the history of the Establishment Clause, Justice Ginsburg's dissents on this topic and the impact of her legal legacy on future Establishment Clause jurisprudence.

Related Resources:

For a selection of Justice Ginsburg's writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see www.pbwt.com.

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Related People:

Sandra S. Baron

Michelle Bufano

Greg Diskant