The RBG Manual: Fiery Dissents, Strong Listening, Persuasive Writing

The RBG Manual: Fiery Dissents, Strong Listening, Persuasive Writing

1.20.2021

By Brandon Vogel

She was not a commercial litigator, but Ruth Bader Ginsburg instead brought a particular type of litigator experience to the Supreme Court.

It was her unique way of persuading people by connecting them to the type of wrong she tried to get the court to address.

Often, this involved using male plaintiffs in her cases, because she knew that would indeed persuade the male members of the Supreme Court to see the law how she saw the law.

“And so she, I think, brought to that court that understanding that we have to move with the direction of the realities of the life, lived by the people in our country and in our world and respond to the injustices that we see that the law should be fair,” said Hon. Jenny Rivera, senior associate judge of the Court of Appeals.

Rivera and moderator Hon. Cheryl E. Chambers, associate justice of the Appellate Division, Second Department, examined Ginsburg’s legacy and wisdom at the Constance Baker Motley symposium, “I am Woman, Hear Me Roar: The Legacy of Ruth Bader Ginsburg.” Chambers received the inaugural Ruth Bader Ginsburg Beacon Award during the event; Hon. Tanya R. Kennedy, associate justice, Appellate Division, First Department, won the John E. Higgins, Esq. Diversity Trailblazer Award.

A cautious approach

Rivera noted that Ginsburg took an incremental approach to change. This was not an accident.

“What appeared farfetched at the beginning is something that every, or the majority, if not everyone, the majority now views as well-established and not controversial as it did when you started,” said Rivera. “What an incrementalist does is eventually they wear you down because they’re chipping away slowly but surely.”

Rivera said some people like the “sledgehammer approach” because “we find that moving too slowly means that there’s just too much harm.” But chipping away, as Ginsburg and Thurgood Marshall saw it, is “what gets you the long lasting grounded approach that is fundamental and will not be easy to subvert in the future.”

According to Rivera, Judge Ginsburg’s life was about proving that people cannot assume that women can’t do certain things. “Women can do anything. Some women can do things that men cannot, and some men can do things that some women cannot. We have to start in the place that people can.”

Rivera recalled Ginsburg’s close friendship with her political polar opposite Justice Antonin Scalia as the epitome of her life’s work, with both of them trying to persuade the other.

“I think one of the lessons in, in that case is that we can strongly disagree with someone about fundamental views of the law and of life, right?,” said Rivera. “She could find her way just as he could to be friends and to look, be on those differences of opinions. We can disagree, but we don’t have to be disagreeable.”

Fierce dissents

This became more important after Sandra Day O’Connor retired in 2006 and Justice Ginsburg suddenly became the dissenter. Ginsburg became famous for her sharp dissents in the years that followed.

Her most notable dissent was in Ledbetter v. Goodyear Tire & Rubber Co., an employment discrimination case brought before the Supreme Court.

Rivera said this is a “great case” to really appreciate the wisdom, as well as the philosophical approach of Justice Ginsburg in her writings.

“As she says in her writing, women, especially given their position historically in the workplace, this subjugated position, the workplace, and because pay right wages and what people make is usually hidden,” said Rivera. “She’s saying ‘I live in the real world and, and my fellow members of this court should do the same.’ It is trying to get Congress recognizing the cultural shift that has to occur, that will not occur voluntarily. We’ve got to get our people there to ensure there’s equity.”

Chambers said, “I love that decision.  And really she accused those eight male justices of being totally indifferent to gender pay gaps.”

Ginsburg’s fiery dissent in Shelby County v. Holder, the landmark case that gutted the Voting Rights Act of 1965 earned her the moniker “Notorious RBG.”

Rivera noted her masterful writing, particularly her command of the record and the evidence, in the dissent, “And here’s the killer sentence, which closes this section of our writing: hubris is a fit word for today’s demolition of the VRA. Yes, that’s where you get the notorious part of it. But that only comes like on page 18 of this dissent.”

Chambers asked Rivera if she wrestles with selecting the right words, particularly when writing a dissent. “Often,” Rivera said. She added that she sometimes spends 90 minutes on one paragraph, particularly on dissents.

“Once it’s public, it’s out there. The best I can do is explain it if someone asks me about it in an appropriate context,” said Rivera. “But I’ve got to live and, frankly, I’ve got to die with every word that I write. I’ve made a choice of trying to be thoughtful about it.”

Chambers said that in the Appellate Division, “We’re writing for judges and we want to make sure that they fully appreciate what we’re saying. We support it, even if they disagree. It’s important for them to understand that you have analyzed all the arguments and presented your opinion or decision clearly.”

Rivera recalled how Justice Sandra Day O’Connor said she learned from Justice Thurgood Marshall because he brought his experience on race issues into conversations. She said that this is what happens on a collegial court.

Rivera said she has employed the same listening skills when the Court of Appeals judges are in conference or on the bench. “I am trying to understand the way they view a case. It may not be the way I view a case. They may persuade me or they may not, but I have a better sense of where they are. And I think that serves me well.”

She said that while she and fellow Court of Appeals Judge Michael Garcia are both Latinos, they have different experiences. “It’s not to judge it and call one better than the other. It’s just different. We’re different people just as there are three females in the court, three of us are different people. We share some commonalities, but we’re different people.”

Rivera said, “I will say this: The first and primary role is the same role of every other member of the court, which is to be judged on the strengths of my arguments in my writing, and to bring, to bear in every issue and on every appeal, my best to bring an informed, robust analysis in every case.”

Rivera concluded: “We have to ensure even in the smallest way that we carry the RBG manual.”’