September 21, 2020

Howard A. Learner

In Honor and Memory of Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg is one of my heroes – for her path-breaking public interest legal advocacy, for her leadership as a U.S. Supreme Court Justice, and for her values

Justice Ginsburg’s litigation for women’s rights effectively broke new legal ground in analogous ways to Justice Thurgood Marshall’s and the NAACP Legal Defense Fund’s litigation to advance racial equality.

Ironically, many of Justice Ginsburg’s leading opinions were in dissent. Hopefully, at some point they will become the basis for future majority opinions, or inspire legislation, as Ledbetter v. Goodyear led Congress to pass the Lilly Ledbetter Fair Pay Act of 2009. However, her majority opinions in U.S. v. Virginia (gender rights) and Olmstead v. L.C. (disability rights) were fundamental in advancing important legal principles and social change.

Less well-known is Justice Ginsburg’s leadership on environmental issues. Her majority opinion in Friends of the Earth v. Laidlaw Environmental Services was a high-water mark. The Court recognized citizen standing to seek penalties for water pollution and held that a citizen suit for civil penalties should not be dismissed as moot when the defendant, following the commencement of litigation, has come into compliance with its permit: “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case,” Justice Ginsburg wrote for the Court. “Congress has found that civil penalties in the Clean Water Act cases do more than promise immediate compliance…they also deter future violations.”

Her majority opinion for the Court in AEP v. Connecticut (climate change) limited federal common law actions, but, also, solidified and stabilized the Court’s landmark decision in Massachusetts v. EPA. It created the window for plaintiffs’ state common law litigation for climate action and healthier clean air that took flight in Freeman v. Grain Processing (Iowa Supreme Court) and Bell v. Cheswick (Third Circuit). These issues are now before the courts in the Baltimore, California, New York, and other cases brought against oil companies for their greenhouse gas pollution.

Justice Ginsburg’s values, in addition to those reflected in her public interest litigation and judicial opinions, included maintaining relationships with people with whom she strongly disagreed – such as her famously enjoying opera together with Justice Scalia.

At the Rosh Hashanah service that I attended over the weekend, Rabbi Rachel Weiss wonderfully read Maya Angelou’s great poem “When Great Trees Fall” in memory of Justice Ginsburg’s passing on the eve of Rosh Hashanah. I’d like to share this poignant poem here with you at this moment.

When Great Trees Fall
Maya Angelou

When great trees fall,
rocks on distant hills shudder,
lions hunker down
in tall grasses,
and even elephants
lumber after safety.

When great trees fall
in forests,
small things recoil into silence,
their senses
eroded beyond fear.

When great souls die,
the air around us becomes
light, rare, sterile.
We breathe, briefly.
Our eyes, briefly,
see with
a hurtful clarity.
Our memory, suddenly sharpened,
examines,
gnaws on kind words
unsaid,
promised walks
never taken.

Great souls die and
our reality, bound to
them, takes leave of us.
Our souls,
dependent upon their
nurture,
now shrink, wizened.
Our minds, formed
and informed by the
irradiance, fall away.
We are not so much maddened
as reduced to the unutterable ignorance of
dark, cold
caves.

And when great souls die,
after a period peace blooms,
slowly and always
irregularly. Spaces fill
with a kind of
soothing electric vibration.
Our senses, restored, never
to be the same, whisper to us.
They existed. They existed.
We can be. Be and be
better. For they existed.