Justice Ruth Bader Ginsburg, the second woman in the history of the United States to be appointed to the US Supreme Court, and at times the lone female voice on the bench, died this past Friday, 18 September, from complications related to pancreatic cancer, a disease she has fought in various forms for almost two decades. Though as Catholics we might question Ginsburg’s opinion on abortion, Grant Tungay, a Jesuit and a human rights lawyer, reminds us of her remarkable life and her constant fight for justice and what the Church can still learn from her presence on the bench.
America mourns the loss of a legal giant in Justice Ruth Bader Ginsburg, who became a cultural icon and earned the title, “Notorious RBG” in recent years. We must applaud Ginsburg for her singular and courageous representation of minority interests throughout her career, whether in her fight for equality between men and women of all races or her defense of the rights of parents — not to mention her resilience in personal matters.
When Ginsburg’s husband, Martin Ginsburg, received radiation treatment for an aggressive and rare form of testicular cancer during his third year at Harvard Law School, he could not attend classes. Ginsburg was a year behind her husband at Harvard. But she decided that aside from attending her classes, studying and caring for their toddler daughter and her gravely ill husband, she would also serve as a scribe for her husband and type up his notes and essays so that he wouldn’t fall behind.
Were it not achievement enough for Ginsburg to keep up her responsibilities to her family and studies at that time, she also became the first woman to be appointed to the prestigious Harvard Law Review. She would later become the first woman to serve on two prestigious law reviews, joining the equally lauded Columbia Law Review after being forced to end her studies at Harvard when her husband got a job in New York after graduation. Ginsburg transferred to Columbia Law School, where she graduated joint top of her class.
When Ginsburg joined the hallowed Harvard Law School in 1956, there were only nine women in her class of about 500 men, and no women on the teaching staff. In interviews throughout her career, she admitted that the discrimination faced as a woman at Harvard Law School had impelled her life’s dedication to women’s rights and equality across American society. In a 2009 interview Ginsburg told USA Today that “Women belong in all places where decisions are being made”, she said. “It shouldn’t be that women are the exception.”
When the American Civil Liberties Union created a Women’s Rights Project in 1972, Ginsburg chose to challenge cases as a litigator, arguing first for the rights of men who were victims of government discrimination. She argued and won five precedent-setting Supreme Court cases, subsequently using the precedents she set to fight tirelessly for the equal treatment of all people. At times, it appeared that Ginsburg resented being seen as someone who stood only for women’s rights. In a video interview with the Academy of Achievement, Ginsburg asserted, “I don’t say women’s rights—I say the constitutional principle of the equal citizenship stature of men and women.”
But it was Ginsburg’s work at the US Supreme Court —particularly her deft dissenting judgments defending the rights of ethnic, racial, and social minorities — that, perhaps, brought her the greatest respect. She saw dissenting judgments as “speaking to a future age”, she told NPR’s Nina Totenberg in a 2002 radio interview. “The greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
Ginsburg was a controversial political figure, whose time on the bench mobilized social change on important issues like equality and women’s rights. Her personal opinions on abortion proved to be in stark disagreement with the Catholic Church’s teachings. She stood in agreement with the decision to legalize abortion across all states in the landmark 1973 US Supreme Court case Roe v. Wade arguing in a Senate hearing that “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself”. Ginsburg said. “When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.”
Regardless of whether we agree with Ginsburg’s legal judgments or personal views, the Catholic community can still learn from her presence on the nation’s highest court, as a woman of faith with a voice and voting rights to match.
While the US Supreme Court consists of nine judges, one chief justice and eight associate judges, the South African Constitutional Court has eleven judges adjudicating each case. In both courts, the process is the same: all judges vote once arguments are heard and decide the matter on a simple majority. The genius offered by this legal system is that it relies on the diverse backgrounds and human experience of each judge and allows this to inform their deliberations, curbing potential bias. This varied composition also guarantees that the court will seek to listen to many viewpoints before arriving at a decision. As a woman and a member of the Jewish community, Justice Ginsburg offered critical diversity and her contributions to the court were invaluable.
A synodal Church
In September 1965, while Vatican II was still in session, Pope Paul VI established what he described as “a special council of bishops,” known as the Synod of Bishops. The synod would serve as an advisory body to help the pope to “survey the signs of the times” wrote Paul VI in his letter establishing the synod of bishops, “and to make every effort to adapt the means and methods of the holy apostolate to the hanging circumstances and need of our day.”
Pope Francis regards the bishops’ synod a vital vehicle in the Church’s pastoral response, much more than it enjoyed in previous papacies. At the 50-year commemoration of the institution of the Synod in 2015, Francis called for “a synodal Church”. He reiterated his teaching in an earlier papal document, Evangelii Gaudium, in which he writes that “it is not advisable for the Pope to take the place of local Bishops in the discernment of every issue which arises in their territory”, adding that he was “conscious of the need to promote a sound ‘decentralization’.”
The pope desires a Church that listens to the movement of the Holy Spirit wherever it might be found, whether in city streets or church pews. Francis wanted an opportunity for “a mutual listening in which everyone has something to learn”, he said. “The faithful people, the college of bishops, the Bishop of Rome: all listening to each other, and all listening to the Holy Spirit, the “Spirit of truth” (Jn 14:17), in order to know what he “says to the Churches” (Rev 2:7).”
Francis tested this model of the listening Church at Synod of Bishops on the family held in 2014 and 2015. The Synod inspired some skepticism because, for the first time in the history of synods, the Catholic lay faithful were invited to give input and make personal testimonies to the bishops gathered for discussion in the synod hall.
Francis was adamant that he wanted to listen to as many voices as he could before writing his apostolic exhortation on the pastoral care of families, Amoris Laetitia. Similar to the Supreme Court, the Church invited the testimonies of many different people — an effort to hear the voice of the Spirit present in each one of the faithful regardless of rank— before making a pastoral response.
A critical difference between the Catholic church and the Supreme Court
Unlike the US Supreme Court and South Africa’s Constitutional Court, the Catholic Church does not subscribe to a democratic decision-making process. The point of the bishops’ synod is not to come to a simple majority vote — even if bishops do vote individually on various issues — but to support a process of discernment, a holy time of mutual listening through which the voice of the Spirit can be heard and acted upon in the Church.
Sadly, one of Francis’ criticisms following last year’s Synod of Bishops on the Pan-Amazonian Region is that the bishops’ synod seems not to have met the expectations for which he hoped. Speaking with Antonio Spadaro, a Jesuit priest who is the editor of La Civiltà Cattolica, the pope expressed that though the discussion at the synod was “rich” and “well-founded”, there was “no discernment,” he said. Francis explained his point by saying that discernment was “something other than arriving at a good and justified consensus”.
The analogy between the Supreme Court and the Synod of Bishops is not perfect. The pope doesn’t listen for consensus but for the voice of the Spirit — which might not always be the majority view. Still, what we can learn from Justice Ginsburg and the importance of having a diversity of human experience on the bench is that justice and truth are best served when we do not exclude any voice.
The heart of Francis’ vision for a synodal listening Church is the invitation to be a Church that listens to the Spirit wherever it is blowing. The Church does not ignore the Spirit even when it may be a voice that is soft-spoken and underrepresented in our process of discernment.
Ricardo da Silva SJ contributed reporting from New York.