The death of Ruth Bader Ginsburg has left the two of us bereft of a mentor and exemplar of how to live a meaningful life in the law. But the loss to the court and the country is greater. It goes beyond her penetrating commitment to women’s rights. For the court is the sum of its members’ legal experience, and following Ginsburg’s death, there will be no justice who has experience representing people whom the law has excluded from full membership in American society. There will, in contrast, be eight justices who have worked for the executive branch or as a prosecutor. So lopsided a bench cannot fairly account for the rich range of human interests the court must consider.

Before she became a judge, Ginsburg famously litigated strategic cases on behalf of the Women’s Rights Project of the American Civil Liberties Union. These established the 14th Amendment’s Equal Protection Clause precluded discrimination on the basis of sex. She also championed male plaintiffs who demonstrated the burdens an ideology of gender-separate spheres imposed on all — as when, in a 1975 case, she argued on behalf of Stephen Wiesenfeld that the denial of Social Security benefits to widowers but not widows amounted to an unjust replication of stereotypes. Robert Bork, representing the U.S. government as solicitor general, scoffed at the very premise of the case: Wiesenfeld’s desire to take care of his young son, said Bork incredulously, was an obvious fabrication. But Ginsburg knew better: Her litigation, both for men and women, rested on her ability to perceive how rigid stereotypes kept people cruelly locked out of opportunities — whether taking time out of the workforce to care for one’s children or serving in the armed forces — that give meaning to our lives.

Ginsburg had a similarly pathmarking predecessor (“pathmarking” was one of her signature words): the incomparable Thurgood Marshall. He directed the legal strategy of the NAACP and its Legal Defense Fund in the fight against desegregation. While Ginsburg and Marshall may have been in categories of their own, presidents in past era have turned to people who had defended members of marginalized groups: President Lincoln’s 1864 nominee to the court, Chief Justice Salman P. Chase, had earlier in his career defended escaped enslaved people and those who aided them. He was a vigorous voice against that vicious institution. But Chase, Marshall and Ginsburg were, alas, the rare exceptions.

An absence of professional diversity on the court during the 1800s is readily explainable by the uniform character of the elite bar then. But the fact lawyers with such experience so rarely get nominated to the court today is another matter. Now, there is an embarrassment of riches when it comes to lawyers taking a variety of professional paths. Their absence from the court weakens the institution, shaping both the cases that are taken and their outcomes. It means yet another advantage for the powerful, and in particular for those who flex the coercive arms of the state.

Ginsburg’s experience representing the excluded and marginalized was readily evident on the bench — and her keen understanding of their plight extended far beyond the precincts of equality law. One example comes from criminal procedure. In Halbert v. Michigan, she wrote the court’s opinion that indigent defendants who seek to appeal a conviction after they have pleaded guilty must have a lawyer appointed to represent them. More than two-thirds of the prison population, she noted, had not completed high school and so lacked basic literacy skills. It was, she wrote, a “tall order for a defendant of marginal literacy” to understand the potential defects of a plea deal.

Another hallmark of her jurisprudence was her commitment to preventing technicalities from slamming the courthouse door shut on people. Over the years, for instance, many lower-court judges had become habituated to treating small clerical errors involving filing and appealing as “jurisdictional”: Foul them up, and you were out of luck because the court simply lacked “jurisdiction” to proceed. No surprise: It is disproportionately the underfinanced and poorly represented litigant who will run afoul of these rules.

Ginsburg ran a quiet campaign against this plague of “jurisdictional” rules. Few people are celebrating this week her opinions in Becker v. Montgomery or Scarborough v. Principi. The first involved a failure to sign an appeal, the second a failure to include an allegation in a filing. But thanks to these decisions — and thanks to Ginsburg’s diligent solicitude for those not fortunate enough to be lawyered up to the hilt — litigants who cannot afford good counsel today are less likely to be kicked to the curb for minor mistakes.

Such a perspective, sensitive to the view from the bottom of the system, is now simply absent from the court. Out of the remaining justices, seven — Chief Justice John Roberts Jr. as well as Justices Clarence Thomas, Stephen Breyer, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh — have spent pivotal years working for the executive branch; several spent key years in the White House itself. (To be fair, Breyer, also has experience working for the Senate Judiciary Committee.) Another, Justice Sonia Sotomayor, has been a criminal prosecutor in Manhattan. Not one has spent any substantial amount of time representing individuals denied opportunities because of prejudice or stereotypes.

No doubt the perspective of the White House lawyer or the prosecutor matters, but a national tribunal should not eye legal and constitutional problems through such an asymmetrical lens. A more comprehensive perspective is all the more important given the lopsided staffing of the lower courts of appeal. One recent study, for example, found former prosecutors outnumber four-to-one former defense counsel on the federal bench. We’re not aware of any systematic study of how many lower federal judges were once litigators from interest groups representing the marginalized — from the ACLU to the NAACP to the Bronx Defenders. But we can think of very few.

At the selection stage, the court today has an almost completely free hand to choose which cases it will hear. But a bench that lacks any meaningful diversity of professional experience is less likely to recognize those cases in which the constitutional interests of the socially excluded are being seriously compromised.

When the court hears and decides cases, justices who have never represented a victim of discrimination or an indigent individual who has encountered police violence are less likely to appreciate fully how the burdens of state and private action can fall on disadvantaged Americas. Whether they be women disadvantaged by their employers’ refusal to obtain insurance coverage for contraception or criminal defendants trapped by an unfair state conviction, their pleas will be skimmed by unsympathetic eyes.

The next appointment to the court should make that body wiser, rendering it less likely to erroneously overestimate the interests of the powerful and wealthy. Why would either Democrats or Republicans demur to this? A nominee by a Republican president will certainly look different from a nominee by a Democratic one, but access to justice should not be a partisan issue — and of course, Republican-leaning lawyers as well as Democratic ones represent individuals who have suffered discrimination or exclusion, such as criminal defendants and maligned religious minorities. To fail to consider this question would be to slight the extraordinary life and contributions of Ginsburg — and render a disservice to the promise, fragile and seemingly ever receding, of equal justice under law.

Huq teaches law at the University of Chicago, and is co-author of “How to Save a Constitutional Democracy.” He clerked for Justice Ginsburg. Karlan is the Kenneth and Harle Montgomery professor of public interest law at Stanford Law School, and co-directs Stanford’s Supreme Court litigation clinic.


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