race-conscious affirmative action—he won a great many more cases than he lost, and Ginsburg, like Marshall, often found herself in dissent. She did have occasional triumphs, none sweeter than the VMI case. The Virginia Military Institute, which was funded by taxpayers, admitted only men as cadets. In a 7–1 decision in 1996, the Court struck down the single-sex policy at VMI as a violation of the equal protection clause. Ginsburg’s opinion gave her the rare pleasure of surveying the history of sex discrimination law at the Court and citing several cases that she herself had argued. “ ‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of themembers of either sex or for artificial constraints on an individual’s opportunity,” she wrote. “But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” (Rehnquist, knowing how much the issue meant to Ginsburg, assigned the opinion to her. Scalia dissented. Thomas recused himself from the case because his son was a cadet at VMI.)
Triumphs like the VMI case were few. Ginsburg, like Marshall, suffered serious health problems. Over the years, many had been fooled by Ginsburg’s fragile appearance. She barely topped five feet and weighed less than a hundred pounds, but she was as tough, in her way, as an NFL linebacker. (In this area and others, Marty was a diligent steward of his wife’s good name. He once surprised a reporter with the question, “How many push-ups can you do?” When the reporter stumbled for a response, Marty Ginsburg said, “My wife can do twenty-five—and you wrote that she was ‘frail.’ ”)
In 1999, Justice Ginsburg was diagnosed with colon cancer. Over the next several months, she went through radiation and chemotherapy but never missed a day on the bench. During this period she received enormous support from O’Connor, who had been treated for breast cancer in 1988. The shy Ginsburg and charismatic O’Connor appeared to have little in common, including their judicial philosophies, but the first and second women on the Court shared a warm friendship. In 2005, O’Connor’s departure from the Court hit Ginsburg hard, especially since Alito ended up as her replacement. As Ginsburg often said, it had never occurred to her that she would ever be the only woman on the Court.
When Ginsburg took her seat in October 2006, she was already melancholy. There was worse news. Marty had cancer again. And for the first time in the Roberts era, the most incendiary topic of all had returned to its docket—abortion.
The Court’s 1973 decision in
Roe v. Wade
was rooted in a ruling that came eight years earlier. The result in
Griswold v. Connecticut
was not especially controversial, but the reasoning behind it was and remains a flashpoint of constitutional debate. (
Griswold
the case should not be confused with Erwin Griswold, the onetime solicitor general and dean of Harvard Law School.)
Even in the midsixties, Connecticut rarely enforced its legal ban on the sale or use of birth control, which stated, “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year.” Still, the executive director of the Planned Parenthood League of the state, seeking to create a test case, arranged to be arrested for violating this law by giving birth control advice to married couples. In 1965, the Supreme Court overturned the conviction by a vote of 7–2. The justices produced six different opinions, but Justice William O. Douglas spoke for the majority.
“This law operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation,” Douglas wrote. There was clearly something wrong with the Connecticut
Triumphs like the VMI case were few. Ginsburg, like Marshall, suffered serious health problems. Over the years, many had been fooled by Ginsburg’s fragile appearance. She barely topped five feet and weighed less than a hundred pounds, but she was as tough, in her way, as an NFL linebacker. (In this area and others, Marty was a diligent steward of his wife’s good name. He once surprised a reporter with the question, “How many push-ups can you do?” When the reporter stumbled for a response, Marty Ginsburg said, “My wife can do twenty-five—and you wrote that she was ‘frail.’ ”)
In 1999, Justice Ginsburg was diagnosed with colon cancer. Over the next several months, she went through radiation and chemotherapy but never missed a day on the bench. During this period she received enormous support from O’Connor, who had been treated for breast cancer in 1988. The shy Ginsburg and charismatic O’Connor appeared to have little in common, including their judicial philosophies, but the first and second women on the Court shared a warm friendship. In 2005, O’Connor’s departure from the Court hit Ginsburg hard, especially since Alito ended up as her replacement. As Ginsburg often said, it had never occurred to her that she would ever be the only woman on the Court.
When Ginsburg took her seat in October 2006, she was already melancholy. There was worse news. Marty had cancer again. And for the first time in the Roberts era, the most incendiary topic of all had returned to its docket—abortion.
The Court’s 1973 decision in
Roe v. Wade
was rooted in a ruling that came eight years earlier. The result in
Griswold v. Connecticut
was not especially controversial, but the reasoning behind it was and remains a flashpoint of constitutional debate. (
Griswold
the case should not be confused with Erwin Griswold, the onetime solicitor general and dean of Harvard Law School.)
Even in the midsixties, Connecticut rarely enforced its legal ban on the sale or use of birth control, which stated, “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year.” Still, the executive director of the Planned Parenthood League of the state, seeking to create a test case, arranged to be arrested for violating this law by giving birth control advice to married couples. In 1965, the Supreme Court overturned the conviction by a vote of 7–2. The justices produced six different opinions, but Justice William O. Douglas spoke for the majority.
“This law operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation,” Douglas wrote. There was clearly something wrong with the Connecticut
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