Justice Ruth Bader Ginsburg’s time on the Court was often characterized as a pitched battle between the principles of equality and individual liberty. Conservative majorities have tended to elevate individual autonomy rights over equal treatment and equal opportunity in our politics, our workplaces, and our schools. The liberal bloc, by contrast, has tended to oppose this subversion of equality to liberty, and pushed to recuperate equality as the primary value guiding constitutional law.
Justice Ginsburg was in a camp of her own. She long grasped that these two great principles of American democracy are not at odds, but rather integral to each other. She recognized that equal opportunity is vital to self-determination, and that personal liberty is secure only insofar as society respects each of us as equals. In short, she did not fall victim to the false dichotomy of equality and liberty, but worked to advance equal liberty under law.
Mary Ziegler: A dangerous moment for the Court
A little-known but momentous case, Christian Legal Society Chapter v. Martinez, exemplifies Ginsburg’s vision of equal liberty. Decided on the second-to-last day of the blockbuster 2009–10 term—one that included major decisions about campaign finance, gun rights, and criminal justice—this case has not generally been recognized as one of Ginsburg’s seminal opinions. But it contains all the hallmarks of the justice’s brilliance. It is a steady and cautious advancement of the law, faithful to precedent and situated within a paean to civil procedure, that ultimately reconciles with deft agility the seemingly competing values of religious liberty and equal educational opportunity.