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Ruth Bader Ginsburg is becoming the new Thurgood Marshall

George Curry | 7/15/2013, 9:33 a.m.
If you’re looking for the justice on the Supreme Court who mirrors Thurgood Marshall’s tenure on the bench, it is ...
George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service. He is a keynote speaker, moderator and media coach. Curry can be reached through his website, http://www.georgecurry.com. You can also follow him at http://www.twitter.com/currygeorge.

(NNPA) – If you’re looking for the justice on the Supreme Court who mirrors Thurgood Marshall’s tenure on the bench, it is not Sonia Sotomayor, the “Wise Latina.” And it certainly isn’t Clarence Thomas. It is Ruth Bader Ginsburg, the second woman to serve on the nation’s highest court.

This became clear in the Fisher v. University of Texas affirmative action case. With Elena Kagan recusing herself, the court voted 7-1 to send the case back to court of appeals for additional review. The lone dissenter was Ginsburg.

“The University of Texas at Austin (University) … has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats …” she said. “Justice Powell’s majority opinion in Bakke ‘rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.’ And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

In sending Fisher back to the 5th Circuit Court of Appeals in New Orleans, the 7-1 majority emphasized that the lower court should apply a standard of strict scrutiny, meaning the university must prove that it has tried all available race-neutral approaches before allowing race to be considered a factor in admissions.

Ginsburg wrote in her dissent, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”

Continuing to address the issue of race directly, Ginsburg said, “I have several times explained why government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’ Among constitutionally permissible options, I remain convinced, ‘those that candidly disclose their consideration of race [are] preferable to those that conceal it.’”

In Shelby County v. Holder, the Voting Rights Act challenge, Ginsburg filed a dissenting opinion that was joined by Stephen G. Breyer, Sotomayor and Kagan. The conservative majority struck down Section 4 of the Voting Rights Act, effectively gutting one of the nation’s most effective tools to curb discrimination against Black voters.

“In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy,” Ginsburg said. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”

She explained, “The Voting Rights Act of 1965 has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.”

Quoting a 1966 decision in South Carolina v. Katzenbach, Ginsburg said, “A century after the 14th and 15th Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the ‘blight of racial discrimination in voting’ continued to ‘infec[t] the electoral process in parts of our country.’”