CPR Reflects on Justice Ruth Bader Ginsburg's Legacy

Robert Verchick

Sept. 25, 2020

Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”

It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying the agency had not been precise enough in its allocations. EPA responded that the kind of precision industry wanted was nowhere required in the law and was, at any rate, impossible. When troubled winds swirl, one “canst not tell whence it cometh.”

In her majority opinion, Ginsburg rides that sacred thermal for only a moment before swooping into a forest of cost curves, computer models, and bureaucratic argle bargle. It’s a dizzying trip. But when, dozens of paragraphs later, the justice eventually pulls out of the canopy—having whisked you through “one-percent thresholds,” airshed “bubbles,” and a traumatic set of math-class hypotheticals (“Suppose then that States X and Y . . .”)—you find (if you’ve held on tight and not lost your lunch) that at the end of it all, EPA’s “Good Neighbor” policy makes some practical sense and fits easily with the plain language of the controlling statute. The Court sided with the agency 6-2. (Justice Alito did not participate.)

Having served at the EPA at the time the Cross-State Air Pollution Rule was being developed, the opinion is, for me, a special part of the justice’s legacy. Reading it this week with fresh eyes, what impresses me most is not Ginsburg’s capacious intellect or her terrier-like resolve to master the science, the math, and whatever else. It’s not even the comforting clarity with which she enlightens the reader. What makes me choke up is that lilting and timeless reflection on the vagaries of wind. With that passage, Ginsburg situates the prevailing regulatory drama within an ineffable human experience as old as time, one that you can hear, touch, and feel in your rattled bones. There’s beauty and history in that overture, and a blend of cultural traditions, too, as the woman who would become the Court’s longest-serving Jewish justice invokes the words of Jesus to open the reader’s mind and get to the business at hand.

As it did during her remarkable life, the wind continues to “bloweth and listeth.” Thus the passing of Justice Ruth Bader Ginsburg has predictably brought out the best and worst in us. On the one hand, Americans came together in mourning a truly beloved public figure, a woman whose life was about overcoming the barriers placed before her to rise to the very top of her profession, and then reaching out to help others follow in her footsteps, opening doors and clearing a path for them to be full participants in our society, economy, and public life. Justice Ginsburg's legacy is one of inclusion, fairness, equality, and as her title suggests, justice. But I’m afraid that those who regard such ideals as a threat to their power and status have made little effort to constrain their opportunism. Thus her passing has also triggered what promises to be a monumental power struggle as a president with sagging prospects for reelection and a Senate majority sensing its weakening grip on power aims to solidify a hard-right Supreme Court majority for years to come.

For the Member Scholars and staff of the Center for Progressive Reform, Justice Ginsburg's passing is a moment for reflection, a time to celebrate her achievements, mourn what has been lost, and gird for what is to come. Because her death has triggered such an outpouring of emotion, we asked the CPR family to offer reflections on her life and legacy and have gathered them on our website. I encourage you to take a few moments to read them.

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