Equality’s Frontiers: How Congress’s Section 5 Power Can Secure Transformative Equality (as Justice Ginsburg Illustrates in Coleman)

Abstract

Justice Ruth Bader Ginsburg’s work continues to illuminate equality’s frontiers, as today’s intergenerational conversation among friends and colleagues so richly testifies. To illustrate the generativity of her work, it is of course tempting to focus on cases for which Justice Ginsburg is famous. But in these remarks, I would like to draw attention to a recent decision unfamiliar to most, Coleman v. Court of Appeals, in which Justice Ginsburg, in dissent, addresses Congress’s role in enforcing the Fourteenth Amendment and shows how actors outside courts can help vindicate constitutional rights and implement equality in transformative ways. In Coleman, Justice Ginsburg reconstructs several decades of history to illustrate how debate in civil society and in Congress can build consensus to enforce equal protection guarantees, and ultimately move Congress to commit resources to new means of securing the equal protection of the laws. Justice Ginsburg’s Coleman dissent shows how the Court and Congress acting together can enforce the Constitution’s promise of equal citizenship in ways the Court acting alone cannot.