Jim Young/Reuters
- RBG would have fought back against Samuel Alito's Roe v. Wade opinion, her longtime friend says.
- NPR's Nina Totenberg discussed the late Supreme Court Justice in an interview this week.
- Totenberg said Ginsburg's words were taken "out of context" in Alito's majority opinion.
Supreme Court Justice Ruth Bader Ginsburg would have been displeased with her inclusion in Justice Samuel Alito's majority opinion overturning Roe v. Wade earlier this year, according to Ginsburg's longtime friend and peer.
NPR legal correspondent Nina Totenberg spoke about her years-long friendship with the late judge in an NPR interview this week while promoting her forthcoming book "Dinners with Ruth." During the conversation, Totenberg suggested that Ginsburg, a fierce defender of women's rights, would have fought back against Alito's choice to quote her in his polarizing opinion.
The Supreme Court in June overturned Roe v. Wade in a 5-4 decision that gutted the nearly 50-year-old landmark ruling that legalized abortion nationwide, following an unprecedented leak of the draft opinion in the case.
In his majority decision, Alito cited Ginsburg twice in arguing his belief that Roe was "egregiously wrong from the start,"
"Everybody knows that if she had been alive, she would have taken his skin off over that section, but it remained in the opinion," Totenberg said of Ginsburg's quote.
In a lecture published in the 1992 issue of the New York University Law Review, Ginsburg argued that Roe v. Wade didn't go far enough in enshrining a women's right to choose.
"Roe…halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue," Alito quotes Ginsburg near the start of his 98-page opinion.
Totenberg said Alito's decision to include Ginsburg's voice was one made in bad faith.
"I think that's an indication of how much bad feeling there is among the justices on this court that that section was not taken out because it was written out of context completely," the journalist said.
Ginsburg throughout her life was open in her reservations about the legal basis on which Roe was passed, arguing that the landmark ruling actually "stopped the momentum that was on the side of change" in favor of abortion rights. She believed it would have been more effective for the court to consider a case that emphasized a woman's right to choose on the matter of equal protection under the law, rather than the right to privacy on which the case was ultimately decided.
Ginsburg died at the age of 87 in 2020. Her death opened the door for then President Donald Trump to appoint Justice Amy Coney Barrett in his effort to support judges who would overturn Roe v. Wade — which she ultimately helped do.
In the aftermath of her death, some have criticized Ginsburg for not stepping down when Barack Obama was president so he could appoint a liberal judge to replace her.
Totenberg suggested that Ginsburg's reason for remaining was twofold: She thought the Republican-controlled Congress would block her successor, and she believed Hillary Clinton would be the next president and wanted to give the first female leader the opportunity to appoint her successor.
"She rolled the dice, and she lost," Totenberg said.
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