In Memoriam: Ruth Bader Ginsburg

In Memoriam: Ruth Bader Ginsburg

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With Gratitude From Our Daughters: Reflecting on Justice Ginsburg and United States v. Virginia

Prof. Meredith Johnson Harbaugh*

“What enabled me to take part in the effort to free our daughters and sons to achieve whatever their talents equipped them to accomplish, with no artificial barriers blocking their way?”

—Ruth Bader Ginsburg

On September 18, 2020, we mourned the loss of Justice Ruth Bader Ginsburg, whom many considered not just a cultural icon, but a national treasure. Among many other things, Justice Ginsburg became a later-in-life feminist “rock star,” celebrated for her rousing and impassioned dissents, her fearless defense of equality and autonomy rights, her championing of civil rights, and her persistent determination in the face of injustice. RBG’s pop-culture status led to books, movies, t-shirts, “dissent collar” accessories, and Halloween costumes. But long before she became “notorious,” she was a daughter, a mother, a law student, an advocate, a professor, a judge, and then—finally—a Justice. In this Essay, I will reflect on the opinion that manifests her life in all those roles and stands in many ways as the culmination of her life’s work: United States v. Virginia (VMI).

Scholars and observers have characterized the VMI case as Justice Ginsburg’s finest opinion—“her most celebrated case,” a “landmark,” and her “crowning achievement.” When Ginsburg herself was asked which of her decisions were most influential and made her most proud, she, too, singled out VMI. VMI was a very special case for me,” she said. “It was a bright sign of the changing times.” Many agree that Ginsburg’s opinion in VMI was the most important opinion she wrote while on the Court.

I chose to reflect on this case, not only—or even primarily—because this Essay comes in the University of Richmond Law Review’s Annual Survey of Virginia Law. Rather, I chose to reflect on VMI because of its personal and professional significance for Justice Ginsburg and her continued significance for the Institute, its cadets, and its graduates. As I went back to study Justice Ginsburg’s life and the VMI opinion, several threads stood out, which have resonated through her life and her work, as well as the opinion. First, I was struck by how, in many ways, the narrative in the VMI case is a story about Ginsburg’s own personal and professional life. With echoes of Ginsburg’s own life and career, the VMI opinion was in many ways the pinnacle of Ginsburg’s ambitious gender equality project. Second, throughout her life and career, Justice Ginsburg had an abiding faith in the American project to become “a more perfect union,” and the Constitution’s expanding capacity to recognize and protect “We the People.” Third, from the beginning, Ginsburg’s gender equality project was aimed at dismantling what she often called “sex-role pigeonholing”—removing “artificial barriers” to what citizens could dream and achieve based on stereotyped views of women’s and men’s roles. And finally, she was unfailingly focused on future generations—our daughters (and our sons)—as the rightful beneficiaries of gender equality and the key to effecting social change over time.

In the pages that follow, I will explore these themes along with the course and significance of the VMI case. I will begin with Justice Ginsburg’s story, then turn to the litigation, the opinion, and what happened afterward.

* Professor of Law, University of Richmond School of Law. I thank the editors of the University of Richmond Law Review, especially Annual Survey Editor Jamie Wood, for the invitation and opportunity to write this In Memoriam Essay. It has been an honor and a joy to work on this piece. Gemma Fearn provided fantastic—and fast!—research for this project. This Essay is dedicated to my daughters.

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

Amelia G. Collins

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When courts imply a cause of action under a Bivens analysis and when they apply an immunity as a defense, they are acting in their capacity as common-law courts.[1] However, each of those mechanisms developed differently, and the Supreme Court of the United States has been hesitant to utilize one—Bivens causes of action—while generously applying the other—qualified immunity. The purposes behind each device were originally antithetical, with Bivens aiming to deter unconstitutional conduct and qualified immunity seeking to ensure courts did not deter too much. However, the Supreme Court gradually restricted its Bivens jurisprudence, from granting a cause of action unless there are “special factors,” to denying a cause of action whenever there are “sound reasons.”[2] As a result, the practical outcomes of both analyses are the same: plaintiffs cannot fully vindicate their constitutional rights and often cannot vindicate them at all. This Comment argues that, to ensure the vitality of the foundational presumption that for every legal right, there is a remedy,[3] the Supreme Court should restore its Bivens analysis to the original framework, invoking only those “special factors” recognized in the Court’s initial extensions of a cause of action to plaintiffs bringing constitutional claims.

That would mean abandoning the catch-all “sound reasons” espoused in Ziglar v. Abbasi[4] and followed in the Court’s most recent Bivens decision, Hernández v. Mesa.[5] It would mean considering only whether the issue is purely a matter of policy—that is, one that does not implicate a constitutional right—or whether the issue raises extraordinary separation-of-powers concerns. A restoration of the original Bivens framework would ensure that federal actors can be held accountable when they violate the Constitution. The court-created doctrine of qualified immunity would remain a defense, but, at the very least, the courts would reprise their proper role in the protection of constitutional rights.

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues for the restoration of the original, more limited “special factors” jurisprudence—and an abandonment of the incorporation of qualified immunity concerns—to facilitate the vindication of constitutional rights.



    [1].    See Richard H. Jr. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 949 (2019) (“Absent statutory authorization, a right to sue for redress of a constitutional violation is a species of common law, crafted by the courts to implement the Constitution in the absence of a necessary one-to-one correlation between a constitutional right and a particular remedy for the right’s violation. Bivens’ innovations were to ground a cause of action in federal rather than state common law and to put alleged constitutional violations at the core of the right to sue.”).

        [2].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).

        [3].    Marbury v. Madison, 1 Cranch 137, 162–63 (1803).

        [4].    Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).

        [5].    Hernández v. Mesa, 140 S. Ct. 735, 743 (2020).

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