Having put weeks of pro bono time into writing (along with Brian Blaesser) the American Planning Association’s amicus curiae (friend of the court) brief in the City of Edmonds v. Oxford House case before the U.S. Supreme Court, there was no way I was going to miss attending the oral arguments and be sworn into the Bar of the U.S. Supreme Court. So on March 1, 1995 I found myself sitting 20 feet across from Justice Ruth Bader Ginsburg as I took the oath to join the Bar of the U.S. Supreme Court along with another 15 or so attorneys. That day will forever be firmly etched into my memory.
Much to my surprise, when the clerk called my name I’d swear that Justice Ginsburg winked and smiled her sly smile right at me. The guy next to me remarked upon it to me. After I returned to earth from Cloud Nine when the oral arguments began, I wildly — and hopefully — speculated that our amicus brief may have made a favorable impression on her. That speculation seemed to be verified a bit eight weeks later when Justice Ginsburg’s 6-3 decision incorporated so many of the points we made in our brief (although we were hardly alone in making most of them). I’m pretty darned sure that she must have remembered my name from the amicus brief since it appeared to have influenced her ruling that a local jurisdiction’s zoning code definition of “family” was not exempt from the Fair Housing Act’s requirement to make a reasonable accommodation in zoning codes to enable people with disabilities to live in community residences (aka group homes) in all residential zoning districts. Sadly, relatively few Illinois communities have complied.
As I reviewed the decision today, I realized that this decision was Justice Ginsburg at her non-ideological finest. The Court’s four moderates were joined by the very conservative Chief Justice Rehnquist and usually staunch conservative Justice Sandra Day O’Connor. The Court’s most radical conservatives — justices Scalia and Thomas — were joined in their dissent by Justice Kennedy who had yet to moderate his conservative anti-civil rights views.
When the pundits say that the physically diminutive Justice Ruth Bader Ginsburg was truly a legal giant, they aren’t kidding. It took a real legal giant to bring divergent but reasonable minds together to save the Fair Housing Act from yet another radical far right attack.