Fear the Frill: Ruth Bader Ginsburg and the Uncertain Futurity of Feminist Judicial Dissent

Inspired by Robert Ivie's notion of democratic dissent as “limited nonconformity,” this essay examines the institutional grounding of judicial dissents, focusing specifically on Ruth Bader Ginsburg's dissenting opinion in Burwell v. Hobby Lobby. I argue that the genre of judicial dissent, both of the law and in excess of the law, operates as a supplement to the judicial system that legitimates and reinforces its institutional structure even as individual dissents may challenge majority opinions. I also consider the ways that Ginsburg's text and image have been deployed by reproductive rights advocates and Hobby Lobby protestors in the immediate aftermath of the decision, suggesting that the rhetorical and political excess of Ginsburg's dissent produces new opportunities for invention beyond the institutional constraints of the law.