Supreme Court Associate Justice Ruth Bader Ginsburg, who died Friday, was a fierce advocate for the equal treatment of women in every aspect of life.
SEPTEMBER 18, 2020 - Ruth Bader Ginsburg was getting very little sleep. It was the early 1970s, and she was teaching at Columbia Law School while founding the Women’s Rights Project of the American Civil Liberties Union and litigating historic gender discrimination cases nationwide. She was also a parent, raising two children with husband Marty. Their youngest, James, was a handful. And when James had a problem at school – a common occurrence – it was Ruth’s phone, not Marty’s, that would ring.
Supreme Court Justice Ruth Bader Ginsburg, shown Nov. 30, 2018, was a liberal icon who advocated for women's rights in every aspect of her life.J. Scott Applewhite/AP/file
One day the school called Ms. Ginsburg’s Columbia office after she had been up all night writing a brief. She’d had enough. Picking up the phone she said, tartly, “This child has two parents. Please alternate calls. It’s his father’s turn.”
Then she hung up.
After that the school called perhaps once a semester, Justice Ginsburg recounted gleefully in 2018 onstage at the Sundance Film Festival. They’d been fine with bothering her, but had been reluctant to interrupt Marty, a lawyer with a private firm.
As an attorney, law professor, judge – and yes, as a parent – Supreme Court Associate Justice Ruth Bader Ginsburg, who passed away Friday, was always a fierce advocate for the equal treatment of women in every aspect of life. “My most fervent wish is that I will not be replaced until a new president is installed,” she reportedly dictated to her granddaughter in her final days.
Piece by piece, case by case, she helped dismantle and rebuild for the better the ways women work, are paid, acquire responsibility, and participate in American political and economic society.
In doing so Justice Ginsburg became an icon of achievement. Rare is the Supreme Court justice able to create a distinct legacy. Rarer still is the justice able to create a distinct legacy, shape an entire area of the law, and become a pop culture icon recognized around the country: the fiery, jabot-wearing Notorious R.B.G.
There is truth in the caricature. Justice Ginsburg’s dissents could flick like switchblades. As a young attorney arguing a case before the Supreme Court, she told justices that she asked for no favor for her sex – only that men “take their feet off our necks,” quoting abolitionist Sarah Grimké.
“Our nation has lost a jurist of historic stature,” Chief Justice John Roberts Jr. said in a statement. “We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.”
Petite and soft-spoken in person while steely and passionate on the page, it is not an understatement to say Justice Ginsburg was one of the most significant legal minds of modern American history.
“There are only a few modern justices who would been significant figures in American law even if they had never served on the Supreme Court,” said Richard Primus, a professor at the University of Michigan Law School and a former Ginsburg clerk, in an email to the Monitor. “Ruth Bader Ginsburg is one.”
The SCOTUS years
Nominated by President Bill Clinton in 1993, Ruth Bader Ginsburg was approved by the Senate 96-3, becoming the second female Supreme Court justice, following Justice Sandra Day O’Connor to the high court bench.
Among a minority of liberal-leaning justices for much of her time on the high court, she has few landmark opinions to her name. But as a reliable vote for progressive interpretations of the law, and in fiery dissents later in her career, she left an indelible mark on American jurisprudence, building on her work as a law professor and advocate.
In perhaps her most significant opinion, the 1996 decision in United States v. Virginia, she wrote that the Virginia Military Institute’s male-only admissions policy violated the Fourteenth Amendment’s equal protection clause.
It was in dissent, however, where Justice Ginsburg often made her voice heard on the Supreme Court. In a 2007 gender pay discrimination case, the court ruled 5-to-4 against Lilly Ledbetter, an employee at a tire company, because she had filed suit after the time limitation under Title VII of the Civil Rights Act had expired. Reading her dissent from the bench, Justice Ginsburg criticized the majority for “a cramped interpretation of Title VII” and suggested that Congress “may act to correct this Court’s parsimonious reading of Title VII.”
Two years later, Congress passed the Lilly Ledbetter Fair Pay Act and it became the first bill signed into law by then President Barack Obama.
In 2013 a pair of Ginsburg dissents cemented her status as a pop culture icon: the jabot-wearing, crown-toting “Notorious R.B.G.”
In the Burwell v. Hobby Lobby case – a decision in which the court ruled, 5-to-4, that private companies can refuse on religious grounds to provide contraceptive care to their employees – she wrote that “the court, I fear, has ventured into a minefield.” And in Shelby County v. Holder – in which the court ruled, 5-to-4, to invalidate a portion of the Voting Rights Act requiring some states to get pre-cleared by the Justice Department before changing their voting laws – she wrote that throwing out pre-clearance “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The Hobby Lobby dissent, Slate’s Dahlia Lithwick wrote in 2015, “became a cri de Coeur popularized in viral Facebook memes and a tribute song. Notorious R.B.G., crown and all, became the face of female employees in Hobby Lobby, and female workers everywhere whose bosses’ religious preferences might trump their right to birth control.”
A Notorious R.B.G. book followed, as did numerous write-ups of her workout routine. Then, with progressives desperate for a hero in the Trump years, came the “RBG” documentary and the biographical film “On the Basis of Sex”, both released in 2018, not to mention countless “Saturday Night Live” skits starring Kate McKinnon.
Her celebrity rubbed some the wrong way, but she reportedly enjoyed it, and others credit her with making the Supreme Court accessible for a whole generation of young people. She had a crossover appeal that may not be seen on the high court for some time.
“Her life story combined with the work has created the story, and a lot of the other justices don’t have that,” says Tracy Thomas, a professor at the University of Akron School of Law. “Larger-than-life people maybe don’t come around all that often.”
An incremental warrior
Justice Ginsburg’s influence on American law began long before she reached the Supreme Court.
As a young girl in Brooklyn, Joan Bader – she started going by her middle name, Ruth, after starting school and discovering several other girls named Joan in her class – cited her mother, Celia, as a strong influence who told her “to be a lady. And for her that meant to be your own person, be independent.”
As a student at Harvard Law School she became the first female member of the Harvard Law Review, something she achieved while caring for her husband Martin Ginsburg as he fought cancer, and attending both of their classes.
It was during her often-overlooked career as a law professor that she began to articulate her legal approach to achieving gender equality.
When she became an assistant professor of law at Rutgers University in 1963, she became just the 19th woman in the country to be appointed to a tenure or tenure-track position at a law school approved by the American Bar Association and the Association of American Law Schools. Nine years later, she became Columbia University’s first tenured woman law professor.
She began teaching courses focused on civil procedure, but issues of gender equality were intruding on her life nonetheless. She was paid less than male colleagues at Rutgers when she joined, and when she became pregnant in 1964 she was so frightened her contract wouldn’t be renewed she told no-one, hiding her condition by wearing clothes “from my ever supportive, one size larger mother-in-law” until she signed a new contract. James Steven Ginsburg was born a few months later.
But it wasn’t until 1971 that she began to focus her scholarly energies on the legal status of women. It was around then, she said in a 1995 talk at Rutgers, that women at the school, encouraged by the civil rights movement, asked for a seminar on Women and the Law.
“I repaired to the library. There, in the space of a month, I read every federal decision ever published involving women’s legal status, and every law review article,” she said. “That was no grand feat. There were not many decisions, and not much in the way of commentary.”
By the time she reached Columbia, she was an activist. In her first month, she learned that as part of a money-saving effort, the university sent lay-off notices to 25 maids but no janitors. “I entered the fray,” Justice Ginsburg recalled in 1994, “which happily ended with no lay-offs.”
“Ginsburg did her most significant law reform work at Columbia,” writes Herma Hill Kay. “She melded her teaching, scholarship, and advocacy in the service of a cause that engaged her completely… To put women into the United States Constitution.”
These experiences prepared her for what many gender law experts to be her most defining period: her eight years as general counsel of the Women’s Rights Project at the American Civil Liberties Union. In those years the Project participated in hundreds of gender discrimination cases – often cases involving discrimination against men – and she argued six cases before the Supreme Court, winning five.
“That was really where she invented new concepts to litigate these [gender discrimination] cases,” says Professor Thomas.
In 1973 she argued that a Florida law allowing a property tax exemption for widows but not widowers was unconstitutional. In 1974 she won a case for a widower who couldn’t apply for social security benefits, and in 1978 she argued that a convicted murderer in Idaho had his right to a trial by jury violated because of a state law allowing automatic jury service exemptions for women.
The feminist legal scholar Joan Williams describes Justice Ginsburg’s approach as “reconstructive feminism,” meaning an approach that instead of focusing on women and the discrimination they face, focuses on “the gender dynamics within which [gender] identities are forged” more generally.
“Ginsburg’s goal was not merely formal equality. Her goal was a society in which women could gain access to roles traditionally reserved for men, and men could gain access to roles traditionally reserved for women,” writes Professor Williams. “We can see her as perhaps the first reconstructive feminist.”
Years later, in Time Magazine, Justice Scalia would praise her as “the leading (and very successful) litigator on behalf of women’s rights – the Thurgood Marshall of that cause, so to speak.”
This was a comparison that Justice Ginsburg said made her “uncomfortable.” She did copy the approach to overturning an existing legal order followed by Marshall and the NAACP. But the social and cultural context in which she pursued women’s rights was much different than the one that the civil rights pioneers faced.
“My life was not in danger, as his was,” she said in a 2017 interview on CBS.
Ruth and Marty
As inspiring as her mother was to her, there is no doubt that the defining relationship in Justice Ginsburg’s life was the one she had with her husband, Martin Ginsburg.
She was a Cornell undergraduate and he was a first-year law student when they met. They married a few days after her graduation. She often said he was the first man interested in her brain. They attended law school together, first at Harvard, then at Columbia. Later in life he often said proudly that he did not make law review at Harvard, while she had.
“He was secure in his abilities, he never regarded me as any kind of threat,” Justice Ginsburg said in a Women in Legal Education oral history in 2014.
As a law professor and tax specialist in private practice, Martin eventually became the family’s chief breadwinner – and bread maker. When they were a young couple, a cousin of Ruth’s sent them “The Escoffier Cookbook,” the Bible of French cooking, as a gift. Marty, a former chemistry major, worked through it like a textbook, starting with basic stocks, moving on to sauces, and continuing through the entire volume.
He did it, he said, because he knew his wife was a terrible cook. His nutritional support was symbolic of the intellectual and logistical help he provided to help Ruth rise to the highest rung of her profession.
Eventually Martin became a semi-famous amateur chef. After he died in 2010, the spouses of the other Supreme Court justices got together and published his favorite recipes in the tribute “Chef Supreme: Martin Ginsburg.”
Throughout her life, Justice Ginsburg opposed the boxes of stereotypical gender roles. Too often these ended up making women subservient to men, she felt, or were evidence of unconscious bias.
Take symphony musicians. Justice Ginsburg loved opera and other classical music, and growing up she noticed that symphonies had virtually no women members, except for harpists, a traditionally female role. Male music critics swore they could tell whether a woman or man was playing an instrument, with their eyes closed.
Then in the 1960s and ’70s, as the women’s movement gained momentum, some symphony director had the idea of putting auditioning musicians behind a drop curtain. As Justice Ginsburg noted often in interviews and speeches, this simple act was transformational. Critics couldn’t tell a player’s gender. Almost overnight the number of women in symphony orchestras began to climb.
“I wish we could have a drop curtain in every field of endeavor,” she said in a 2018 conversation with National Constitution Center President Jeffrey Rosen.