Pioneering Supreme Court justice championed the cause of equalityby Helena Kennedy / September 22, 2020 / Leave a comment
The death of US Supreme Court Justice Ruth Bader Ginsburg is a source of great sadness well beyond the shores of the United States. She was a hero and inspiration to many people, but particularly to women in the law and those fighting for justice. The steps of the Supreme Court in Washington were strewn with flowers and the carved words “Equal Justice Under the Law” were illuminated with candles.
Ruth Bader Ginsburg established an impressive legal legacy long before she joined the Supreme Court. As a lawyer back in the 1970s, she argued six gender discrimination cases before the all-male Supreme Court, won five of them, and changed the course of American law. In Reed v. Reed (1971), the court for the first time declared that a state statute was unconstitutional because it discriminated on the basis of sex. Ginsburg was arguing for Sally Reed that an Idaho law that said men should be preferred over women to act as executors of wills was unconstitutional. She won, after an uphill struggle, and the experience convinced Ginsburg that a better strategy was to argue equality cases for men as the route to gender equality; she thought she would get a better hearing. In Moritz v. Commissioner she argued that a law preventing a bachelor claiming a tax deduction for the care of his elderly mother was discriminatory as a woman could claim one. In another case, her client was a widower whose wife had died in childbirth but he was unable to receive welfare to care for his children because the regulations were based on assumptions about who looked after babies. Ginsburg’s work in these cases prompted courts to subject gender classifications to careful scrutiny under the Equal Protection Clause of the Fourteenth Amendment.
In Craig v. Boren (1976), she drafted the case brief to challenge the then Oklahoma law which permitted an 18-year old woman to buy beer but not a man under 21. She won the decision not by arguing that women should have equal freedom to men, but equal obligations. The impact of these cases cannot be overstated, as they forced laws to change nationwide and stimulated campaigns for legal reform in other jurisdictions too. Ginsburg set her own country on a path to extending equal justice under the law to women and then to LGBTQ Americans and many others too.
“Notorious R.B.G.”, a moniker that jokingly references the Brooklyn rapper B.I.G., had a formidable intellect and her brilliance as a lawyer undoubtedly set her apart, but it was her courage which made her iconic. I met her when she came to give a lecture at Cambridge in the 1990s and it was her excoriating dissenting judgments which had enthralled the audience and her righteous but quiet anger that captured our hearts. She was mischievous and funny, and had a great flair for clothes and jewelry. When I sat with her at drinks afterwards, I asked her how we could get women on to our highest court. She said “Keep at it!”, so I did.
During her 27 years as a Supreme Court justice, her voice on the court never faded, with every one of her authored court opinions solidifying her position as a contemplative jurist yet tenacious dissenter. Her steadfast voice proved critical for disenfranchised communities across the country. In the landmark case of United States v. Virginia (1996), she wrote the majority opinion that opened further doors for women’s education. Refuting Virginia Military Institute’s (VMI’s) description of “absence of public single sex higher education for women” as “an historical anomaly,” Ginsburg wrote “generalizations about ‘the way women are,’ and estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.” The ruling drafted by Ginsburg determined that VMI’s male-only admissions policy violated the Equal Protection Clause.
Ginsburg pioneered issues of gender discrimination and civil rights by simply disagreeing. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), Lily Ledbetter sued her employer for gender discrimination after discovering that over the course of her 19-year career at the company, she had received lower pay than her male counterparts. The Supreme Court decided with a 5-4 ruling that Ledbetter’s claim was out of time and that “current effects alone cannot breathe life into prior, uncharged discrimination.” Railing against the all-male majority, Ginsburg penned her dissent, pointing out that that the court was overlooking “common characteristics of pay discrimination.” “The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” she said, calling upon Congress to act where the court had not. In Shelby County v. Holder (2013), the 5-4 ruling invalidated a key provision of the Voting Rights Act that required certain jurisdictions with a history of discrimination to undergo federal oversight before enacting any changes in voting procedure. Her impassioned disagreement in this landmark case inspired people around the world to fight against injustice with dignity and grace.
As historian Jill Lepore wrote in the New Yorker, “Ruth Bader Ginsburg’s pioneering career as a scholar, advocate and judge stands as a monument to the power of dissent.” This is a power we should all be harnessing as we see the Rule of Law come under attack in so many places and in so many ways.