Justice Ruth Bader Ginsburg, feminist pioneer and progressive icon, dies at 87
on Sep 18, 2020 at 9:26 pm
Ruth Bader Ginsburg, a trailblazer who fought for gender equality as a lawyer and became a beloved hero of the progressive movement as a justice, died on Friday of complications from pancreatic cancer. When she was confirmed to the Supreme Court in 1993, Ginsburg was a reserved and relatively unknown court of appeals judge, but during the course of her 27 years on the court she became an improbable pop-culture icon, inspiring everything from an Oscar-nominated documentary film to her own action figure. She was 87.
With the presidential election less than two months away, Ginsburg’s death will undoubtedly kick off a heated battle over how quickly the vacancy should be filled. After Justice Antonin Scalia died in February 2016, Senate Republicans immediately announced that they intended to oppose any effort to confirm a successor to Scalia until after the 2016 presidential election. Although President Barack Obama nominated Judge Merrick Garland in March 2016 to take Scalia’s place, Garland’s nomination went nowhere, and Neil Gorsuch, a judge on the U.S. Court of Appeals for the 10th Circuit nominated by President Donald Trump, was confirmed in April 2017 to fill the vacancy created by Scalia’s death. Even before Ginsburg announced her most recent bouts with cancer this summer, McConnell had already made clear last year that, if a vacancy occurred on the court in 2020, he intended to fill it.
At her Supreme Court confirmation hearing, Ginsburg told the Senate Judiciary Committee that her life story “could happen only in America.” Born Joan Ruth Bader on March 15, 1933, she was quickly nicknamed “Kiki” by her older sister Marilyn, who died in 1934 of meningitis at the age of six. The Baders lived in a working-class neighborhood in Brooklyn. Neither of her parents attended college: Her father, Nathan, came to the United States from Russia as a teenager and worked as a furrier; her mother, Celia Amster Bader, was born a few months after her parents arrived in the country from Austria and worked in a garment factory to put her brother through college. Ginsburg later said that her mother “made reading a delight and counseled me constantly to ‘be independent,’ able to fend for myself.” The Baders were Jewish, and Ginsburg recalled, as a child, seeing a sign in front of a Pennsylvania resort that said “No dogs or Jews allowed.”
Ginsburg attended public schools in Brooklyn, where she was a top student involved in a wide range of extracurricular activities – everything from playing the cello in the school orchestra to twirling a baton at football games. But she did not attend her high school graduation in June 1950. Her mother, who had been diagnosed with cervical cancer right around the time that Ginsburg began ninth grade, died two days before the ceremony.
Ginsburg received a full scholarship to Cornell University in Ithaca, New York, where her professors included Vladimir Nabokov, the Russian-born author who would publish the classic novel Lolita in 1955. Nabokov, Ginsburg would say later, “changed the way I read and the way I write. Words could paint pictures, I learned from him.” Another influential professor, Robert Cushman, a constitutional scholar, encouraged her to go to law school.
Soon after arriving at Cornell, she met Martin (Marty) Ginsburg on a blind date. Marty Ginsburg was, Ginsburg said, “the first boy I knew who cared that I had a brain.” She would describe him as “a partner truly extraordinary for his generation, a man who believed at age 18 when we met, and who believes today, that a woman’s work, whether at home or on the job, is as important as a man’s.” She married Marty in 1954, nine days after graduating from Cornell with the highest grade-point average for female students in her class.
Ginsburg gave birth to her daughter, Jane, in July 1955, 14 months before starting at Harvard Law School, where she was one of only nine women in a class of approximately 500. The Ginsburgs hired a caregiver to look after Jane on weekdays from 8 a.m. until 4 p.m.; Ginsburg would spend the late afternoon and early evening with Jane and then resume studying after her daughter went to bed.
At her confirmation hearing, Ginsburg recounted “many indignities” that she endured because of her gender while in law school but that, she said, “one accepted as just part of the scenery,” such as the time that a male employee told her that women were barred from a particular room in the library, which she needed to enter as part of her work for the law review. On another occasion, a dinner with the dean of the law school, Ginsburg and the other women in her class were famously asked to justify taking the place of a man.
During his third year of law school, Marty Ginsburg was diagnosed with testicular cancer, requiring two surgeries and radiation therapy. Ruth Ginsburg cared not only for Jane, then a toddler, but also for Marty, and typed his papers for him while keeping up with her own coursework. After Marty finished law school, the family moved to New York, where Marty took a job practicing tax law. Although Ruth Ginsburg had completed two years at Harvard, her degree would come from Columbia, where she graduated at the top of her class. She was the first person to be a member of both the Harvard Law Review and the Columbia Law Review. Ginsburg eventually received an honorary degree from Harvard in 2011 at a ceremony in which opera singer Placido Domingo, who was also receiving an honorary degree, serenaded her. Ginsburg later called the moment “one of the greatest moments of my life.”
Despite her top grades at Columbia, no law firm in New York would hire Ginsburg after graduation. Many years later, she observed that she had “struck out on three grounds. I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible.” Instead, Ginsburg began a clerkship with a federal judge in New York, who hired her only after the law professor who recommended her promised that he would supply a male lawyer if Ginsburg didn’t work out.
After finishing her clerkship in 1961, Columbia Law School hired Ginsburg as a research associate to co-author a book on civil procedure in Sweden – a job that required Ginsburg to learn Swedish. Ginsburg has said that “the only clear benefit I grasped immediately would be understanding the language spoken in Ingmar Bergman films,” but that the work would eventually prove “enormously enlightening” to her work with the U.S. legal system.
Ginsburg continued her work in academia teaching civil procedure at Rutgers University School of Law from 1963 to 1972. Her interest in the nuts and bolts of procedure would follow her to the Supreme Court, where she was often the first justice to speak up at oral argument and ask questions about possible procedural minefields in a case.
Ginsburg’s second child, James, was born in September 1965. Because Ginsburg did not yet have tenure at Rutgers and feared that she might not be rehired for the following year if the school knew she was expecting, she hid her pregnancy by borrowing her mother-in-law’s larger clothes until her contract was renewed in the spring.
In the early 1970s, Ginsburg was hired as the first tenured female law professor in Columbia’s history. She also became the co-author of a textbook on sex discrimination and the law – the first of its kind. At roughly the same time, she also broadened her focus on gender discrimination beyond academia to litigation, as she helped to launch the Women’s Rights Project of the American Civil Liberties Union and served as the ACLU’s general counsel from 1973 until 1980. The woman whose mother had admonished her “constantly” as a child “to be a lady” would become, as President Bill Clinton observed when he nominated her to the Supreme Court, a “path-breaking attorney” in the area of gender discrimination.
Ginsburg argued six cases before the Supreme Court, winning five. Her first argument came in 1973, in the case of Sharron Frontiero, an Air Force lieutenant who challenged a federal benefits law that treated married female members of the armed forces less favorably than their male counterparts. Representing the ACLU as a “friend of the court” supporting Frontiero, Ginsburg argued that laws that make distinctions based on sex should (like classifications based on race) be subjected to the toughest form of review to determine whether they are constitutional. Laws can pass that test, known as “strict scrutiny,” only if there is a close fit between a critical government interest and the means used to achieve that interest. Ginsburg prevailed by a vote of 8-1, but only four justices agreed with her that courts should apply strict scrutiny to gender-based classifications.
A major part of the strategy employed by Ginsburg and the ACLU was using men as plaintiffs to challenge gender-based classifications. As Ginsburg explained later, “the men were complaining about discrimination rooted in a certain way of thinking about women — as dependents, much like children, subservient to the male head of the household,” but these cases also “helped judges — who, in those days, were almost uniformly male — to understand that” these distinctions also harmed men and children.
In 1975, Ginsburg argued at the Supreme Court on behalf of Stephen Wiesenfeld, who wanted to obtain Social Security benefits that would allow him to stay home with his young son after his wife, a schoolteacher, died in childbirth. At the time, the benefits were available only to women who lost their husbands, not to men who lost their wives. The court unanimously agreed (with Justice William Douglas recused) that the exclusion of men from the benefits was unconstitutional. The court explained that the law was based on the same kind of “‘archaic and overbroad’ generalization” at issue in Frontiero’s case – here, the idea that men’s salaries are “vital to the support of their families,” while women’s salaries are not. But, the court stressed, Congress passed the law to ensure that, when one parent dies, the surviving parent can stay home with the couple’s children; in light of that purpose, the court concluded, providing the benefits only to women “is entirely irrational.”
Three years later, in Craig v. Boren, a case in which Ginsburg and the ACLU had filed a “friend of the court” brief, the Supreme Court established a new standard for gender discrimination cases. Although it was not as demanding as strict scrutiny, it was more stringent than the lowest standard, known as “rational basis,” under which a law will be deemed constitutional as long as it is “rationally” related to a “legitimate” government interest. Under the new test – known, appropriately enough, as “intermediate scrutiny” – a law must advance important government interests and be “substantially related” to the achievement of those interests. The new test came in what Ginsburg characterized in a 2008 speech as a “frothy” case: The court struck down an Oklahoma law that allowed young women to buy “near beer,” which is 3.2 percent alcohol, once they turned 18 but required young men in the state to wait until they were 21.
In 1980, President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit. The Ginsburgs moved to Washington, where Marty Ginsburg took a job teaching (including, sometime later, this reporter) at the Georgetown University Law Center. During her time on the D.C. Circuit, Ruth Ginsburg began what many regarded as an unlikely friendship with Antonin Scalia, then a judge on the D.C. Circuit who would soon be confirmed to the Supreme Court, and a staunch conservative with a larger-than-life personality. In a 2007 interview, Scalia said that he and Ginsburg were “two people who are quite different in their core beliefs, but who respect each other’s character and ability. There is nobody else I spend every New Year’s Eve with.” The relationship between Scalia and Ginsburg inspired a 2015 comic opera that ends with a duet between the two characters with the title “We Are Different, We Are One.”
When Justice Byron White announced his retirement in 1993, Ginsburg – who at age 60 was older than most nominees – was not necessarily regarded as a likely candidate for the opening. In a 2013 interview with Robert Barnes of the Washington Post, Ginsburg recounted that a law clerk at the time told her, “If you do nothing at all, maybe you’ll be 25 on the president’s list. So we have to do something to put you forward.” Marty, she explained, became her “campaign manager,” organizing what Barnes described as a “letter-writing campaign so aggressive it earned press attention.”
The campaign paid off: In a ceremony in the Rose Garden on June 14, 1993, President Bill Clinton nominated Ginsburg to succeed White. In her speech accepting the nomination, Ginsburg paid tribute to her mother. Calling her “the bravest and strongest person I have known, who was taken from me much too soon,” Ginsburg said, “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”
Ginsburg’s confirmation hearing, which began just over a month later, on July 20, 1993, was uneventful. In his opening remarks, Joe Biden, then the chairman of the Senate Judiciary Committee, observed that the coverage in the New York Times of the hearing’s start had been relegated to “page 8 or 10 or 12, which was the most wonderful thing that has happened to me since I have been chairman of this committee,” because it meant that the hearing had so far “generated so little controversy.” Throughout her hearing, Ginsburg declined to answer questions from the senators about how she might vote on issues – such as abortion – that she might confront as a justice. Since Ginsburg’s hearing, both nominees and senators have invoked the “Ginsburg rule” to explain why nominees ought not discuss their positions on cases or questions that might come before the Supreme Court. The Senate Judiciary Committee voted unanimously to send her nomination to the Senate floor, and on Aug. 3, 1993, she was confirmed by a vote of 96-3. She became the second female Supreme Court justice.
In his remarks nominating her for the Supreme Court, Clinton called Ginsburg a “centrist,” a “consensus-builder” and a judge who “can’t be called a liberal or a conservative.” But during her 27 years on the Supreme Court, Ginsburg was consistently one of the most liberal justices on a conservative-leaning bench. Perhaps as a result, Ginsburg wrote relatively few major opinions. One notable exception came early in her tenure at the court, when she authored the 1996 decision holding that the Virginia Military Institute’s policy of admitting only men violated the Constitution’s equal protection clause, which requires that people in similar situations receive the same treatment.
In an opinion joined by five other justices – Chief Justice William Rehnquist agreed with the majority’s result, but not its reasoning – Ginsburg rejected both of the arguments offered by Virginia to justify the exclusion of women from VMI, which is a public institution. Although there may be benefits to single-sex education, Ginsburg explained, Virginia had not shown that VMI was either created or maintained as an all-male school to ensure a variety of educational opportunities, including because there were no longer any all-female state colleges or universities. “However ‘liberally’ this plan serves the Commonwealth’s sons,” Ginsburg observed, “it makes no provision whatever for her daughters. That is not equal protection.”
Nor was Ginsburg persuaded by Virginia’s argument that, to accommodate women, the VMI program would have to be changed in a way that would “destroy” it. It’s true, Ginsburg conceded, that most women would not want to attend VMI – indeed, she posited, most men would not want to either. But that isn’t the question, she continued: The question is whether it violates the Constitution to bar women from VMI who want to attend and are able to do so. And the woman who had been one of only a handful of female students in her law school class 40 years earlier dismissed the idea that admitting women to VMI would destroy the school’s program and tradition as “hardly different from other ‘self-fulfilling prophec[ies]’” deployed in efforts to keep women out of the legal and medical professions.
Having determined that the exclusion of women from VMI violated the Constitution, Ginsburg then turned to the next question before the court: the remedy for that violation. Virginia urged the court to allow it to maintain VMI as an all-male institution and to create a women’s leadership program at a nearby private liberal arts school. After providing a laundry list of the differences between VMI and the proposed program, which Virginia sought to justify based on “important differences between men and women,” Ginsburg again reiterated that “generalizations about ‘the way women are’” and “estimates of what is appropriate for most women” “no longer justify denying opportunity” to all women. Indeed, she noted, although Virginia had argued that the women’s leadership program would not be modeled on a military program because most of its graduates would not want to pursue military careers, on “that reasoning,” the VMI program itself would not need to be a military one, because only about 15 percent of VMI cadets serve in the military after graduation. And in virtually every respect, Ginsburg added, from facilities to endowment to networking opportunities, the proposed women’s program would be a “pale shadow” of the one provided to men at VMI. Comparing the proposed program to the remedy that Texas had offered in response to a ruling that the exclusion of black students from the University of Texas Law School was unconstitutional, Ginsburg wrote that “Virginia has not shown substantial equality in the separate educational opportunities” for men and women.
During her tenure on the court, Ginsburg sometimes influenced decisions even when she didn’t write them. In 2009, the justices ruled – by a vote of 8-1 – that officials at an Arizona middle school violated the Constitution when they conducted a strip search of a 13-year-old girl suspected of having prescription-strength ibuprofen. At the oral argument in the case, Ginsburg’s male colleagues did not seem particularly troubled by the search. Justice Stephen Breyer, for example, observed that students had to strip down to their underwear to change for gym class. He asked, “How bad is this?” In a rare interview with USA Today after the argument, Ginsburg – who at the time was the only woman on the court – chastised the other justices, emphasizing that “[t]hey have never been a 13-year-old girl.”
But it was Ginsburg’s dissents – and the ornamental collars, known as jabots, that she wore over her judicial robes on the days that her dissents were announced – for which she was arguably best known. In some dissents, Ginsburg explained, she wrote in the hope that the other branches of government would take action immediately to grant the relief that the Supreme Court had denied. One such example was her 2007 dissent in Ledbetter v. Goodyear Tire & Rubber Co., in which the court – by a vote of 5-4 – ruled that Lilly Ledbetter, a manager at a Goodyear tire plant in Alabama, had filed her lawsuit alleging that she was the victim of gender discrimination too late. Ledbetter, the majority explained, should have challenged each pay decision that left her salary lower than her male counterparts within 180 days. (Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, represented Ledbetter at the Supreme Court.)
The rule that the court established, Ginsburg stressed in her dissent, was inconsistent with the “realities of the workplace.” Unlike with other decisions that an employee must challenge within 180 days — such as being fired, not getting a job or not being promoted — an employee may not know immediately that she is being paid less because of her gender, Ginsburg explained, or the initial gap between a female employee’s salary and that of her male counterpart may be sufficiently small that she may not want to make waves by filing a lawsuit. But that doesn’t mean, Ginsburg continued, that the female employee shouldn’t be able to challenge the pay gap later when it “becomes apparent and sizable.” Indeed, Ginsburg noted pointedly, the federal courts of appeals had overwhelmingly interpreted federal employment discrimination laws to allow an employee to challenge pay discrimination that occurs over time as long as the employee had received at least one paycheck reflecting that discrimination within 180 days.
Ginsburg’s dissent recited the evidence that Ledbetter presented at her trial that “demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular.” The majority’s conclusion that Ledbetter was not entitled to relief for that discrimination, Ginsburg contended, was not “the first time the Court has ordered a cramped interpretation of Title VII” of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex, “incompatible with the statute’s broad remedial purpose.” “Once again,” Ginsburg wrote, “the ball is in Congress’ court” and – as it has done before – “the Legislature may act to correct this Court’s parsimonious reading of Title VII.”
The court’s decision in Ledbetter’s case was issued on May 29, 2007. On Jan. 29, 2009, the Lilly Ledbetter Fair Pay Act was the first bill signed into law by President Barack Obama, with Ledbetter herself in attendance.
Ginsburg has described other dissents as “appealing to the intelligence of a future day” – for example, her dissent from the court’s 2013 decision in Shelby County v. Holder, in which the Supreme Court struck down the part of the Voting Rights Act that contains the formula used to identify the state and local governments that have to get federal approval – known as “preclearance” – before making any changes to their voting laws or procedures. In his opinion for the five-justice majority, Chief Justice John Roberts acknowledged that the coverage formula had once “made sense” because of the difficulty of ferreting out and combating racial discrimination in voting in some states. But, Roberts continued, “things have changed dramatically.” Indeed, he noted, minorities in the states subject to the preclearance requirement now register and turn out to vote at almost the same rate as white voters, and “minority candidates hold office at unprecedented levels.”
In a dissent that she read from the bench, Ginsburg described the Voting Rights Act as “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” But although the act has “wrought dramatic changes in the realization of minority voting rights,” Ginsburg cautioned, it has not eliminated discrimination. When it reauthorized the VRA for another 25 years, Congress assembled a “massive legislative record” demonstrating the need to continue the law, Ginsburg emphasized. But the majority’s opinion, she complained, “makes no genuine attempt to engage” with that record, instead relying on “increases in voter registration and turnout as if that were the whole story.” “One would expect more,” she wrote, “from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.” Ginsburg was particularly critical of the majority’s suggestion that the coverage formula should be invalidated because it was not based on “current conditions.” “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg countered, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The Supreme Court’s ruling in Shelby County was the target of many liberals’ ire, leading to a groundswell of support for Ginsburg’s dissent. Shana Knizhnik, then a law student at New York University, depicted Ginsburg on social media as the “Notorious RBG,” marking the then-79-year-old justice’s unlikely ascent to pop-culture stardom. In the years that followed, Ginsburg was the subject of both an Oscar-nominated documentary and a feature film, and she was featured regularly in sketches on Saturday Night Live, where she was played by actor Kate McKinnon. And she was certainly the only justice to inspire a wide range of merchandise bearing her likeness – everything from t-shirts and candles to chocolates, not to mention a book by her personal trainer.
Although Ginsburg’s legions of fans liked to circulate photos of her doing planks or lifting weights, much of the news coverage of Ginsburg in recent years concentrated on her health and the possibility that she would have to step down from the bench. In 1999, she was treated for colon cancer; in 2009, she announced that she had surgery for early-stage pancreatic cancer. By early 2014, Ginsburg (as well as, to a lesser extent, Justice Stephen Breyer, then in his mid-70s) faced increasing pressure to retire to allow Obama to appoint her successor, rather than run the risk that Republicans would win the Senate in November 2014 and the White House in 2016. But Ginsburg stood firm, telling Elle Magazine in September 2014 that Obama would not be able to appoint “anyone I would like to see in the court.” “As long as I can do the job full steam,” Ginsburg said, she would continue to serve on the court. Roughly two months after the interview was published, Ginsburg had heart surgery to place a stent in a coronary artery.
The focus on Ginsburg’s health intensified after Trump’s election in 2016, with Trump reportedly speculating that he would have the chance to appoint four justices – including a successor to Ginsburg – by the end of his first term. Ginsburg was treated for cancer three times during Trump’s tenure in office. In December 2018, she had surgery to remove cancerous growth from her lungs. In August 2019, the court announced that Ginsburg had recently finished radiation therapy to treat a second bout with pancreatic cancer. And in July 2020, she announced that she had begun chemotherapy to treat cancerous lesions found on her liver. In a statement released by the court, Ginsburg once again reiterated that she planned to stay on the court for the foreseeable future, reminding the public that she had “often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that.”
On March 4, the court heard oral argument in a challenge to a Louisiana law that required doctors who perform abortions in that state to have the right to admit patients at nearby hospitals. According to the statement that she released later, Ginsburg had already been diagnosed with a recurrence of cancer, but she appeared to be in fine form on the bench, peppering the lawyers defending the law with questions. Although the justices took the bench briefly the following Monday, March 9, to swear new lawyers into the Supreme Court bar, the Louisiana case was the final argument of the court’s February argument session. Eight days later, the court closed its doors to the public because of the coronavirus pandemic, eventually canceling its March and April argument sessions and holding a historic May argument session by telephone.
At the conclusion of the argument in the abortion case, most of the justices left the courtroom quickly, no doubt eager to escape the public gaze. But, as had become his custom during the 2019-20 term, Justice Clarence Thomas – Ginsburg’s neighbor on the bench – waited to extend a hand to Ginsburg as she made her way carefully down the steps leading away from the bench. The reporters sitting in the press section craned their necks to watch them leave, and Ginsburg’s tiny figure disappeared behind the curtain. For most of us, it was the last time we would see her in the courtroom.
This article was originally published at Howe on the Court.