The Life and Legacy of Ruth Bader Ginsburg
nytimes.com
“I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.”
Justice Ruth Bader Ginsburg, the second woman and the first Jewish woman appointed to the US Supreme Court died on 18th September at her home in Washington due to complications of pancreatic cancer at the age of 87.
Ruth Bader Ginsburg, a.k.a. Notorious RBG, has left a significant mark on everyday life in America. Her legacy, in a way, is the life lived by American men and women today. The legal precedents she helped established enabled men and women to pursue the life they want. Because of her women in America are closer to gender equality. For example, before the mid-’70s, they were often denied access to their own credit cards, “on the presumption that their husband controlled the family’s financial assets.” Now because of Ruth Bader Ginsburg they have access to credit cards, mortgage applications and equal status under tax law.
She was a lifelong advocate of gender equality, who often joked that there would be enough women on the nine-seat Supreme Court "when there are nine".
She was born in an immigrant family in Brooklyn. She was encouraged by her family to pursue her education. When her nomination was announced, Justice Ginsburg paid tribute to her mother, who died a day before her high school, she 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.”
She met her husband, Marty Ginsburg at Cornell, which attended on a scholarship. The two partners were polar opposites. She was reserved and chose her words carefully, with long pauses between sentences and he was ebullient raconteur and quick with jokes. Their relationship reflected gender parity that was well ahead of its time. Marty Ginsburg reportedly told a friend that the most important thing he did in his own life "is to enable Ruth to do what she has done".
Following their marriage, the couple settled in Oklahoma, where Ms Ginsburg applied for a government job at local Social Security office. Her offer was withdrawn when she informed the office that she was pregnant — with Jane, her first child. She rationalised the situation as ‘just the way things are’ and went on to accept a lower level job at the office instead. This experience later prompted her to hide her second pregnancy at work.
Early in their marriage, the couple enrolled at Harvard Law school. There were no women on the faculty. During Ms. Ginsburg’s first year, the Dean, Erwin Griswold, invited the nine women in the class to dinner and asked each why she felt entitled to be in the class, taking the place of a man. Ruth replied that because her husband was going to be a lawyer, she wanted to be able to understand his work.
The couple hit a terrible point in their life when Mr Ginsburg was diagnosed with testicular cancer in his third year. He was rarely able to attend his classes due to poor prognosis. Ms Ginsburg, while attending class herself, caring for a young daughter, typed up Mr Ginsburg’s notes and helped him study. He recovered and graduated on time. Ruth went on to win a seat on the Harvard Law Review in the same period. She was the first woman to do so.
When her husband received a job offer in New York, Ms. Ginsburg asked Harvard if she could spend her final year at Columbia and still receive a Harvard degree. The request was denied, so she transferred and received a Columbia degree, tying for first place in the class. During her time at Columbia, she became a member of Columbia Law Review. She also has honorary degrees from Willamette, Princeton and Harvard.
Despite her stellar academic record, she found herself at a disadvantaged due to her sex. A firm that had employed her between the terms at Harvard did not offer her a permanent position nor did the 12 firms which she interviewed for.
"Not a law firm in the entire city of New York would employ me… I struck out on three grounds: I was Jewish, a woman and a mother."
Ruth Bader Ginsburg
She was recommended for a position as a law clerk to Justice Felix Frankfuter who refused to even invite her for an interview as he had never hired a woman.
She was finally employed as a law clerk by federal district judge, Edmund L. Palmieri, who agreed to hire her only after one of her mentors, Prof. Gerald Gunther, threatened never to send the judge another law clerk if he did not. Following this experience, she finally received several offers from major law firms, but instead she chose to return to Columbia, to work on the law school’s Project on International Procedure. The project required her to learn Swedish and spend some time in Sweden. Her time at Sweden was a formative experience for her. Feminism was flourishing in Sweden, there was nothing unusual about women combining work and family obligations and, childcare was readily available. During this time, Ms. Ginsburg produced a treatise on Swedish civil law, which remains a leading work in the field, along with a dozen other articles and books.
After finishing with the project, she applied for teaching jobs at law schools. After more prestigious law schools, including Columbia and New York University, would not hire her, she took a job teaching at Rutgers Law School, where she was the second woman on the faculty. In fact, fewer than two dozen women were teaching at all American law schools combined at the time. At Rutgers when she discovered that her salary was lower than that of her male colleagues, she joined an equal pay campaign with other women teaching at the university, which resulted in substantial increases for all the complainants.
While at Rutgers, she completed a textbook, Civil Procedure in Sweden (1965), published the same year her son, James, was born. In 1970, Ginsburg co-founded The Women’s Rights Law Reporter, the first law journal in the United States devoted to gender equality issues. Two years later, she moved from Rutgers to Columbia University Law School, and became the first woman to receive tenure there.
In addition to teaching, she began handling discrimination cases for the American Civil Liberties Union (ACLU), New Jersey. Melvin Wulf, her childhood friend and national legal director for the ACLU, heard about her work and brough her more cases. One of those cases was Reed v Reed, which eventually became her first Supreme Court victory. The 88 page brief she filed in that case – an inventory of all the ways in which law served to reinforce society’s oppression of women – became famous in the legal history as the “grandmother brief” on which feminist lawyers drew on for many years. The case extended the equal protections clause of the 14th Amendment to women. In 1972, she successfully argued before the 10th circuit in Moritz v Commissioner on behalf a bachelor who had been denied a caregiver deduction because of his gender, extending the equal protections clause. The laws in question didn’t account for people like Mr Moritz in those circumstances and now because of Ginsburg, they do.
In 1972, she found the ACLU’s Women’s Rights Project, the same year she joined Columbia Law as a professor. Ms Ginsburg set off on her project to free both sexes, from gender roles assigned by the society and harness the 14th Amendment to breakdown the structures enforced by law which enforce the gender roles. As the director of Women’s Rights Project, she presented six cases to the Court, winning five, successfully persuading the Supreme Court that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well. Rather than asking the court to strike all gender discrimination at once, she took a strategic course, aiming at statues which discriminated against men and appeared to favour women and built on each successive victory. She purposely chose male plaintiffs to appeal to the sympathy of the 9 male judges and show that gender discrimination was harmful to both men and women.
Justice Ginsburg is a rare Supreme Court justice whose most influential work was before her time as a justice. Legal scholars regard her work as a lawyer as significant in advancing equal protections for women. Her victories forced the laws to change nationwide. Within just five years much of the family, tax and financial law which codified the men as breadwinners and women as dependants were declared unconstitutional. At the time the supreme court first ruled in Ginsburg’s favour, in Reed v Reed in 1971, many banks still would not issue women credit cards. By the end of it, her work had helped to usher in a feminist revolution that has changed the face of American families and expanded the possibilities for American women’s lives.
In 1980, President Jimmy Carter appointed Ruth Bader Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit. Martin Ginsburg followed her to Washington, giving up his lucrative New York Law practice and became a Professor at Georgetown University Law Centre. He later vigorously lobbied behind for Ms Ginsburg’s appointment to the Supreme Court. Clinton officials said it was his tireless lobbying that brought Ginsburg's name to the shortlist of potential Supreme Court nominees in 1993.
At the appeals court, she earned a reputation as a centrist, voting with conservatives many times and against, for example, re-hearing the discrimination case of a sailor who said he had been discharged from the US Navy for being gay. This along with her criticism of Roe v Wade left some feminists leaders worried when her supreme court nomination was announced. Ginsburg supported abortion rights but did not support the sweeping judgment in Roe v Wade which was wrong according to her because “the framers of the Constitution allowed to rest in the court’s hands large authority to rule on the Constitution’s meaning” but “armed the court with no swords to carry out its pronouncements”.
Addressing the Senate Judiciary Committee, Judge Ginsburg said her approach to judging was “neither ‘liberal’ nor ‘conservative.’” She did, however, make clear that her support for the right to abortion, despite her criticism of Roe v. Wade, was unequivocal. In answer to a question from Senator Hank Brown, a Colorado Republican, she said: “This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
Her nomination was confirmed 92-3 by the Senate.
Justice Ginsburg inherited a seat in an increasingly conservative supreme court. She became the de facto leader of the four-justice liberal bloc in 2010. Unless they could attract a fifth vote, the four were often in dissent. In the court it was her powerful and pointed dissenting opinions that earned her stardom. She would often switch the decorative collars she wore with her judicial robe on days when she would be announcing a dissent.
Here are some of her notable dissents:
Justice Ginsburg’s powerful dissenting voice emerged in 2006-7. One of her proudest dissents was in Ledbetter v Goodyear Tire and Rubber Company. The court held that the statutory 180-day deadline to complain about unequal pay starts on the day one receives their first paycheck. Justice Ginsburg wrote a strong dissent, calling Congress to overturn the decision. The impact of her unusual direct call to Congress was magnified because she took the unusual step of announcing her dissent from the bench. Congress listened and enacted the Lilly Ledbetter Fair Pay Act of 2009. She kept a framed copy of the act in her house.
Gonzales v Carhart - the court by a 5-to-4 vote upheld a federal law criminalizing a particular procedure that doctors used infrequently to terminate pregnancies during the second trimester. Justice Ginsburg wrote in her dissenting opinion that the majority opinion relied on “an anti-abortion shibboleth” — the notion that women regret their abortions — for which the court “concededly has no reliable evidence.” The majority’s “way of thinking,” she wrote, “reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”
One of her best-known dissents came in Shelby County v. Holder in which the majority eviscerated the Voting Rights Act of 1965 by invalidating the provision that required Southern jurisdictions, along with some others, to receive federal permission — “preclearance” — before making a change in voting procedures. “What has become of the court’s usual restraint?” Justice Ginsburg demanded in an ironic reference to conservative calls for “judicial restraint.” And she ended her announcement with these words: “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”
Justice Ginsburg dissented in Bush v. Gore, the case that ended the Florida recount and effectively decided the 2000 presidential election. Objecting to the court’s majority opinion favouring Bush, Ginsburg deliberately and subtly concluded her decision with the words, “I dissent” a significant departure from the tradition of including the adverb “respectfully.”
Justice Ginsburg was not as influential during her later career as she might have been had she had more progressive colleagues. With notable exceptions, her presence on the supreme court was less a full use of her talents and more of a check against the wildly conservative and right-wing justices.
"Dissents speak to a future age…. the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow.”
-Ruth Bader Ginsburg
Justice Ginsburg has also written roughly 200 majority opinions. Here are some of her most famous majority decisions –
One of her favourite majority opinions, she often said, ruled that the Virginia Military Institute’s male-only admissions policy violated the Equal Protection clause. Justice Ginsburg made it a point to make it clear that the Constitution did not require ignoring all differences between the sexes. “Inherent differences between men and women, we have come to appreciate, remain cause for celebration,” she wrote, “but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” Any differential treatment, she emphasized, must not “create or perpetuate the legal, social, and economic inferiority of women.”
In 2015, Ginsburg sided with the majority on two landmark cases – in the first, she was one of six justices to uphold a crucial component of the 2010 Affordable Care Act, commonly known as Obamacare. In the second, Obergefell v Hodges, she sided with the 5-4 majority, legalising same-sex marriage in all 50 states.
Other than her judgments, Justice Ginsburg is known for her tenacity. She beat colon cancer in 1999 and early stage pancreatic cancer 10 years later. She only missed oral arguments twice because of illness. She even came to the court the morning after her husband died in 2010, after 56 years of marriage, because that was would her husband ‘[Marty] would have wanted’. In his final days, Mr Ginsburg left a note, handwritten on a yellow pad, for his wife to find by his bedside.
“My dearest Ruth,” it began. “You are the only person I have loved in my life, setting aside, a bit, parents and kids and their kids, and I have admired and loved you almost since the day we first met at Cornell.” He added, “What a treat it has been to watch you progress to the very top of the legal world!!”
Her longevity had brought immense relief and hope to liberal America, which was concerned that another vacancy on the court would allow the conservative majority to become even more powerful under Trump’s rule, who she once called a ‘faker’. Now with her death, their worst fears have come alive.
She was inducted into the National Women’s Hall of Fame in 2002. She was named one of the 100 Most Powerful Women (2009), Glamour magazine’s Women of the Year 2012 and one of Time magazine’s 100 most influential people (2015). In 2009 she was awarded a Lifetime Achievement Award from Scribes – The American Society of Legal Writers and in 2019 she was awarded $1 million Berggruen Prize for Philosophy and Culture which she donated in its entirety to multiple charities.
She was anointed the name ‘the Notorious R.B.G.’ by a law student on Tumblr. It is a play on the name of the Notorious B.I.G., a famous rapper who was Brooklyn-born, like the justice. Her expression serene yet severe, a frilly lace collar adorning her black judicial robe, her eyes framed by oversize glasses and a gold crown perched at a rakish angle on her head become an internet sensation among young feminists.
Her life and work were celebrated in books such as 2015 biography The Notorious RBG, and in the 2018 film, On the Basis of Sex, which portrays her early career and the landmark sex discrimination case of Moritz v. Commissioner of Internal Revenue.
After her death, she has become the first woman and the first Jewish American in US history to lie in state at the US Capitol in Washington DC. She is to be buried in a private ceremony at Arlington National Cemetery.
Ruth Bader Ginsburg will forever be remembered as a legal colossus who stood tall among men.
by Swarnim Agrahari