This is a guest post written by Nicola Evans
“Sixty years ago, Ruth Bader Ginsburg applied to be Supreme Court Clerk. She’d studied at two of [our] finest law schools and had ringing recommendations. But because she was a woman she was rejected. Ten years later, she sent her first brief to the Supreme Court- which led it to strike down a state law based on gender discrimination for the first time. And then, for nearly three decades, as the second woman ever to sit on the highest court in the land, she was a warrior for gender equality – someone who believed that equal justice under law only had meaning if it applied to every single American…”
One would be forgiven for assuming that a woman wrote this tribute to the late Ruth Bader Ginsburg. It is in fact by Barack Obama. It is perhaps apt that as the first American President of colour, he could relate to Justice Ginsburg on several levels, including that of being a lawyer.
Tributes to Ruth Bader Ginsburg’s Legacy
Justice Ginsburg’s work has influenced and inspired many women and men. Her legacy cannot be underestimated. Recent tributes include Sheryl Sandberg, who said:
“She was first in her class and she couldn’t find a job. So she did what brilliant, ambitious women have always done when the doors of power slammed in their faces: she found another way. She built a world-changing career fighting for women’s legal equality one case at a time, taking apart systemic gender discrimination piece by piece.”
Hillary Clinton, another woman who broke barriers in her early career and more recently with her presidential bid, also paid tribute to Ginsburg:
“Justice Ginsburg paved the way for so many women, including me. There will never be another like her.”
RBG’s Legal Journey
Ginsburg was born on March 15, 1933. She grew up in a low-income, working-class neighbourhood in Brooklyn to Jewish parents. Ginsburg’s mother, Celia, was of great intellect but her education was cut short and she worked in a garment factory. Celia was a major influence in her life. Perhaps this early childhood memory was what fuelled much of Ginsburg’s work throughout her career in furtherance of women’s rights.
Ginsburg was only the second female Supreme Court justice and a hugely significant one at that, who was a champion of gender equality.
Perhaps even more significant than her considerable achievements during her tenure as a Supreme Court Justice (which commenced in 1993 under the Clinton administration and continued for nearly three decades) was the work she did as a lawyer before ascending to the Supreme Court. She changed the course of American law for gender equality and left a sweeping legal legacy.
Ruth Bader Ginsburg and Thurgood Marshall: Two Role Models
When President Bill Clinton nominated Ginsburg to the Supreme Court, he compared her legal work on behalf of women to the work of Thurgood Marshall on behalf of African Americans. Thurgood Marshall was an American lawyer and civil rights activist who also served as an Associate Justice and who argued the landmark case (before his appointment as justice) of Brown v. Board of Education of Topeka 347 U.S. 483 (1954). This case outlawed segregation in schools.
A comparison of Ruth Bader Ginsburg with Thurgood Marshall shows that social change comes not just from elections and demonstrations (as important as these are) but also from battles fought in court. The landmark Brown case was arrived at by decades of civil rights cases argued by Thurgood Marshall as part of his involvement in the NAACP Legal Defence Fund. Marshall went on to establish the LDF as a separate entity from the NAACP.
As Marshall had done for civil rights as an NAACP attorney, Ginsburg did likewise to lead the American Civil Liberties Union’s (ACLU) Women’s Rights Project to win historic court victories for gender equity from 1972-1980.
Marshall was noted for his ‘go slow’ approach to establishing more civil rights protections to African-Americans after founding the NAACP ‘ Legal Defense Fund in the 1940’s. This ‘building blocks’ approach, noted by Ginsburg of Marshall’s work, was what led to the court’s unanimous ruling in the Brown case. Ginsburg emulated this approach.
The parallels between Marshall and Ginsburg don’t only hold true for their legal careers, but also apply to their time as students.
Ginsburg who couldn’t secure a clerkship or law firm position despite having a top ranked degree, went on to co-found the Women’s Rights Project at the ACLU and then ascend the Supreme court after 13 years of being a court lawyer.
Similarly, Thurgood Marshall was denied admission to his home state law school in Maryland on the basis of race. Marshall went on to serve on the federal appeals court in New York before becoming the nation’s first black solicitor general and thereafter being nominated to the Supreme Court by President Lindon Johnson in 1967.
Professor Jonathan Entin clerked for Ginsburg when she was an appeals court judge and has written about the comparison between Ginsburg and Marshall in their work against gender and racial discrimination respectively. He notes that when Ginsburg began her work in the 1960’s she faced more ‘daunting’ prospects than Marshall in terms of legal precedent. When Marshall began his work challenging racial segregation in the 1930’s, the Supreme Court had already rejected some forms of racial discrimination (for example a Supreme Court ruling in 1914 had stated that denial of first class accommodation on trains to blacks violated the Fourteenth Amendment (McCabe v. Atchison, T & S.F.Ry 235 U.S. 151, 161-62 (1914).
RBG’s Work on Gender Discrimination
However, insofar as gender discrimination, the courts were still behind the times. Even in 1961 the Supreme Court, under Chief Justice Earl Warren, unanimously upheld the constitutionality of a jury selection system in Florida that discriminated against women on the grounds that “women are at the center of home and family life.” The observation reflected dominant social values at the time.
Perhaps somewhat surprisingly for someone who will be remembered as a warrior for gender equality – long before the #MeToo movement – some of Justice Ginsburg’s most notable cases involved sex discrimination against men. Her first case in 1974, although unsuccessful, showed her willingness to work on behalf of men challenging gender discrimination. In this case a Florida widower asked for a property tax exemption that state law only allowed to widows. Ginsburg argued that rigid attitudes about sex roles could harm everyone.
Ruth Bader Ginsburg sometimes said that one of her favourite cases as a lawyer involved a man whose wife died in childbirth, leaving him alone to care for their newborn son. In Weinberger v. Weisenfeld 420 U.S. 636 (1975)
Ginsburg convinced the Supreme Court that the section of the Social Security Act that denied fathers benefits because of their sex was unconstitutional. She won the case unanimously.
Some 20 years after she won his case, Wiesenfeld subsequently testified at her confirmation hearing to the Supreme Court in 1993. Mr Weisenfeld recently commented on his long standing friendship with Ginsburg and the case she won for him saying that ‘[we] found out three justices discussed the case before they even heard it. They were discussing how disgusting it was that a male wanted to stay home and take care of a child.’
RBG’s Work on Challenging Gender Stereotypes
Ginsburg wanted to shake up preconceived notions of the stereotypical gender positions in a family unit. In retrospect, this was decades ahead of her time.
It is interesting that she has inspired not just women but men in re-evaluating what the family unit should look like. One of Ginsburg’s clerk’s, Ryan Park, wrote a piece in The Atlantic Monthly, praising his former boss for inspiring him to become a stay-at-home father after completing his clerkship. He quoted her in saying that “gender lines in the law are bad for everyone: bad for women, bad for men, and bad for children”
I find this quote particularly interesting and inspiring as it shows the considered view that Ginsburg always took: thinking more laterally than simply the case she was dealing with at the time. The forethought that a child’s view of their parents is as important in shaping their own thought processes as how their parents view one another’s role is really a very holistic one. Ginsburg didn’t just take this view as a bystander, her own marriage was very much modelled on equal parenting- something, which at the time she was first practising law, was the exception, not the rule.
Latterly as a Supreme Court Justice, Ginsburg was famous more for her dissenting opinions than her majority opinions. She may have served as a more moderate liberal influence in a Conservative court during her tenure as a Justice, but the changes she championed as a young lawyer for gender equality were now there, enshrined in law.
Ginsberg’s comparison to Thurgood Marshall is both timeless and timely. Both fought for the marginalised in society. Ginsberg made it her life’s work to force the law to acknowledge and respect those who had not been heard and to enshrine such recognition in law.
In Ruth Bader Ginsburg’s own words “Real Change, enduring change, happens one step at a time”
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