Ruth Bader Ginsburg’s Long Fight for Equality
November 1, 2018 | Washington Monthly
After earning admission to Harvard Law School but before starting classes, Ruth Bader got married and became Ruth Bader Ginsburg. In light of her new status, the law school asked to see the financial statements of her husband’s father, as if in some pantomime of a dowry negotiation. He was wealthy. Harvard decided not to honor the scholarship it had awarded to Miss Bader—an unimaginable presumption had she been a man. The issue of money settled, the law school’s famous dean, Erwin Griswold, asked Ginsburg and the eight other women in the class of 1959 why they had taken seats that could have gone to men. Ginsburg responded by acing her exams and making the law review. The young editors assembled for a picture, which shows her as one of two women in a sea of horn-rims and neckties. A pop of white at her collar stood out from her dark blouse. It would soon become the badge of a feminist icon.
Ginsburg’s uneasy reception in the legal profession continued after graduation. She had transferred to Columbia and tied for first in her class, but no law firm would hire her. Partners groused that if they needed an affidavit prepared, she would probably be out with a sick child. Several professors lobbied to secure her a judicial clerkship instead. Federal district judge Edmund Palmieri took a chance on Ginsburg and later called her one of the best clerks he’d ever hired. But other judges higher up the line of the federal bench declined to follow suit. Judge Learned Hand of the U.S. Court of Appeals did not want to swear in front of a lady. Justice Felix Frankfurter of the U.S. Supreme Court asked whether she wore pants or skirts.
Instead of serving a second clerkship, Ginsburg joined the academy, becoming one of the first tenured female law professors in the country. Her dean at Rutgers Law School paid her less than male members of the faculty. She called him on the disparity, but he said it was only fair that she earn less than a male professor with a family to support. Ginsburg swallowed the insult and worked harder, teaching courses in comparative law and civil procedure and taking an interest—little wonder—in the new field of sex discrimination. She did all this while raising two children. At one point she interrupted a lecture after being handed a note: “Son ingested Drano; taken to nearest hospital.”
As the historian Jane Sherron De Hart writes in Ruth Bader Ginsburg, Ginsburg’s “process of radicalization was cumulative and strikingly thorough.” It certainly did not begin in law school or end at Rutgers. Ginsburg’s early life in the black-and-white era of America’s sexist dark ages entailed one humiliating act of discrimination after another. After her beloved mother, Celia, died when Ginsburg was seventeen, Ginsburg was incensed to learn that women were not allowed to sit shiva, the traditional Jewish period of mourning. When she became pregnant while working for the Social Security Administration as a claims examiner, she received a demotion on the assumption that she could no longer travel. Her law school classmates nicknamed her “Bitch.” “Better Bitch than Mouse,” Ginsburg replied.
De Hart’s book is the first full biography of Ginsburg, who was the second woman to join the Supreme Court, where she continues to serve. Ruth Bader Ginsburg is passionate and thorough, and represents a major event in scholarship on American law. It is not the first notable treatment of Ginsburg’s life: Fred Strebeigh’s outstanding Equal: Women Reshape American Law (2009) weaved Ginsburg’s career as an ACLU attorney into a broader narrative of female empowerment in the legal profession. De Hart enjoyed access to the justice and her ACLU papers, and her book’s contribution comes in chapters on Ginsburg’s life before she joined the Court in 1993. Like Thurgood Marshall, who patiently chipped away at Jim Crow as an advocate and then a justice, Ginsburg used ingenuity, tenacity, and strategic brilliance to attack the legal foundations of discrimination in America.
The legal field of sex discrimination was so new in 1970 that there was no casebook for it. For her Rutgers course “Women’s Rights: Sex Discrimination and the Law,” Ginsburg cobbled together a mimeographed packet of cases and legal commentary. She and other path-breaking scholars like Barbara Babcock, Ann Freedman, and Sue Deller Ross “were doing more than creating syllabi,” De Hart writes; “they were defining a field.” It brought together in one focused pursuit Ginsburg’s intellectual curiosity, her commitment to equality, her professional ambition, and the broader social movement toward women’s liberation. Ginsburg found the possibilities of the moment and “the sheer gutsiness” of the enterprise invigorating.
She soon found a practical application for her scholarship, becoming the first director of the ACLU’s Women’s Rights Project in 1971 while continuing to teach. (Ginsburg joined Columbia Law School’s faculty in 1972, and led female professors across the university in a bid for equal pay.) At the ACLU, Ginsburg oversaw a small staff of young, enterprising attorneys and law students. Their work was supported by grants from, of all places, the Playboy Foundation, as well as the Ford Foundation, which insisted that its funds not be used for abortion litigation. This limitation would keep Ginsburg from working directly on Roe v. Wade; if she had, it could well have sunk her Supreme Court nomination three decades later. The Women’s Rights Project buzzed with energy and represented plaintiffs in many high-stakes cases before the Supreme Court. A bright yellow sign hanging in the office said: “Women Working.”
In the six cases that Ginsburg argued before the Court, the challenge was not merely to strike down laws enshrining gender-based discrimination. Ginsburg sought more broadly to undermine the stereotypical view of men and women that pervaded American law. This often meant approaching sexism from unexpected angles, and even with male plaintiffs. For instance, in Califano v. Goldfarb (1977), Ginsburg persuaded the Court to strike down a federal statute granting Social Security survivor benefits to widows on more favorable terms than widowers. Her plaintiff was a sympathetic pensioner who had recently lost his wife. In Frontiero v. Richardson (1973), the Court invalidated a federal law granting a larger housing allowance to male members of the armed forces than to women. Sharon Frontiero challenged the law because her husband was a full-time student and relied on her support. The Court ruled in her favor.
Justice William Brennan wrote the majority opinions in both Frontiero and Goldfarb, each of which attacked the stereotype of men as breadwinners and women as dependents. Brennan’s role in Ginsburg’s career represents a missed opportunity for De Hart. As Seth Stern and Stephen Wermiel point out in their outstanding biography, Justice Brennan: Liberal Champion, Ginsburg and Brennan became allies from across the bench. The two did more together, as advocate and judge, to apply principles of equal protection to sex discrimination than anyone else in American law—despite Brennan’s own personal sexism. It would have been fascinating to learn more about Ginsburg’s side of this partnership. Yet De Hart spends little time probing their unique alliance. Here, as elsewhere, De Hart’s biography sticks to the official record rather than going behind the scenes.
Ginsburg achieved success before the Court through meticulous preparation. She displayed “legendary self-discipline, rigor, and tenacity,” De Hart writes. Working late into the night, she drafted briefs in spare, precise prose. Ginsburg’s manner of persuasion bespeaks a temperament that is fundamentally cautious. She speaks in slow, measured sentences, with every word in its right place. Her written work product is deliberate and incremental. She does not wave her arms on the page, instead drafting briefs and opinions that are focused and clear. In this way she earned a reputation as a judge’s judge, giving practical, usable guidance to attorneys and the public. To borrow a phrase from the cellist János Starker (who borrowed it from his friend György Sebök), her motto might be: “Don’t get excited. Create excitement.”
Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in 1980. But first she expressed interest, unsuccessfully, in the Court of Appeals for the Second Circuit in New York. Her interview was a disaster. The all-male selection committee made clear that they wanted expertise in corporate and securities law, not ACLU-style activism, and the spot went to someone else. Ginsburg then became a perennial contender for a seat on the D.C. Circuit, with her husband, Marty—by all accounts a saint if ever there was one—leading the campaign for her nomination. One of the country’s preeminent experts on tax law, he worked his high-powered clients in business and politics. Ginsburg won over each member of the Senate Judiciary Committee except Strom Thurmond. De Hart’s seven pages on her thirteen-year judgeship are too brief, but they do establish Ginsburg as a moderate colleague given to friendships with colorful conservatives like fellow judges Robert Bork and Antonin Scalia.
Ginsburg’s nomination to the Supreme Court was more controversial. A new wave of feminist scholars and activists declined to offer support, questioning Ginsburg’s centrist judicial record and her principled objection to Roe v. Wade. (A passionate defender of a woman’s right to choose, she thought the Court’s decision should have rested on equal protection principles rather than vague concepts of due process and privacy.) Ginsburg’s use of male plaintiffs to attack discriminatory laws also came in for criticism. De Hart writes, with not a little incredulity, “Ruth Bader Ginsburg—pioneering sex-discrimination strategist and litigator of the 1970s—had by 1993 morphed into an outmoded supporter of formal equality, safely ensconced behind the bench and detached from the fray.”
Yet with the enthusiastic support once more of her husband, and the backing of President Clinton and Senator Daniel Patrick Moynihan, Ginsburg survived her confirmation hearings with “preternaturally controlled testimony.” Her refusal to answer questions about key precedents or to entertain hypotheticals actually set the template for a process that has lately frustrated Democrats. In remarks given on the occasion of her nomination, Ginsburg spoke movingly of her late mother, who had supported her education and encouraged her to devote her life to work of consequence. “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 as much cherished as sons.”
The 200 pages of De Hart’s book on Ginsburg’s tenure as a Supreme Court justice are a disappointment. The fault lies mainly with Ginsburg herself: she has stipulated that her papers from the Court not be available to researchers until 100 years after the death of her last-surviving Supreme Court colleague. This decision all but guarantees that not a single person currently living will ever see them, given that Neil Gorsuch, age fifty-one, likely has at least thirty more years on the bench. Ginsburg’s stipulation is a profound mistake and a disservice to history; one hopes she will reconsider. In addition to being denied access to Ginsburg’s Supreme Court papers, De Hart did not interview the justice’s colleagues or her many law clerks. She does not say whether Ginsburg asked her not to, but the upshot is a missed treasure trove. The result is a series of superficial case discussions that, while offering a useful overview, provides little new material.
Ginsburg’s time on the Court has been characterized by increasingly progressive decisionmaking, collegiality across the ideological fault line, and judicial craftsmanship of the highest quality. Her two most important opinions are the landmark decision in United States v. Virginia (1996), striking down the Virginia Military Institute’s ban on female students, and the dissent in Shelby County v. Holder (2013), which invalidated a key section of the Voting Rights Act. In both cases Ginsburg marshalled rigorous arguments and restrained passion to produce highly persuasive opinions. De Hart pays less attention to Ginsburg’s role in certain other important areas of jurisprudence, such as the war-on-terror cases of the 2000s and Ginsburg’s critical—but less flashy—contributions to the law of civil and criminal procedure, where she has written important decisions for the Court. These areas deserve greater consideration in the next biography.
In one case that brings together Ginsburg’s tactical brilliance and the frustrating limitations of this book, Ginsburg persuaded Chief Justice William Rehnquist to uphold the Family Medical Leave Act. The statute requires employers to offer leave for family and medical emergencies, thereby helping balance work with responsibilities that fall disproportionately on women. Rehnquist was no champion of women—he once upbraided the solicitor general because a female staff member argued a case in a suit color he disliked. But he wrote a broad majority opinion in Nevada Department of Human Resources v. Hibbs (2003) that ratified Ginsburg’s years of industry by condemning the “sex-based over-generalization” of the family. De Hart hints that Ginsburg played a key behind-the-scenes role in securing the chief’s vote. If only we could learn more about it.
As the Court has moved rightward, Ginsburg has become the leader of the opposition—with mixed returns. She has wisely encouraged the other three justices appointed by Democratic presidents to dissent in one voice, amplifying the quartet’s power. Less propitiously, she has lately begun to follow the example of Justice Scalia, who in his final years abandoned decorum and loudly trumpeted his political views off the bench. In public appearances, Ginsburg openly discusses precedents she would like to see overturned, champions progressive causes, and has even warned that a Trump presidency would be “a disaster for the country and the Court”—a remark that earned widespread criticism. Ginsburg’s pop-culture status as a pathbreaker and a celebrity is well deserved, yet it seems to encourage this type of freelancing, which diminishes her years of work product that is careful, precise, and, above all, strategic.
It is too soon to know the impact of these controversies on Ginsburg’s legacy. Similarly, we cannot yet know the consequences of her refusal to retire when President Obama could have appointed her successor. These are gambles that may not pay off. More likely, Ginsburg’s enormous contributions to equal rights, both as an advocate and a judge, will outweigh any late-career mistakes. The left’s hopes rest on the shoulders of a frail eighty-five-year-old who weighs less than 100 pounds. She remains a giant.