Ruth Bader Ginsburg: The methodical feminist

July 31, 2013

Ruth Bader Ginsburg 2(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

The judicial philosophy of the previous justice profiled in this series, Stephen Breyer, was neatly laid out for us by the justice himself, through several lectures and two books on the subject.

Unlike Justice Breyer, the subject of this week’s profile, Justice Ruth Bader Ginsburg, has not written any books on, nor waxed at length about, her judicial views.

They are, fortunately, still easily gleaned; instead of looking to books written by Ginsburg about her views, however, we can learn all we need know from her life and her career as an attorney and as a jurist.

Ruth Joan Bader was born on March 15, 1933, in Brooklyn, New York City, into a Jewish family.  Ruth’s mother, Celia Bader, impressed on her daughter the value of independence and a good education – values that would persist with the future justice long into her life.

Unfortunately, Celia Bader, who had struggled with cancer while Ruth was in high school, passed away the day before her daughter’s graduation ceremony.  Ruth did not attend a “Forum of Honor” to which she was invited for having graduated sixth in her class.

Although her mother left her the then-large sum of $8,000 (over $70,000 in 2013 dollars) to use for her college tuition, Ruth gave most of the money to her father since she had earned enough in scholarships to support her own way through school.

Ginsburg attended Cornell University in 1950, where she met her future husband, Martin Ginsburg.  Martin enrolled at Harvard Law School upon graduating, while Ruth had yet to complete her senior year at Cornell.

Halfway through the year, however, Martin received his draft notice.  Before moving to Fort Sill, in Lawton, Oklahoma, where Martin was stationed to serve in the Army, the two married.  Ginsburg graduated first in her class at Cornell.

After Martin was discharged two years later, the two returned to Harvard, where Ruth joined Martin at Harvard Law – as one of only nine women in her class of 500.  Harvard administration didn’t make it any easier for women, either: then-Dean Erwin Griswold asked the women of the class what it felt like to occupy places that could have gone to deserving men.

According to Ginsburg, when she attended Harvard, “there was no space in the dormitories for women; women were not admitted to faculty club dining tables; one could invite one’s father, but not one’s wife or mother, to the Law Review banquet.”  Regardless of these barriers, Ginsburg received high grades and secured a place on the law review.

Sadly, even more hardship struck Ginsburg, whose husband developed testicular cancer and required extensive treatment with radiation and surgery while they were both still attending law school.  In addition to caring for their young daughter, Ginsburg helped her husband by attending class for him and typing his papers as he dictated every word – all while maintaining her own studies.

Martin thankfully recovered, and graduated from Harvard Law, accepting a position with a New York law firm.

Ginsburg followed her husband to New York, even though she had a year of law school left: she transferred to Columbia Law to complete her final year.  Ginsburg graduated from Columbia at the top of her class in 1959.

In 1960, despite a stellar recommendation from Harvard Law School Dean Albert Sachs, Ginsburg was rejected by Justice Felix Frankfurter of the Supreme Court to be one of his law clerks.  Justice Frankfurter said that while Ginsburg was impressive, he just wasn’t ready to hire a woman.  Instead, Ginsburg clerked for Judge Edmund L. Palmieri of the U.S. District Court for the Southern District of New York.

After some time spent in academia, Ginsburg began her work reshaping the legal landscape of the Constitution’s Equal Protection Clause.  And she accomplished this not as a judge, but as an attorney.

In the late 1960s, after doing legal work on behalf of New Jersey schoolteachers threatened with the loss of their jobs if they became pregnant, Ginsburg caught the attention of Melvin Wulf, the national ACLU legal director (Wulf and Ginsburg were actually acquaintances from years earlier, when they both attended the same summer camp).

Wulf brought Ginsburg in on Ginsburg’s first big case: Reed v. Reed

The client was Sally Reed, a divorced Idaho woman and the mother of a son who had died. Reed applied to be executor of her son’s estate, as did her ex-husband.  However, Idaho law directed that when a man and a woman were equally situated to be executor, the man is to be selected.

Reuters Ruth Bader GinsburgAfter losing the case at the state supreme court, Wulf asked Sally Reed’s lawyer to allow the ACLU to join his appeal to the U.S. Supreme Court, to which Reed’s attorney agreed.  Wulf included Ginsburg on his team.

At this point, constitutional jurisprudence only required “rational basis” review for laws that discriminated on the basis of sex.  Ginsburg hoped to change this, but with incremental steps that didn’t force the nation into large social change.

Ginsburg wrote Reed’s brief, in which Ginsburg clearly argues for heightened scrutiny in court review of sexually discriminating laws.

The good news for Ginsburg was that the Supreme Court decided Reed unanimously in her client’s favor – ruling for the first time that the Fourteenth Amendment’s Equal Protection Clause prohibited discrimination based on sex.

The bad news, though, was that the Court declined to apply strict scrutiny or any other form of scrutiny above rational basis for sex discrimination cases.

Nevertheless, this case was only the beginning of Ginsburg’s project to raise the judicial standard of review for sexually-discriminatory laws (Ginsburg co-founded the Women’s Rights Project of the ACLU to this end).

The next case Ginsburg argued before the Supreme Court, 1973’s Frontiero v. Richardson, was a significant victory for her objective. 

Frontiero struck down military regulations that required a female servicemember to prove that her husband was financially dependent on her for him to qualify for housing allowances and medical benefits, whereas wives of servicemen automatically qualified for the benefits.

Ginsburg did not, however, regard Frontiero as the victory that it may otherwise appear to be.  This is because only four of the eight justices in the majority held that strict scrutiny should be the appropriate standard for sex discrimination cases.

To Ginsburg, this meant that strict scrutiny had been rejected by a majority of the Court, and that the opportunity to adopt this standard had been lost.

As such, Ginsburg changed her strategy, seeking to ask, instead, for an intermediate standard of scrutiny.

Ginsburg methodically got the Court to this point through 1974’s Kahn v. Shevin, and 1975’s Edwards v. Healy and Weinberger v. Wiesenfeld, finally achieving success in 1976’s Craig v. Boren.

Although Ginsburg didn’t actually handle the case herself, she guided the plaintiff’s attorney on his arguments, correctly counseling him against asking for strict scrutiny, telling him, “we don’t have 5 votes for [strict scrutiny], so play that down.”

Ginsburg herself did file an amicus brief in the case.

As you constitutional law scholars out there are aware, Craig was the ruling that established “intermediate scrutiny” for use in sex discrimination cases – forever changing how the Constitution views sexual discrimination that is written into law.

Ginsburg also had two other major gender equality victories as an attorney before the Supreme Court: 1977’s Califano v. Goldfarb and 1979’s Duren v. Missouri.

Amazingly, all of this is on Ginsburg’s record before she even became a judge; but being appointed to such a post didn’t take long with her impressive list of accomplishments.

President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit on April 14, 1980, where she served for 13 years, before being nominated to the Supreme Court by President Bill Clinton on June 14, 1993.

The Senate confirmed Ginsburg on August 3, 1993, making her the first Jewish female justice to sit on the Court.

While Ginsburg’s fight for gender equality has certainly manifested itself regularly during her tenure with the Court, her fight for civil rights is certainly not limited to gender.

She has consistently been one of the most liberal members of the Court, and is likely the most liberal member of the current Court.  Rarely does she fail to stake out the most liberal position in a case.

I’ve listed some of her notable decisions in the Today in Legal History post on her Senate confirmation that underscores this point, but you don’t have to take my word for it: Justice Ginsburg will more consistently vote for the liberal position than any other justice – even if this means that she is the sole dissenter.

But, if her recent comments about Roe v. Wade are any indication (she stated that the broad ruling shocked a certain social segment of the populace and gave rise to the modern pro-life movement), Ginsburg still believes in incremental social change that is educational for and inclusive of the rest of the country.

This sentiment seems to ensure that, despite her liberal tendencies, she is unlikely to be an “activist judge” who takes the country into a direction thaact it is unwilling to go.