August 20, 2020 Feature

Ruth Bader Ginsburg: A Pioneer and Champion for Women

by Lori Keeton
The “Notorious R.B.G.” has used each chapter of her legal career to seek equality for everyone.

The “Notorious R.B.G.” has used each chapter of her legal career to seek equality for everyone.

Supreme Court of the United States / Wikimedia Commons

Ruth Bader Ginsburg, the second female justice on the U.S. Supreme Court, was previously denied a clerkship with the very same Court upon her graduation from law school because Supreme Court Justice Felix Frankfurter was uncomfortable with the thought of having a female in his chambers.

Years later, Justice Ginsburg shared with her law clerks that this experience caused her to become interested in the role of women in the eyes of the law (Neil A. Lewis, “The Supreme Court: Woman in the News; Rejected as a Clerk, Chosen as a Justice: Ruth Joan Bader Ginsburg,” N.Y. Times, June 15, 1993; https://tinyurl.com/ybe8p3zh).

Her story is filled with ironies such as this one.

Student

Her entry to law school was no exception. In 1956, Ginsburg began her studies at Harvard Law School, where she was one of only nine women in a class of more than 500. Erwin Griswold, then dean of the law school, hosted a dinner for the nine females—and at the end of the meal, asked each of them to go around and justify taking a spot that would otherwise have gone to a man (Philip Galanes, “Ruth Bader Ginsburg and Gloria Steinem on the Unending Fight for Women’s Rights,” N.Y. Times, November 14, 2015; https://tinyurl.com/y76c6ztz).

And justify she did.

Ginsburg went on to be number one in her class while managing not only her course load but also attending her husband’s classes to take notes for him, as he had been diagnosed with cancer while they were both in law school. In her final year, she transferred to Columbia Law School, where she tied with another student for the number one ranking in her class. She also won a coveted spot on the Law Review at both schools.

Advocate

Despite her achievements, Ginsburg struggled to find a job after law school. In her words: “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible” (Lila Thulin, “The True Story of the Case Ruth Bader Ginsburg Argues in ‘On the Basis of Sex,’” Smithsonian Magazine, December 24, 2018; https://tinyurl.com/ycuxc8zh).

Rather than be defeated, Ginsburg used the rejections as fuel and charted her own course of firsts for the advancement of women during this time period. In 1970 she co-founded The Women’s Rights Law Reporter, the first law journal devoted to women’s issues; in 1972 she founded the American Civil Liberty Union’s (ACLU’s) Women’s Rights Project while serving as its general counsel; and in 1974 she wrote Text, Cases, and Materials on Sex-Based Discrimination, the first textbook devoted to sex discrimination law (Academy of Achievement, “Ruth Bader Ginsburg Biography,” last modified January 3, 2019; https://tinyurl.com/ydbvj8we).

Nearly 25 years before she became a Supreme Court justice, Ginsburg began exerting her influence in that courtroom as counsel. In fact, her well-reasoned briefs shaped the legal arguments reflected in the Court’s opinions so much that scholars began referring to her as the Thurgood Marshall of the women’s movement (“Ruth Bader Ginsburg,” History.com, last updated November 9, 2018; https://tinyurl.com/yczf8z8c).

She filed her first brief with the U.S. Supreme Court in 1971 in Reed v. Reed, 404 U.S. 71 (1971), the first major Supreme Court case that struck down a state law on the ground that it discriminated against women in violation of the Equal Protection Clause.

Ginsburg and her co-counsel had to overcome a heavy burden: 100-plus years of precedent that sanctioned the differential treatment of women, a burden that stood in stark contrast to the de minimis legal standard necessary for such treatment to continue. The combination made for a formidable task, but she rose to the occasion.

The case originated after minor child Richard Reed died intestate at the age of 16, and each of his divorced parents filed a petition seeking to be appointed administrator of their son’s estate. The probate court relied on a state statute to choose the father. The law in question required that the man be preferred over the woman if both a mother and a father of a deceased person sought appointment as administrator of the estate.

The Idaho Supreme Court rejected the mother’s contention that the statute’s preference for men over women was “arbitrary and capricious,” finding that the legislature might have reasonably concluded that “men are better qualified to act as [administrators] than are women.”

Given the lack of prior precedent to support women’s right to equal citizenship, Ginsburg focused her arguments more broadly on the challenges women face as a result of the stereotype that men are more suited to be the head of the household while women are suited to be nurturers and mothers, along with the challenges women face in the workforce, including the wage gap, sex-stereotyped occupations, disincentives to work outside the home, and daycare shortages. Her approach worked, and the law was overturned.

Hundreds of laws were changed after Reed v. Reed. Congress went through all the provisions of the U.S. Code and changed almost all that classified overtly on the basis of gender. For example, Congress passed laws banning employment discrimination against pregnant women and prohibited sex discrimination in education programs that received federal support (“Historic U.S. Court Case Inspired Equal Rights for Both Genders,” Voice of America News, November 29, 2011; https://tinyurl.com/yconsoa7).

The brief she authored in Reed operated as its own tool for change. It became known as the grandparent brief because it was the ancestor of many future legal opinions on women’s rights.

Around the same time Ginsburg was working on Reed, she was also litigating Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972), in one of the lower courts. In Moritz, Ginsburg represented a man caring for his ailing mother who was denied a tax break automatically available to female caregivers on account of his gender. While the amount of money at stake was small, the significance of this case was large because, through it, Ginsburg found her primary argument against sex-based discrimination.

Incorporating the fight for male gender equality into the women’s rights movement was part of her litigation strategy. Ginsburg later explained: “What we wanted was to open all doors, for men and for women” (Thulin, supra).

In fact, in the first case that Ginsburg argued before the U.S. Supreme Court, Frontiero v. Richardson, 411 U.S. 677 (1973), Ginsburg and her co-counsel utilized a male plaintiff to attack the standard being applied to gender discrimination and to advocate for a stricter standard.

In that case, Sharron Frontiero’s husband, Joseph, wasn’t eligible for spousal benefits from her work in the uniformed forces because he failed to prove economic dependency on his wife, a condition not required for wives of male members to qualify for the same benefits. While servicemen could claim their wives as dependents and get benefits for them automatically, servicewomen had to prove that their husbands were dependent on them for more than half their support.

A plurality of the Court found the military’s benefit policy unconstitutional because there was no reason why military wives needed benefits more than similarly situated military husbands. They claimed a strict standard of judicial scrutiny for those laws and regulations that classified on the basis of sex was needed due to America’s “long and unfortunate history of sex discrimination.”

While the plurality’s application of strict scrutiny was not adopted in subsequent cases for evaluating gender discrimination claims, the standard was revised in a subsequent case argued by Ginsburg, Craig v. Boren, 429 U.S. 190 (1976).

Craig involved an Oklahoma statute that allowed females 18 and older to purchase beer with an alcohol content of 3.2 percent, but males were barred from doing so until they turned 21. Ginsburg’s Craig brief focused on the argument that the Oklahoma statute reflected outdated stereotypes about the differences between men and women. Ultimately, the Court adopted an intermediate standard of review that required the government to show that any sex classification it defends has a “substantial relationship” to an “important state interest.”

The fight to heighten the standard was an important one because this heightening would make it harder for states to enact laws based on sexual stereotypes (Lewis, supra).

Ginsburg did not limit her advocacy to the courtroom. While Ginsburg was at the ACLU, the Supreme Court, in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), failed to find that pregnancy discrimination counted as sex discrimination. As a result, Ginsburg worked with others to form the Coalition to End Discrimination Against Pregnant Workers. Ginsburg also co-authored a column for the New York Times calling for legislators to amend the law and appeared before Congress to make the change happen. Their efforts resulted in the passage of the Pregnancy Discrimination Act in 1978, an amendment to Title VII that established that pregnancy discrimination in the workplace is unlawful sex discrimination (“Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff,” ACLU.org; https://tinyurl.com/y8rtnwpg).

Judge

Ginsburg continued her fight for gender equality from behind the bench once she was appointed a judge for the U.S. Court of Appeals for the District of Columbia by President Jimmy Carter in 1980 and to the U.S. Supreme Court in 1993 by President Bill Clinton.

In her role as a judge, Ginsburg has become as famous for her dissents as for her majority opinions. In fact, her moniker “Notorious R.B.G.” was acquired after a series of dissents she read from the bench around the Voting Rights Act in 2013. The moniker, created on Tumblr by then–New York University Law student Shana Knizhnik, was a play on the name of the rap star Notorious B.I.G.

One of her most well known opinions since becoming a Supreme Court justice is United States v. Virginia, 518 U.S. 515 (1996). This case was significant not only because it

gave women the right to attend the all-male Virginia Military Institute but also because it tweaked the Craig standard upward, bringing it closer to the race standard. . . . [T]he reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. . . . The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

Wendy Webster Williams, “Ruth Bader Ginsburg’s Equal Protection Clause: 1970–80,” Columbia Journal of Gender and Law, 2013, vol. 25, 41–49; https://tinyurl.com/yaeksf72.

Trailblazer

Ultimately, this is what so much of Ginsburg’s fight has been about in and out of the courtroom: eradicating overbroad generalizations about her own talents and capabilities and about the talents and capabilities of others.

Ginsburg fought this battle as a law student—asked to justify the space she had rightfully earned.

She fought it as a law school graduate as she struggled to find a job—due entirely to her gender.

She fought it as a Supreme Court justice after she was given the coveted black robe—and realized it was designed for ties.

In a 2009 interview for The Washington Post, Justice Ginsburg shared that she and Justice Sandra Day O’Connor jointly decided that they would use jabots to carve out a visual space of their own on the Supreme Court in what would otherwise be a sea of black robes and ties. “You know, the standard robe is made for a man because it has a place for the shirt to show, and the tie,” Ginsburg said. “So Sandra Day O’Connor and I thought it would be appropriate if we included as part of our robe something typical of a woman” (Robert Barnes, “Justices Have Differing Views of Order in the Court,” Washington Post, September 4, 2009).

Ginsburg now has two collars she uses on decision days: her majority opinion collar, which is a lace collar featuring gold trim and charms, and a mirrored bib necklace, which she wears on dissent days.

The collars represent so much more than a fashion statement. Like her arguments through the years, they represent a voice, not just personally, but on behalf of all people whose voices have been drowned out by laws that normalize differential treatment for no legitimate reason; on behalf of all people positively impacted by the arguments she made as a lawyer and the decisions she has made as a judge; on behalf of all those who now get to “take up” seats in law schools and in formerly single-sex schools without having to justify their presence; and on behalf of all those who can sit on juries or become administrators of estates or collect survivor benefits without the burden of being treated differently due to something as irrelevant as their gender.

The Notorious R.B.G. not only occupies a special place on the U.S. Supreme Court as the second woman ever appointed, but also in the hearts and minds of women everywhere for the example she sets and the way she has utilized each chapter of her legal career—as a law student, an attorney, and a judge—to emphasize the importance of equality for everyone.

Thank you, R.B.G.

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Lori Keeton is a litigator and the owner of Law Offices of Lori Keeton PLLC. Her practice focuses on representing municipal employees in civil actions in both state and federal courts. In addition, she is a Certified Mediator. She has been selected for The Best Lawyers in America, Business North Carolina magazine’s “Legal Elite,” and North Carolina Super Lawyers.