Appellate Advocacy

Ruth Bader Ginsburg’s Appellate Legacy

Jessica A. R. Hamilton
Image of the United States Supreme Court on a sunny day.

Image of the United States Supreme Court on a sunny day.

The United States Supreme Court

My toddler’s favorite book is a lift-the-flap book featuring various “baby feminists.” Every morning she gleefully lifts the flap featuring Ruth Bader Ginsburg to reveal that she was, in fact, a baby before sitting as a Justice of the United States Supreme Court. What is often overlooked in between these two events, however, is Justice Ginsburg’s role in a series of landmark opinions before the Supreme Court as an appellate advocate and champion of gender equity.

Justice Ginsburg founded the Women’s Rights Project of the American Civil Liberties Union (ACLU) in 1972, in large part to use litigation as a tool to ensure that women and their families could enjoy the benefits of full equality and participation in every sphere of society.[1] As general counsel for the Women’s Rights Project, Justice Ginsburg took part in thirty-four cases before the Supreme Court, and argued six of those cases over a five-year period from 1973 to 1978, focusing heavily on issues of sex discrimination and gender equality.

Justice Ginsburg’s first argument before the Supreme Court was on behalf of the ACLU as amicus curiae in Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973). Ms. Frontiero, a lieutenant in the United States Air Force, and her husband had brought suit against the Secretary of Defense to challenge the federal statutes governing housing, medical, and dental benefits for “dependents.” Back then, the spouses of male service members were automatically considered dependents for purposes of obtaining the benefits, while spouses of female service members were not dependents unless they affirmatively established that were reliant on their spouse for over one-half of their support. Justice Ginsburg, in her brief, stated that this case “poses a constitutional issue of great significance to the achievement of full equality under the law between the sexes.” She argued vehemently for the statutes to be declared unconstitutional and the benefits made available to male and female service members on identical terms.[2] At oral argument, Justice Ginsburg further advanced this position, arguing that the court should consider sex as “suspect criterion” under the Equal Protection Clause of the Fourteenth Amendment, noting that “[s]ex like race is a visible, immutable characteristic bearing no necessary relationship to ability [and it] has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or to contribute to society.”[3] While the Court did not address the Equal Protection issue, it did broadly agree with Justice Ginsburg’s arguments, holding that classifications based upon sex were inherently suspect and must be subjected to strict judicial scrutiny. The Court further found that the statutes in question violated the Due Process Clause of the Fifth Amendment insofar as they require a female servicemember to prove the dependency of her husband. Id. at 690–91.

Justice Ginsburg next appeared before the Supreme Court in Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. 2d 189 (1974), involving a dispute over a Florida statute that provided property tax exemptions to widows, but not to widowers. Justice Ginsburg appeared on behalf of the widower appellant, arguing that the gender-based distinction violated the Equal Protection Clause of the Fourteenth Amendment in two ways: (1) by discriminating against men who had lost their wives; and (2) by discounting the overall financial and familial contributions made by the deceased wife since no exemption was provided to her surviving husband upon her death.[4] The Court disagreed with this argument, noting that “[w]hile the widower can usually continue in the occupation which preceded his spouse's death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.” Id. at 354. Accordingly, the Court concluded that “Florida's differing treatment of widows and widowers ‘rest(s) upon some ground of difference having a fair and substantial relation to the object of the legislation.’” Id. at 355.

Undeterred by her loss in Kahn, Justice Ginsburg was before the Court twice the following year to argue Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975) and Edwards v. Healy, 421 U.S. 772, 95 S. Ct. 2410, 44 L. Ed. 2d 571 (1975). Edwards, which challenged Louisiana’s laws exempting all women from jury service unless they filed a written declaration of their desire to serve, was ultimately remanded to the District Court to consider whether the issue had been mooted by changes in state law. Weinberger involved a challenge to a portion of the Social Security Act (“SSA”) which provided that benefits based on the earnings of a deceased husband/father were payable to both his widow and surviving minor children, while benefits based on the earnings of a deceased wife/mother were payable only to the surviving minor children and not the widower. Mr. Wiesenfeld, a widower who was denied his wife’s SSA benefits, brought the action on behalf of himself and similarly-situated widowers on the basis that this disparate treatment violated the Due Process Clause of the Fifth Amendment. 420 U.S. at 637-42. On appeal, Justice Ginsburg argued that the case ultimately concerned the entitlement of a female wage earner and her family “to Social Insurance of the same quality as that accorded to the family of a male wage earner,” and noted that it was laws like these that “tell a woman how [her] employment is less valuable to and supportive of the family than the employment of a male worker.”[5] The Court agreed, finding the gender-based distinction contained in the Act’s provision to be “indistinguishable from that invalidated in Frontiero.” Id. at 642–43. In a victory for Justice Ginsburg and the work of the Women’s Rights Project, the Court went on to note that while “the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support . . . such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.” Id. at 645.

Building from the foundation of her successes in Frontiero and Weinberger, Justice Ginsburg appeared before the Supreme Court on behalf of a widower in Califano v. Goldfarb, 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977), again challenging discriminatory aspects of the SSA. Under the Act, survivors' benefits based on the earnings of a deceased husband were payable to his widow regardless of dependency, while these same benefits based on the earnings of a deceased wife covered by the Act are only payable to a widower if he was receiving at least one-half of his support from his deceased wife. Id. at 201. During oral argument, Justice Ginsburg pointed to both Frontiero and Weinberger as support for the proposition “that this separate and unequal payout system discriminates invidiously against the wage earning woman and her spouse.” In replying to Justice Potter Stewart’s question of whether it would make any constitutional difference if the statute was reversed, with widow appearing in the place of widower, Justice Ginsburg responded: “[E]very gender discrimination is a two-edged sword. It works both ways.” She noted, however, “the discriminatory line almost inevitably hurts women.”[6] The Court agreed with Justice Ginsburg’s position, finding that the reasoning of Frontiero and Weinberger “condemns the gender-based distinction made by [the relevant provision of the Act]” and that the distinction “operates to deprive women of protection for their families which men receive as a result of their employment.” Id. at 206 (internal quotation marks omitted). The Court further concluded that the SSA’s gender-based differentiation is “forbidden by the Constitution, at least when supported by no more substantial justification than archaic and overbroad generalizations . . . or old notions . . . such as assumptions as to dependency . . . that are more consistent with the role-typing society has long imposed . . . than with contemporary reality.” Id. at 207 (citations omitted; internal quotation marks omitted).

Justice Ginsburg’s final appearance before the Supreme Court was on behalf of the appellee in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), which, similar to Edwards, involved a challenge to a Missouri law granting women an automatic exemption from jury service upon request. The case was brought on behalf of a prisoner who claimed that his right to trial by a jury chosen from a fair cross section of his community was denied as a result of this law, which resulted in an all-male jury in his case. Although 54% of the population of the county was female, only 15.5% of those on the weekly venires were women. Id. at 365. At oral argument, Justice Ginsburg focused on the fact the law perpetuated by “a certain way of thinking about women,” namely that “women traditionally were deemed lesser citizens” and that the notion underlying the exception was that “women are not really needed, not really wanted for participation in the democratic processes of Government.”[7] The Court ultimately decided to apply a tripartite test to determine the existence of a prima facie violation of the fair-cross-section requirement: (1) whether the group alleged to be excluded is a “distinctive” group in the community; (2) whether the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and if so, (3) whether this underrepresentation is due to the systematic exclusion of the group in the jury-selection process. Id. at 364. This approach embraced the Curt’s earlier decision in Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), which reasoned that women “are sufficiently numerous and distinct from men” so that “if they are systematically eliminated from jury panels, the Sixth Amendment's fair-cross-section requirement cannot be satisfied.” Duren, 439 U.S. at 364.

As can be seen, throughout her stellar and effective appellate advocacy, Justice Ginsburg elevated the legal conversation at the U.S. Supreme Court level, forever altering the civil rights discourse to include considerations of women’s rights, sex discrimination, and gender equality. It was this legacy that she built upon when she took the bench, and ultimately as a Justice of the highest court in the land. She stands as a constant reminder of the power that an appellate argument can have on both the case at hand and those that come long after.



[1] ACLU FAQS: THE ACLU WOMEN'S RIGHTS PROJECT AND WOMEN'S HISTORY MONTH, ACLU, https://www.aclu.org/other/faqs-aclu-womens-rights-project-and-womens-history-month (last visited Oct. 25, 2020).

[2] Br. of American Civil Liberties Union, Amicus Curiae, N.Y.U. Review of Law & Social Change, https://socialchangenyu.com/wp-content/uploads/2019/06/1971-Frontiero-and-Frontiero-v.-Laird-ACLU-Amicus.pdf (last visited October 25, 2020)

[3] Frontiero, 411 U.S. 677, Oral Argument – January 17, 1974, Oyez, https://www.oyez.org/cases/1972/71-1694 (last visited Oct 25, 2020).

[4] Kahn, 416 U.S. 351, Oral Argument – February 25, 1974, Oyez, https://www.oyez.org/cases/1973/73-78 (last visited Oct 26, 2020).

[5] Weinberger, 420 U.S. 636, Oral Argument – January 10, 1975, Oyez, https://www.oyez.org/cases/1974/73-1892 (last visited Oct 26, 2020).

[6] Califano, 430 U.S. 199, Oral Argument – October 5, 1976, Oyez, https://www.oyez.org/cases/1976/75-699 (last visited Oct 28, 2020).

[7] Duren, 439 U.S. 357, Oral Argument – November 1, 1978, Oyez, https://www.oyez.org/cases/1978/77-6067 (last visited Oct 26, 2020).

 

Jessica A. R. Hamilton

Associate

Jessica A. R. Hamilton is a member of Robinson + Cole’s Insurance + Reinsurance Group, and focuses her practice on insurance coverage and extra-contractual litigation, as well as high-exposure liability claims and other complex commercial litigation.