Lawyer and Supreme Court Judge; legal, feminist and cultural icon.
We awoke on 18th September to the painful news that Supreme Court Justice Ruth Bader Ginsburg had passed away at aged 87. Her passing is a great loss for all of us in the legal community, but her legacy and reach goes far beyond this – a legal legend yes, but also a cultural and feminist icon. As the Gender Ambassador at Chambers and Partners, I pay tribute to her relentless commitment to gender equality.
Who was Ruth Bader Ginsburg and how did she become the Notorious RBG?
Joan Ruth Bader
Born Joan Ruth Bader in Brooklyn, New York in 1933, Bader earned her bachelor’s degree from Cornell University and, following her marriage to Martin Ginsburg and the birth of her first child, she attended Harvard Law School as one of only nine women in a class of more than 500. The Dean asked her and her female classmates, “why are you at Harvard Law School, taking the place of a man?” – marking the beginning of years of gender discrimination that she would face in her legal career.
When her husband was diagnosed with testicular cancer, Ginsburg balanced a toddler and caring for a sick husband with her university commitments, including contributing to the prestigious Harvard Law Review. After her husband recovered and got a job in New York, Ginsburg transferred to Columbia Law School, where she graduated top of her class in 1959.
Despite her astonishing academic achievements, she had difficulty finding employment within law firms or the justice system. It wasn’t until her former law professor threatened to never recommend another Columbia graduate to clerk for Judge Palmieri if he refused Ginsburg the opportunity to clerk for him that she got her first legal job. Her professor agreed to find him a replacement clerk if he found she wasn’t up to the task. Ginsburg clerked for Judge Palmieri for two years, despite clerks typically serving one.
Following this, she was a research associate at Columbia Law School and then became a professor at Rutgers Law School in 1963, where once again she was discriminated against as a woman and a wife when she was told she would be paid less than her male colleagues because her husband already had a well-paid job. She received tenure in 1969 and was then a tenured professor back at Columbia Law. In 1970 Ginsburg founded the Women’s Rights Law Reporter, a law journal focused solely on women’s rights, the first of its kind in the United states.
Ruth Bader Ginsburg: Associate Justice of the Supreme Court of the United States
Her journey from academia to litigation and advocacy began when she co-founded the Women’s Rights Project at the ACLU (American Civil Liberties Union) in 1972. By 1974 the project had participated in over 300 gender discrimination cases. A strategic mastermind, Ruth Bader Ginsburg focused on overturning discriminatory legal statutes and was sure to include male, as well as female, plaintiffs, to demonstrate that gender discrimination applied to and harmed both men and women.
She also sought to challenge statutes which appeared superficially beneficial to women, but in reality reinforced the idea that women should be dependent on men. By the time she was nominated to the United States Court of Appeals for the District of Columbia Circuit by President Jimmy Carter in 1980, Ginsburg had argued a number of landmark cases before the Supreme Court. The Court ruled in her favour that
‘benefits given by the United States military to the family of service members cannot be given out differently because of sex’
‘the gender-based distinction held in the 1935 Social Security Act, which permitted widows but not widowers to collect special benefits while caring for minors, violated their right to equal protection under the Due Process Clause of the Fifth Amendment to the United States Constitution’,
among other historic rulings targeting discriminatory statutes.
Ginsburg served on the Court of the Appeals until she was called to hold the open position on the Supreme Court. In her time at the Southern District, she garnered a reputation as a centrist liberal who worked well with her ideologically conservative colleagues.
The moderate RBG? Her image in the early 90s was quite far removed from the liberal firebrand reputation that she holds today.
The Notorious RBG
Nominated and sworn in as an Associate Justice of the Supreme Court in 1993 by President Bill Clinton, Ruth Bader Ginsburg was only the second woman in history to hold this position. She continued to enact change in a similar style to her years at the ACLU, taking a slow, strategic, calculated approach. She believed that social change should come from Congress and other legislature, not the courts, and used her position on the bench to continue to attack specific areas of discrimination in the law and violations of women’s rights. American legal scholar Cass Sunstein characterised Ginsburg as a “rational minimalist” who proceeded with caution, strategically building on precedent to argue cases, rather than bending the Constitution to her will.
As she grew in seniority on the bench in the early and mid- 2000s, Ginsburg became known for her clear, and at times, scathing dissents. In Bush v. Gore, 2000 she famously wrote in her opinion “I dissent”, turning away from the court’s tradition of dissenting judges stating that they “respectfully dissent.” One of her most famous dissents, Ledbetter v. Goodyear Tire & Rubber Company, 2007 came when Lilly Ledbetter sued her employer for gender discrimination after she discovered she had been paid less than her male counterparts. Goodyear argued that complaints under Title VII of the Civil Rights Act of 1964 were required to be filed within 180 days of the violation, so Ledbetter could only call into question 180 days, rather than two decades worth, of unequal pay.
The Supreme Court ruled in Goodyear’s favour. Ginsburg dissented, pointing out that Ledbetter could not have filed her complaint sooner, as she did not know she was being discriminated against. She went as far as to translate the technical legal document into laymen’s terms, reading her dissent publicly from the bench, making sure to highlight the realities of the gender pay gap. Ginsburg went on to press Congress to amend Title VII; the Lilly Ledbetter Fair Pay Act was the first bill signed by President Barack Obama when he took office in 2009.
When discussing her dissents, Ginsburg held great hope for the future: “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
In her time on the bench, she also oversaw many wins. Among them, the 1996 case United States v. Virginia. Ginsburg and the court would overturn Virginia Military Institute’s all-male admission policy. Obergefell v. Hodges, 2015 granted same-sex couples the right to marry in all 50 states and Whole Woman’s Health v. Hellerstedt, 2016 struck down Texas’s Omnibus Abortion Bill, which would have imposed strict restrictions and requirements on abortion providers. Ginsburg wrote “when a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners…at great risk to their health and safety.”
Her wins and fiery dissents in the pursuit of equality cemented her place in popular culture. Despite her left-leaning tendencies, Ginsburg and conservative Justice Antonin Scalia were known to be close friends and their relationship and legal disagreements were the subject of the 2015 opera Scalia/Ginsburg. In 2013 a law student coined the term the Notorious RBG, a play on rapper Biggie Smalls’ nickname Notorious B.I.G., in honour of her dissent in the landmark case Shelby County v Holder. She would go on to be regularly impersonated on Saturday Night Live, a popular Halloween costume, the subject of the 2018 film On the Basis of Sex and of too many GIFs to mention.
Upon her passing, Chief Justice John Roberts lamented: “Our nation has lost a Justice of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.” It has been announced that Ginsburg will be the first woman in history to lie in state in the US Capitol when her casket is placed there on Friday 25 September. And of course, we must reflect that her death could alter the course of history forever. The US Supreme Court is the highest court in the largest economy in the world and has the final say on questions of US federal law, ruling on crucial issues including reproductive, immigrant and voting rights, as well as criminal justice, healthcare and tax reforms and the powers of the executive. The next nominee could potentially shape the political, social and cultural landscape for a generation.
On Friday 18, the liberal movement in the United States suffered a huge loss. That this is such a blow serves as a stark reminder of how far there remains to go for gender and social equality. From the outpourings of grief and gratitude that we have seen across social media and news outlets, her legacy will see others take up her mantle. No Justice or legal practitioner, perhaps only Atticus Finch, has ever achieved the global icon status that Ginsburg enjoyed and will continue to enjoy after her death. American actress Kerry Washington tweeted “Her rest is earned. It is our turn to fight.”