In Remembrance: The “Notorious” Ruth Bader Ginsburg
Supreme Court Justice and civil rights champion, Ruth Bader Ginsburg died on Friday, September 18 2020 from complications related to pancreatic cancer. A member of the Supreme Court since 1993, and a cultural and feminist icon for young Americans, Ginsburg was a passionate advocate for gender equality and civil liberties. She was known for her tenacity and eloquent dissent, inspiring the endearing nickname “Notorious R.B.G”, which now emblazons an entire collection of merchandise ranging from shirts to posters. Becoming a minor celebrity, Ginsburg is also the subject of several films, books, and documentaries. She has even made appearances on television shows, offering a sneak peek into her rigorous athletic regimen.
Ginsburg attended Cornell University where she met her future husband Martin “Marty” D. Ginsburg. The two later enrolled in Harvard Law School in 1956 before Ginsburg transferred to Columbia Law School, graduating first in her class. While pursuing her law degree, Ginsburg raised her infant daughter, supported Martin’s battle with cancer, and became the first woman to write for both the Harvard Law Review and the Columbia Law Review. Her achievements during this tumultuous time were an early testament to her perseverance and unwavering reserve.
After graduating, Ginsburg was denied several job opportunities due to her gender and status as a wife and mother. Rather than being dissuaded from law, she began teaching courses on civil procedure at Rutgers Law School in 1963. Her years in Sweden at Lund University co-authoring a book on civil procedure heavily influenced her stance on gender equality. She began volunteering for the American Civil Liberties Union, where she later took charge of the Women’s Rights Project.
Ginsburg’s first landmark case was Reed v. Reed in 1971. At the time, Idaho law required the selection of men over women when choosing the administrator of an estate, as was the case between Sally Reed and her ex-husband over their property of their deceased son. Reed’s case made it to the Supreme Court where her lawyer, Allen Derr, was joined by the ACLU and Ginsburg. The Supreme Court initially used a “two-tier” approach to equal protection clause cases: the first, referred to as “strict-scrutiny”, were cases consistently challenging discrimination on the basis of racial classification, and the second tier was a melting pot of other kinds of classifications, including those based on gender, which were seldom taken seriously. Ginsburg argued that these gender-based classifications should be treated as racial ones and held to the highest level of review. Ultimately, it was decided that discrimination based on sex in regards to naming the administrators of an estate was deemed unconstitutional.
Although now remembered strongly by the eloquence and potency of her dissents, Ginsburg was also calculatingly cautious. Perhaps even infuriatingly so, Ginsburg stood as a nonradical figure for several years believing “in the body of the Court, in collegiality of argument, and in moderation of expression”.
This was demonstrated in the landmark Roe v. Wade case in 1973 when Jane Roe (a pseudonym) sought an abortion during her third pregnancy. This was illegal in the state of Texas unless the pregnancy posed a threat to the woman’s health. The case was brought before the Supreme Court, arguing that women have the “right to privacy” over whether or not they wish to seek an abortion. Famously, Ginsburg’s primary decision on Roe v. Wade - deeming any restrictions for abortion to be unconstitutional when applied in every state - provoked temporary outrage amongst previously supportive feminists. However, her apathy towards the case had more to do with its structure: Ginsburg noted that, “Doctrinal limbs too swiftly shaped may prove unstable”, insinuating that the original restrictive ruling would be open to attack with larger room for error and backlash. Additionally, Ginsburg argued that the Roe ruling focused erroneously on the argument that restricted abortions were a privacy violation. As she explained in a lecture at New York University in 1992, she believed the argument should have prioritised the obstruction of gender equality.
Ginsburg, above all else, was an advocate not just for women’s rights, but for a true end to gender discrimination of all kinds. After the ratification of the Equal Rights Amendment in 1972, Ginsburg was optimistic for the future of law looking “toward a legal system in which each person will be judged on individual merit and not on the basis of an unalterable trait of birth”.
Her tenure on the Supreme Court shifted public opinion, unanimously casting Ginsburg as the new “Great Dissenter” (previously a nickname given to Chief Justice John Marshall Harlan) which was a position she begrudgingly accepted. With Presidents Reagan, G. W. Bush, and Trump’s appointment of more modern conservative judges, Justices Scalia, Roberts, Alito, Gorsuch, and Kavanaugh, Ginsburg’s original moderate stance shifted to the liberal side of the spectrum.
However, Ginsburg still fervently believed in a synergetic court that did not shy away from honest disagreement, and defended that most effective and well-written dissent “spells out the differences without jeopardising collegiality or public respect for and confidence in the judiciary”. Although Ginsburg never strayed from this assertion, her dissents accumulated more power, rhetorically, and politically.
In a memorium article for The New Yorker, Jill Lepore speaks of a “Ginsburgian force”. Indeed, Ginsburg was multifaceted in her outreach, accumulating supporters both in the legal profession and otherwise, all the while maintaining her characteristic steely reserve. Her death comes just after the centennial anniversary of the 19th Amendment's ratification which criminalises denying American citizens the right to vote on the basis of sex, appropriately so given her lifelong commitment to protecting women’s rights.
In the face of the looming United States Presidential Election, Ginsburg’s death casts a long shadow on the future of certain laws like Roe v Wade, given a now concerningly conservative majority court. As Ruth Bader Ginsburg laid instate for two days at the United States Capitol, the first woman to receive the honor, mourners remembered her finest dissents, her love of opera, and her perseverance in the face of adversity whilst fighting against discrimination on the basis of sex.