Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg (born 1933) is known as the legal architect of the modern women's movement.

In 1960 a dean at Harvard Law School recommended one of his star pupils, Ruth Bader Ginsburg, to serve as a clerk to Supreme Court Justice Felix Frankfurter. Though Frankfurter, like others familiar with Ginsburg, acknowledged her impeccable academic credentials, he confessed that he was not ready to hire a woman. This was neither the first nor the last instance where Ginsburg was defined by her gender rather than her formidable intellect. But the rejection galvanized in Ginsburg a fighting spirit to right the wrongs that women suffered so routinely in American society. Thus, much as lawyer and former Justice Thurgood Marshall had converted the prejudice he faced as a black into the engine fueling his crusade to topple institutional racism, so did Ginsburg act on the lessons she had learned from her life. As the legal architect of the modern women's movement, Ginsburg, more than any other person, exposed a body of discriminatory laws anathema to the spirit and letter of the United States Constitution.

When President Bill Clinton announced the nomination of Ginsburg to fill the seat being vacated by retiring Supreme Court Justice Byron White, the initial reaction focused less on her qualifications and more on whatever the president had botched during the selection process. Clinton was accused of indecisiveness and insensitivity, as he had publicly dangled the names of other candidates—in one instance asking a Boston judge to prepare an acceptance speech—before giving the nod to Ginsburg. But once the political dust settled, Ginsburg's record guided the discussion. With few exceptions, legal observers praised her for both ground breaking advances she had won as a litigator and for the scholarly precision that had marked her 13-year tenure on the bench.

Faced Gender Discrimination

Ruth Joan Bader was born March 15, 1933, to Nathan and Cecelia (Amster) Bader in the Flatbush section of Brooklyn, New York to a comfortable middle-class family. Cecelia Bader was the driving force in her daughter's life, a role model at a time when women had to fight for the privileges and rights that men enjoyed by default. "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons," the New York Times quoted Ginsburg as saying in her acceptance of Clinton's nomination.

After graduating from high school, Ginsburg attended Cornell University where she graduated with high honors in government, and subsequently Harvard Law School, where she distinguished herself academically and served on the Law Review. In the "good old boy" male-dominated world of upper crust law, Ginsburg was told that she and her eight female classmates, out of a class of 500, were taking the places of qualified males. She transferred to Columbia University after two years, when her husband, who would become one of the country's preeminent tax attorneys, took a job in New York. But gender discrimination continued to overshadow her scholastic achievements. Although she graduated at the top of her class, law firms, which normally enter fierce bidding wars for such a star, refused to hire her.

First Tenured Female at Columbia Law

After a clerkship for District Judge Edmund L. Palmieri in New York, Ginsburg joined the faculty of Rutgers University where, in order to elude the Draconian employment policies covering child-bearing women, she concealed her second pregnancy by wearing clothes too big for her. At Rutger's she was only the second female on the school's faculty and among the first 20 women law professors in the country. In 1972, after teaching a course on women and the law at Harvard, which denied her tenure, she was snatched up as the first female faculty member in the law school's history. Although she wasted no time making a name for herself as a legal scholar, it was a litigator—she was counsel to the American Civil Liberties Union (ACLU), where she directed the Women's Rights Project—that her keen, laser sharp mind found its greatest outlet.

The women's movement took off in the early 1970s due to a confluence of factors, including the inspiration provided by the victories recently won by civil rights activists, the increasing number of working women outside the home and encountering employment discrimination, and a growing feminist awareness that the United States, though progressive in some areas, was laden with gender-discriminating institutions. For Ginsburg the central issue was the strategy she and others would use to force the desired changes in society. Just as years earlier the National Association for the Advancement of Colored People (NAACP) had recognized that racism needed to be tackled in the courts and not in the political arena—where, after all, the Jim Crow laws had been born—Ginsburg found her target in those laws by which society's inequalities were both tolerated and promoted. But, on a more basic level, Ginsburg turned to cases in which men and families, in addition to women, were victimized by government policies that discriminated on the basis of gender. A former ACLU colleague was quoted as telling Legal Times, "We were young and very green. She had it all so carefully thought through. She knew exactly what she needed to do."

Argued Women's Rights before Supreme Court

In a 1973 case before the Supreme Court, Ginsburg successfully argued against a federal statute that gave more housing and medical benefits to men within the armed service than to women. The statute allowed a man to automatically claim his wife as a dependent, even if she did not depend on his income, and thus claim the benefits, while the woman in uniform would qualify for those benefits only after showing that her husband received more than half his support from her. Speaking before an all-male court, Ginsburg expertly blew out of the water a government statute that, on the one hand, disadvantaged a man who is a dependent and, on the other, minimized the economic contributions of women. In another case, Ginsburg convinced the court that a provision of the Social Security Act discriminated against men and the families of women because it gave certain benefits to widows and not widowers. Ginsburg also convinced the court to strike down a law ostensibly benefiting women—an Oklahoma statute that women over the age of 18 could purchase alcohol while men needed to be at least 21.

By most accounts, had Ginsburg gone the route of arguing only those cases in which women were the victims of discriminatory laws, she would not have effectively revealed the absurdity and unconstitutionality of all laws that treat men and women differently. Indeed, the crux of her legal philosophy—that the law cannot proscribe rights to one group and not to another—would have surely collapsed if she sought to protect women more than men. She had little patience for the claim of some feminists that women think differently than men and are inherently better suited for certain activities, be it child-rearing or government service.

Having won five of the six cases she argued before the Supreme Court and showing, more than any other lawyer, that the equal protection provision of the Fourteenth Amendment applies not just on the basis of race but on gender, Ginsburg, in the waning days of President Jimmy Carter, was named a judge on the United States Court of appeals for the District of Columbia. Though Ginsburg has been hailed as the Thurgood Marshall of the women's movement, she unlike Marshall (who saw his judgeship as an opportunity to continue the activism and advocacy he practiced as a lawyer), brought a cautious, measured disposition to the court. Her belief, shared by many conservatives, is that, with few exceptions, the courts should interpret laws and leave policy-making in the electoral, political domain. Ginsburg further delighted rightists with her vote to dismiss an appeal by a homosexual sailor who was contesting his discharge from the Navy, and with her statement that affirmative action policies can backfire by demeaning the achievements of blacks. In 1987 cases that produced a division on the court, Ginsburg voted 85 percent of the time with Judge Robert Bork, an arch conservative whose nomination to the Supreme Court would be torpedoed by Democrats, and 38 percent of the time with Judge Patricia Wald, one of the court's staunchest liberals. Still, Ginsburg curried favor with liberals with her votes supporting freedom of speech and broadcasting access to the courts.

Supreme Court Justice

With the retirement of Justice Byron White, President Clinton reportedly sought out a replacement with the intellect to counter the court's chief conservative, Antonin Scalia, and the political skills to pull toward the left members of the court's pivotal centrist block. The first choice was New York Governor Mario Cuomo, who declined the nomination. When the name of Interior Secretary Bruce Babbit was floated, environmental groups successfully lobbied to keep him in his present position. The frontrunner in the final days was Boston Judge Stephen Breyer, who according to reports, had been told to draft an acceptance speech. But Clinton decided not to proceed with Breyer, evidently because the president was less impressed with the judge after the two met in the White House. Following that meeting, Clinton asked to see the results of the preliminary background check on Ginsburg, who had been on the short list for nomination.

While some commentators criticized Clinton for zig-zagging and for turning his back on Breyer, Ginsburg received the accolades of the legal community. Court observers praised her commitment to the details of the law, her incisive questioning of lawyers arguing before her, and her talent for winning over colleagues with dispassionate and well-reasoned arguments. Clinton was quoted in the New York Times as saying, "I believe that in the years ahead she will be able to be a force for consensus-building on the Supreme Court, just as she has been on the court of appeals, so that our judges can become an instrument of our common unity in their expression to their fidelity to the Constitution." Conservatives, grateful that a liberal ideologue had not been nominated, rallied behind Ginsburg, as did liberals, believing that they had found a foil to Scalia, even though the two jurists are good friends. In a widely reported joke, when Scalia was asked with whom he would want to be stranded on a desert island, Mario Cuomo or Harvard law professor Laurence Tribe, his answer was Ruth Bader Ginsburg.

Ironically, the loudest concerns about the nomination of this champion of equality came from some women's and abortion rights groups. Although pro-choice, Ginsburg, in articles and speeches, has questioned the reasoning underlying "Roe vs. Wade," the 1973 Supreme Court decisions protecting abortions under a right to privacy not explicitly mentioned in the Constitution. According to Ginsburg and a growing number of legal scholars, abortion rights are most convincingly grounded in the equal protection provisions of the Constitution rather than in a nebulous right to privacy. In keeping with her legal philosophy of judicial restraint—that is, minimizing the political activism of the court—Ginsburg has argued that state legislatures should have more flexibility than "Roe" provides, and that, at the time of the decision, the political atmosphere was favoring a liberalization of strict abortion laws, a claim disputed by some abortion rights advocates.

Confirmation to the Supreme Court often involves more a political brawl than a deliberative review of a nominee's record, but the Senate Judiciary Committee hearings on Ginsburg were remarkably free of rancor and partisanship. Setting the tone for the friendly hearings, Committee Chairman Joseph Biden, echoing statements of his Democratic and Republican colleagues, said according to the Boston Globe, that Ginsburg had "already helped to change the meaning of equality in our nation."

On August 3, 1993, Ginsburg was confirmed by the Senate in a vote of 96 to 3, becoming the 107th Supreme Court Justice, its second female jurist, and the first justice to be named by a Democratic president since Lyndon B. Johnson. She was then sworn in during August 10 ceremonies held at the White House and the Supreme Court itself. The three senators to oppose her confirmation were Republicans Jesse Helms of North Carolina, Don Nickles of Oklahoma, and Bob Smith of New Hampshire. President Clinton said in a statement quoted by the Detroit Free Press, "I am confident that she will be an outstanding addition to the court and will serve with distinction for many years."

Her First Term

According to the Tribune News Service, "In her rookie year on the Supreme Court, Ruth Bader Ginsburg proved to be anything but a novice…. {Ginsburg} proved assertive from the outset." Yet some Court observers, comparing her to former Justices Thurgood Marshall and William J. Brennan Jr., felt that she had not championed the underdogs as the former justices had and that her prose lacked compassion or combativeness.

In his nomination of Ginsburg, President Clinton felt that she would be a good counter balance for the conservative Antonin Scalia and an equalizing replacement for the conservative Justice Byron White. Since joining the Supreme Court, Justice Ginsburg, it is felt, has moved the court leftward, but not as much as the liberals had hoped. In her first term as a junior justice, according to Aaron Epstein of Knight-Ridder Newspapers, "Ginsburg strongly backed gender equality, solidly supported separation of church and state, opposed an expansion of property rights, argued to preserve protection of workers and opposed police, and prosecutors more often than most of her colleagues."

Women in the Judiciary

In a rare public appearance together, Justices Ruth Bader Ginsburg and Sandra Day O'Connor attended a program sponsored by the University of Pennsylvania Law School and the University's Annenberg Public Policy Center entitled Women and the Bench celebrating women in the judiciary. During the introduction of Ginsburg and O'Connor, Colin Diver, dean of the law school said, "every single woman who has ever served on the U.S. Supreme Court" was in attendance. This venue allowed some distinguished alumnae along with the justices and other women in the judiciary to recount their experiences and careers for their primarily law student oriented audience. While being appointed to the Supreme Court by President Bill Clinton, Justice Ginsburg attributed former President Jimmy Carter with changing the judicial landscape for women forever. She said, "He appointed women in numbers such as there would be no going back."

According to U.S. District Court Judge Phyllis A. Kravitch, "When Carter took office in 1977 there were only two women presiding over federal appeals courts and eight ruling in federal district courts. Now, besides the two women on the Supreme Court, 25 women judges sit in U.S. appeals courts and 100 in district courts…. And the states have all followed suit." Sandra Day O'Connor added, "About eight percent of the nation's judges are women."

While being applauded for stepping into her position as Supreme Court Justice without hesitation, some observers feel that she hasn't yet found her voice. Christian Kellett, law professor at Dickinson College in Carlisle, Pennsylvania feels, "She hasn't struck out on her own yet, but she is far more confident of her opinions than other junior justices have been. I think her influence has brought justices in the conservative middle over to the liberal side in some instances." Since taking office Justice Ruth Bader Ginsburg has written 35 significant opinions, two important concurring opinions, and three selected dissenting opinions.

Further Reading on Ruth Bader Ginsburg

Italia, Bob, and Paul Deegan, Ruth Bader Ginsburg, (1994).

Ayer, Eleanor H., Ruth Bader Ginsburg: Fire and Steel on the Supreme Court (1994, 1995).

Bredeson, Carmen, Ruth Bader Ginsburg: Supreme Court Justice (1995).

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