Photo credit: Jess Pomponio (Shutterstock.com)
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Today, flowers are strewn on the steps of the Supreme Court, where “Equal Justice Under Law” is carved in stone. More than a thousand people gathered there tonight to mourn the passing of Justice Ruth Bader Ginsburg, who died last night from cancer at age 87.
Justice Ginsburg was born in Brooklyn, New York, on March 15, 1933, in an era when laws, as well as the customs they protected, treated men and women differently. Ginsburg would grow up to challenge the statutes and informal practices that barred women from jobs and denied them rights, eventually setting the country on a path to extend equal justice under law to women and LGBTQ Americans.
Joan Ruth Bader, who went by her middle name, was the second daughter in a middle-class family. She went to New York City public schools, where she excelled, and won a full scholarship to Cornell. There, she met Martin Ginsburg, and they married after she graduated. “What made Marty so overwhelmingly attractive to me was that he cared that I had a brain,” she later explained. Relocating to Ft. Sill, Oklahoma, for her husband’s army service, Ginsburg scored high on the civil service exam but could find work only as a typist. When she got pregnant with their daughter Jane, she lost her job.
Two years later, the couple moved back east where Marty had been admitted to Harvard Law School. Ginsburg was admitted the next year, one of nine women in her class of more than 500 students; a dean asked her why she was “taking the place of a man.” She excelled, becoming the first woman on the prestigious Harvard Law Review. When her husband underwent surgery and radiation treatments for testicular cancer, she cared for him and their daughter, while managing her studies and helping Marty with his. She rarely slept.
After he graduated, Martin Ginsburg got a job in New York, and Ruth transferred to Columbia Law School, where she graduated at the top of her class. But in 1959, law firms weren’t hiring women, and judges didn’t want women—especially mothers, who might be distracted by their “familial obligations”—as clerks. Finally, her mentor, law professor Gerald Gunther, got her a clerkship by threatening Judge Edmund Palmieri that if he did not take her, Gunther would never send him a clerk again.
After her clerkship and two years in Sweden, where laws about gender equality were far more advanced than in America, Ginsburg became one of America’s first female law professors. She worked first at Rutgers University — where she hid her pregnancy with her second child, James, until her contract was renewed—and then at Columbia Law School, where she was the first woman the school tenured.
At Rutgers, she began her bid to level the legal playing field between men and women, extending equal protection under the law to include gender. Knowing she had to appeal to male judges, she often picked male plaintiffs to establish the principle of gender equality. In 1971, she wrote the brief for Sally Reed in Reed vs. Reed, where the Supreme Court decided that an Idaho law specifying that “males must be preferred to females” in appointing administrators of estates was unconstitutional. Chief Justice Warren Burger, who had been appointed by Richard Nixon, wrote: “To give a mandatory preference to members of either sex over members of the other… is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment” to the Constitution.
Ginsgurg’s most savvy feminist strategy was to argue that men had the right to gender equity too. In 1972, Ginsburg won the case of Moritz v. Commissioner. She argued that a law preventing a bachelor, Charles Moritz, from claiming a tax deduction for the care of his aged mother because the deduction could be claimed only by women, or by widowed or divorced men, was discriminatory. The United States Court of Appeals for the Tenth Circuit agreed, citing Reed v. Reed when it decided that discrimination on the basis of sex violated the Equal Protection Clause of the Fourteenth Amendment.
In that year, Ginsburg founded the Women’s Rights Project at the American Civil Liberties Union (ACLU). Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court. She won five. The first time she appeared before the court, she quoted nineteenth-century abolitionist and women’s rights activist Sarah Grimke: “I ask no favor for my sex,” Ginsburg said. “All I ask of our brethren is that they take their feet off our necks.”
Nominated to the bench by President Bill Clinton in 1993, she was confirmed by a vote of 96 to 3. Clinton called her “the Thurgood Marshall of gender-equality law.”
In her 27 years on the Supreme Court, Ginsburg championed equal rights both from the majority and in dissent (which she would mark by wearing a sequined collar). This included her angry dissent in 2006 in Ledbetter v. Goodyear Tire & Rubber when the plaintiff, Lilly Ledbetter, was denied decades of missing wages because the statute of limitations had already passed when she discovered she had been paid far less than the men with whom she worked. “The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” Ginsburg wrote. Congress went on to change the law, and the first bill President Barack Obama signed was the Lilly Ledbetter Fair Pay Act.
In 2013, Ginsburg famously dissented from the majority in Shelby County v. Holder, the case that gutted the 1965 Voting Rights Act. The majority decided to remove the provision of the law that required states with histories of voter suppression to get federal approval before changing election laws, arguing that such preclearance was no longer necessary. Ginsburg wrote: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” As she predicted, many states immediately began to restrict voting after the decision.
Ginsburg’s dissents, in a court veering to the right, made her a cultural icon among liberals and progressives. Admirers called her “The Notorious R.B.G.” after the rapper The Notorious B.I.G., wore clothing with her image on it, dressed as her for Halloween, and bought RBG dolls and coloring books. In 2018, the hit documentary “RBG” told the story of Ginsburg’s life, and as she aged, she became a fitness influencer for her relentless strength-training regimen. She was also known for plain speaking. When asked how many women on the Supreme Court would be enough, for example, she answered “nine.”
Ginsburg’s death has brought widespread mourning among those who saw her as a champion for equal rights for women, LGBTQ Americans, minorities, and those who believe the role of the government is to make sure that all Americans enjoy equal justice under law. Upon her passing, former Secretary of State Hillary Clinton tweeted: “Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you RBG.”
For many, Ginsburg seemed to be the last defender of an equality they fear is slipping away. Robyn Walsh, a University of Miami religion professor, watched the outpouring of grief after Ginsburg’s death and wrote: “It says a lot about us that the loss of one voice leaves women and their allies feeling so helpless. I am grateful for RBG, her advocacy, and her strength. I’m enraged that we find ourselves here.”
That rage, prompted by the prospect of a Trump appointee in Ginsburg’s seat, led donors to pour money into Democratic coffers tonight. Democratic donors gave more than $12.5 million in two hours to the ActBlue donation processing site, a rate of more than $100,000 a minute. The effect of the loss of her voice and vote on the court will become clear quickly. On November 10, just a week after the upcoming presidential election, the court is scheduled to hear a Republican challenge to the Affordable Care Act, also known as Obamacare. In 2012, the court upheld the law by a 5-4 vote.
Ginsburg often quoted Justice Louis Brandeis’s famous line: “The greatest menace to freedom is an inert people,” and she advised people “to fight for the things you care about, but do it in a way that will lead others to join you.” Setting an example for how to advance the principle of equality, she told the directors of the documentary “RBG” that she wanted to be remembered “as someone who did whatever she could, with whatever limited talent she had, to move society along in the direction I would like it to be for my children and grandchildren.”
Upon hearing of Ginsburg’s death, former U.S. attorney and law professor Joyce Vance tweeted: “We should honor the life of RBG, American hero, by refusing to give in, refusing to back down, fighting for the civil rights of all people & demanding our leaders honor the rule of law. This is our fight now.”
Rest in power, Justice Ginsburg.
May her memory be a blessing.
Heather Cox Richardson is Professor of History, Boston College. This was originally published in her Substack newsletter: get your free subscription here.
Outstanding, as we come to expect from HCR.