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Friday, September 18, 2020

Ruth Bader Ginsburg, feminist icon, dies at 87

Justice Ruth Bader Ginsburg on November 30, 2018. | Jabin Botsford/The Washington Post via Getty Images

The Supreme Court justice was a trailblazer for American women.

Ruth Bader Ginsburg, who died on Friday at the age of 87, spent 27 years on the Supreme Court, casting key votes on issues from same-sex marriage to gender discrimination. She also became an icon for many women, celebrated especially in recent years, as some of the causes she championed came under attack.

She made her mark on American history decades before she joined the bench. While at the American Civil Liberties Union, she wrote the plaintiff’s brief in Reed v. Reed, a groundbreaking 1971 Supreme Court case which established that the Equal Protection Clause of the 14th Amendment could be used to challenge gender discrimination. The case opened the door for discriminatory laws around the country to be struck down, and began one of the most influential periods of Ginsburg’s career, as she worked to achieve equality for American women.

Ginsburg believed “that women should be able to lead flourishing lives according to their gifts” and “that anything society does to make it harder for them to lead flourishing lives is immoral and unconstitutional,” Linda Hirshman, the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, told Vox.

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President Bill Clinton with Supreme Court Justice nominee Ruth Bader Ginsburg on June 1, 1993.
 Jabin Botsford/The Washington Post via Getty Images
Justices of the US Supreme Court sit for their official group photo on November 30, 2018.

Those beliefs were evident in Ginsburg’s work on the Supreme Court — from her majority opinion in United States v. Virginia, which struck down a military college’s men-only admissions policy, to her famous dissents in cases like Gonzales v. Carhart, which upheld a ban on so-called “partial-birth” abortion and in her personal life, including her 56-year marriage to fellow lawyer Martin Ginsburg, seen by many as a model of mutual support and shared family responsibility. They also helped make her, in her later years, a cultural icon, subject of the bestselling book Notorious RBG and the film On the Basis of Sex.

Today, Ginsburg’s image adorns T-shirts, mugs, and even baby onesies. And while, as Dahlia Lithwick notes at the Atlantic, “the fandom can border on condescension,” it speaks to something crucial about Ginsburg’s place within American culture. She became beloved not just because of what she did but because of who she was: an exacting legal mind, famed for her dissents, but also a woman who, in Hirshman’s words, “had a life of joy and pleasure.”

Her death during the presidency of Donald Trump, just weeks before the 2020 election, casts her legacy into doubt — whoever the president chooses to replace her is not likely to share her ideals. But Ginsburg’s commitment to helping other women enjoy the kind of “flourishing life” she lived made her a role model for a generation of Americans who have seen both the advances of the feminist movement and how much remains to be done.

Ginsburg changed the face of anti-discrimination law in America

Born in Brooklyn in 1933, Ginsburg was a strong — and strong-willed — student at PS 238 in the borough’s Midwood neighborhood. A teacher forced the young Ginsburg, who was left-handed, to write with her right hand, and she received a D in penmanship, according to My Own Words, a collection of the justice’s writings. After that, she vowed never to write with her right hand again.

Ginsburg kept her vow and became an accomplished writer at a young age. When she was just 13, in 1946, she wrote an article on the impact of World War II in the bulletin of her family’s temple, the East Midwood Jewish Center.

“We are part of a world whose unity has been almost completely shattered,” Ginsburg wrote. “No one can feel free from danger and destruction until the many torn threads of civilization are bound together again.”

Ginsburg went on to attend Cornell University on scholarship, according to My Own Words, where she majored in government but also studied with the novelist Vladimir Nabokov. In her freshman year she met Marty Ginsburg, then a sophomore, who would become her husband. They married in 1954, just after her college graduation, and in 1956 Ginsburg became one of just nine women in her first-year class at Harvard Law School.

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Portrait of Ruth Bader Ginsburg in 1977.
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Judge Ruth Bader Ginsburg in her chambers in 1984.

She later transferred to, and graduated from, Columbia Law School, and joined the Columbia Law School Project on International Procedure, where she spent extensive time in Sweden. It was there that she began thinking seriously about women’s rights for the first time, she said in a 2015 interview with the New York Times.

In the early 1960s, “between 20 and 25 percent of the law students in Sweden were women. And there were women on the bench,” she said. “I went to one proceeding in Stockholm where the presiding judge was eight months pregnant.”

In 1963, after her time at Columbia, Ginsburg became a professor at Rutgers University Law School. Seven years later, when she was 37 and had recently been tenured, she proposed a class on gender-discrimination law. As Dahlia Lithwick notes at the Atlantic, a male professor at NYU had once opined that such a course would be about as useful as one on bicycle law. But the class went forward, and Ginsburg began the professional focus on gender equity that would come to define her career.

In 1971, working as a volunteer attorney with the American Civil Liberties Union, Ginsburg wrote a brief on behalf of Sally Reed, the divorced mother of a teenage boy. Reed had fought to keep her ex-husband from having any custody of their son, but she had been unsuccessful, as Ginsburg noted in a speech in 2008. The boy, while staying at his father’s house, shot and killed himself with one of his father’s guns.

Sally Reed wanted to recover her son’s belongings, but her ex-husband petitioned to keep them as well. A probate court in Idaho, where they lived, sided with the ex-husband under a state law requiring that when two parties were equally qualified to receive a deceased person’s estate, “males must be preferred to females.” Reed appealed, and the case ultimately wound up before the Supreme Court.

In her brief, Ginsburg argued that the law violated the Equal Protection Clause of the 14th Amendment. The Supreme Court agreed, in an unanimous decision with huge implications.

“Thanks to Sally Reed, the door was opened for other women and men to successfully challenge discriminatory laws” and practices governing everything from men’s control over marital property to admission to public military colleges, Emily Martin of the National Women’s Law Center wrote on the 40th anniversary of Reed v. Reed in 2011.

Ginsburg’s work against gender discrimination wasn’t over. Before writing the brief in Reed v. Reed, she had written one in a case called Moritz v. Commissioner, which came before the 10th Circuit Court of Appeals. Charles Moritz was a caregiver for his mother, and he was suing the IRS to challenge a tax provision that allowed single women, but not single men, to receive a tax deduction for dependent-care expenses.

The 10th Circuit sided with Moritz, but US Solicitor General Erwin Griswold appealed to the Supreme Court, arguing that the 10th Circuit decision called into question the constitutionality of a whole host of federal laws. He helpfully provided a list of said laws, which Ginsburg used as a “a road map for reform efforts,” she said in her 2018 speech at Wake Forest Law School. As coordinator of the ACLU’s newly created Women’s Rights Project, she began going down the list, challenging laws that treated Americans differently on the basis of gender.

In that same speech, Ginsburg told a story that illustrates the breadth of legal and cultural change she helped spark. In 1970, Air Force Captain Susan Struck became pregnant. At that time, pregnant women in the Air Force were forced to choose between getting an abortion or being discharged. Struck didn’t want an abortion, she sued, and the ACLU took her case.

The Supreme Court agreed to hear the case, but Griswold, the same solicitor general who gave Ginsburg her road map, persuaded the Air Force to change its policy and recommended that the case be dismissed as moot. Ginsburg, wanting to keep the case alive, asked Struck in 1972 whether she had been discriminated against in any other way in the Air Force. Struck replied that because she was a woman, she had not been allowed to train as a pilot.

“We laughed, agreeing it was hopeless to attack that occupational exclusion then,” Ginsburg told Wake Forest Law School. “Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men. That is one measure of what the 1970s litigation/legislation/public education efforts in the United States helped to achieve.”

On the Supreme Court, Ginsburg became known for her dissents

Ginsburg’s work at the ACLU continued until 1980, when then-President Jimmy Carter appointed her as a judge on the DC Circuit Court of Appeals. There she was known as a centrist and a “judge’s judge,” admired for her “careful decision-making,” Jane S. De Hart, an emerita professor of history and author of the biography Ruth Bader Ginsburg: A Life, told Vox.

That reputation didn’t change immediately after she was appointed to the Supreme Court by Bill Clinton in 1993. She did dissent, perhaps most notably in the 2003 affirmative-action case Gratz v. Bollinger, but in general, “the language of the dissent was very neutral,” De Hart said. “She didn’t personalize in any way.”

Things started to shift in 2005, when President George W. Bush appointed Chief Justice John Roberts, and, soon after, Justice Samuel Alito. As the Court became more conservative around her, Ginsburg’s dissents became “more pointed,” De Hart said, and “her prose also became more colorful.”

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Joseph Biden, chair of the Senate Judiciary Committee, speaks with Ginsburg shortly before her confirmation hearing on July 20, 1993.
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President Bill Clinton with US Supreme Court judges in 1993.

Her dissent in the 2013 case Shelby County v. Holder, in which the Court essentially gutted the Voting Rights Act, became especially famous. The case centered on the requirement, under the Act, that certain areas with a history of discriminatory laws get “preclearance” from the federal government before enacting new voting rules. The majority on the Court argued that the process for determining which areas needed preclearance was outdated and unnecessary. But, Ginsburg wrote in her dissent, “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.”

The dissent inspired Shana Knizhnik, a law student at the time, to create the Notorious RBG Tumblr, which would lead to a bestselling book and a raft of RBG-themed merchandise.

Of course, Ginsburg’s career on the Court was about more than her dissents. She wrote the majority opinion in the influential 1996 case United States v. Virginia, in which the Court ruled that the Virginia Military Institute’s policy against admitting women was unconstitutional because the school did not show an “exceedingly persuasive justification” for excluding women.

Ginsburg was also a core member of the Court’s liberal wing, casting important votes in cases like Obergefell v. Hodges, which established the right of same-sex couples to marry. Especially after President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh, she was seen by advocates on both sides of the issue as a crucial bulwark against the overturning of Roe v. Wade, the landmark 1973 decision that established Americans’ right to an abortion.

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Justices Samuel Alito, Ruth Bader Ginsburg, and Stephen Breyer arrive at President Trump’s inauguration on January 20, 2017.

Ginsburg criticized the legal rationale behind Roe, but was a staunch defender of abortion rights, writing in her dissent in Gonzales v. Carhart that the majority’s decision to uphold a so-called “partial-birth” abortion ban, which prohibited a type of later abortion in which part of the fetus is removed intact, “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court — and with increasing comprehension of its centrality to women’s lives.”

Trump’s appointment of Kavanaugh in 2018 was seen as a victory for abortion opponents, but many mainstream anti-abortion groups took the view that while Ginsburg remained on the Court, there was no reliable majority to overturn Roe. With her death, that calculus has changed.

Ginsburg’s cultural impact was as important as her legal one

Ginsburg’s dissents didn’t have the force of law — you only write a dissent, after all, when you’re on the losing side. But Ginsburg wrote them in such a way that her ideas could influence the country as a whole, from Congress to advocacy groups to ordinary voters. Her dissents illustrate the concept of popular constitutionalism, De Hart said: “the people, and the pressure groups and social movements that they can mobilize, do ultimately affect the Constitution.”

In her dissent in Gonzales v. Carhart, Ginsburg made “a very, very powerful cultural point,” Hirshman said, essentially telling the majority on the Court to “stop telling women they can’t think for themselves.” She was making the point in the context of abortion rights, but it was “really of a piece with all of her life’s work,” Hirshman said.

But it wasn’t just her work that made her an icon to so many Americans. Part of her appeal was her ability to lead a joyful life even as she worked to change the world, Hirshman said. She was known for her love of opera and Ferragamo shoes, and her trademark collars were immortalized in necklaces and even bibs.

In her later years, the justice became known for her workout routine, so strenuous that it left “young and reasonably fit” Politico reporter Ben Schrekinger “sore, disoriented and cranky” when he gave it a try.

“Sometimes I get so absorbed in my work I just don’t want to let go,” Ginsburg said in a 2019 interview. “But when it comes time to meet my trainer I drop everything.”

Meanwhile, sharing Ginsburg’s full life until his death in 2010 was her husband, lawyer Martin Ginsburg. In My Own Words, Ginsburg writes that the two shared domestic responsibilities (not necessarily the norm in the 60s and 70s), with Martin doing all the cooking for them and their two children. He even released a cookbook called Chef Supreme.

 Washington Post via Getty Images
Ruth Bader Ginsburg with her husband Martin Ginsburg.

“Marty coached me through the birth of our son, he was the first reader and critic of articles, speeches, and briefs I drafted, and he was at my side constantly, in and out of the hospital, during two long bouts with cancer,” Ginsburg writes. “And I betray no secret in reporting that, without him, I would not have gained a seat on the U.S. Supreme Court.”

Ginsburg believed that in order to lead the “flourishing life” they deserved, women had to be “treated equally not just at the workplace but in the family,” Hirshman said, and by all accounts, her marriage exemplified that ideal.

Ginsburg was criticized by some for failing to step down from the Court during President Barack Obama’s time in office, ensuring that she would be replaced by another liberal. But her profile as a cultural icon only grew in the Trump era, with young progressives looking to her for inspiration. T-shirts and other memorabilia reading “I dissent” became popular, seeming to reference not only Ginsburg’s opinions but also a general attitude toward the direction of the country. Two films about her life, the biopic On the Basis of Sex and the documentary RBG, were released in 2018; the latter was nominated for an Oscar.

All the “Notorious RBG” hype risked oversimplifying Ginsburg’s intellectual strengths — “she is less a radical feminist ninja than a meticulous law tactician,” Lithwick wrote at the Atlantic. But her public image is as much a part of her cultural impact as her dissents, especially for a generation of young Americans who looked to her as a symbol of radical gender equality — a value that, as Hirshman points out, she believed in, fought for, and lived.

Demonstrator carrying a sign with Ginsburg in boxing gloves, reading: “Fight like RBG” Ira L. Black/Corbis via Getty Images
A demonstrator evokes the tenacity of Justice Ruth Bader Ginsburg while participating in the Woman’s March in New York City on January 18.

In a 2018 essay in Glamour, Ginsburg’s granddaughter Clara Spera wrote that Ginsburg had hosted her third birthday party at the Supreme Court, just months after becoming a justice.

“I realize now that my birthday party wasn’t held there to show off or because the Court’s such an impressive space,” she wrote; “it was because she wanted me to know, from the age of three, that my grandmother, my ­Bubbie, worked there, and that I shouldn’t consider anything out of my reach.”

For many American women, Ginsburg stood as a symbol of a future in which nothing would be out of reach for them. And in her work, from her years at the ACLU to her time on the Court, she fought to make that future happen.


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