Justice Ruth Bader Ginsburg made an indelible mark on the law as an advocate for gender equality long before she became an icon on the U.S. Supreme Court. She died Friday at age 87.
Ginsburg designed a legal strategy that directly challenged longstanding gender stereotypes as a way to fight sex discrimination, legal scholars said. The arguments she advanced as an attorney led to decisions that tore down biased laws, recognized new protections for women workers, and created precedents that continue to influence the law decades later, scholars said.
“She transformed the lives of American women, opening doors of opportunity,” said Dorothy Samuels, a senior fellow at the Brennan Center for Justice who’s writing a book on Ginsburg. “There’s not a woman today who doesn’t owe her a debt of gratitude.”
The closest parallel to Ginsburg’s work as strategist behind the courtroom fight for legal equality for women in the 1970s is Thurgood Marshall, who did much the same in the legal battle for civil rights in the 1940s and 1950s. Both are the rare justices whose courtroom achievements before joining the court ensured they’d be long remembered regardless of what they did as justices.
Ginsburg’s groundbreaking advocacy focused on convincing courts to view the use of gender stereotypes to make decisions as sex discrimination, scholars said. She worked on these cases with the American Civil Liberties Union, leading its Women’s Rights Project from the group’s founding 1972 until she joined the federal bench in 1980.
Representing men as well as women, Ginsburg pursued an incremental approach attacking stereotypes and showing how outdated notions of men-as-breadwinner and women-as-caregiver hurt both genders, scholars said.
“What Ruth Bader Ginsburg did was persuade a Supreme Court of Justice Thurgood Marshall and eight pretty recalcitrant white guys that women were protected under the Constitution and entitled to equal protection and gender equality,” said Joan Williams, a law professor and director of the Center for WorkLife Law at UC Hastings.
Demonstrating how stereotyped gender roles disadvantaged men was probably the only way to convince those white male justices that such roles were a problem rather than a solution or an expression of human nature, Williams said. Academics and advocates built on Ginsburg’s achievements to fight bias against workers based on their family care-giving duties under an array of federal laws, she said.
“When we came along championing family responsibilities discrimination, we put that at the center, and said stereotypes about mothers are evidence of sex discrimination,” Williams said.
Gender discrimination wasn’t just a theoretical issue for Ginsburg, who couldn’t get a job with a New York law firm or a Supreme Court clerkship after she earned her law degree from Columbia University. Instead, she clerked for a district court judge, took a position with Columbia researching Swedish law, and then joined Rutgers University’s law school faculty.
Speaking at Georgetown Law in July 2019, Ginsburg reminisced about a conversation she had with retired Justice Sandra Day O’Connor, who also couldn’t get a job right out of a top law school. O’Connor asked how their lives might have turned out if there hadn’t been discrimination.
“We’d be retired partners from some law firm,” Ginsburg said. “But because we didn’t have that route, we had to find another way.”
In the 1970s, Ginsburg took to the courtroom to challenge gender-based classifications on constitutional grounds, primarily equal protection under the law guaranteed by the U.S. Constitution. Her involvement in that run of cases started as the lead author of the ACLU’s brief in
Reed v. Reed, a landmark 1971 Supreme Court ruling that struck down part of the Idaho probate code that gave men preferential treatment over women when naming estate administrators.
Ginsburg went on to argue six cases at the high court that centered on sex stereotypes, prevailing in five. Those victories included a 1973
ruling that invalidated laws applying different criteria to determine benefits for male and female members of the military, a 1978
decision striking down a Missouri county’s rule that exempted women from jury duty, and opinions in
1977 that said the Social Security Act’s denial of benefits to widowers that widows could receive was unconstitutional.
The second of the two death benefits rulings, Califano v. Goldfarb, was perhaps the most important of the cases that Ginsburg argued at the Supreme Court, said Jane Sherron de Hart, author of “Ruth Bader Ginsburg: A Life.” Ginsburg persuaded the justices in that case to overturn a ruling that had denied a widower’s claim for benefits even though his wife had paid Social Security taxes on her earnings for 25 years.
“She not only attacked old stereotypes about who earns wages, but she was also trying to make sure that women’s labor outside of the home really matters,” de Hart said.
Heightened Scrutiny for Gender Distinctions
Ginsburg wrote the ACLU’s brief in
Craig v. Boren, a major 1976 ruling that advanced gender equality by establishing that judges should use heightened scrutiny when reviewing the constitutionality of laws that make sex-based distinctions.
In Craig, the Supreme Court created the “intermediate scrutiny” standard, which asks whether the law in question furthers an important government interest and is substantially related to that interest. That standard is more stringent than the “rational basis” test, but more lenient than “strict scrutiny” review.
Applying that heightened scrutiny means that courts won’t treat gender the way they treat other factors that justify distinctions that the government makes, said Samuel Bagenstos, a University of Michigan law professor who clerked for Ginsburg.
“We’ve had a long-running system of confining men and women to particular stereotyped roles, but if we let the law reinforce those stereotypes then it doesn’t allow people to be equal,” Bagenstos said. “Heightened scrutiny says you can’t rely on those stereotypes.”
Twenty years later, Ginsburg reaffirmed that legal differences based on gender deserve heightened scrutiny when she wrote the Supreme Court’s
majority opinion holding the Virginia Military Institute’s male-only admittance policy was unconstitutional.
Contributions to Anti-Bias Law
Ginsburg’s work as a lawyer centered on fighting gender inequality through equal protection challenges, but her development of gender stereotyping as a legal concept also influenced the evolution of workplace laws, said Stephanie Bornstein, a law professor at the University of Florida.
That impact is evident in the Supreme Court’s 1989 decision in
Price Waterhouse v. Hopkins, which said discriminating against workers for failing to conform to gender stereotypes violates Title VII of the 1964 Civil Rights Act, Bornstein said.
Other examples include high court decisions ending employer practices that
required women to make higher pension contributions because they generally live longer and
barred women from battery-making jobs due to concerns about their future children, she said.
Ginsburg had a “huge impact” as an attorney by being very careful about the cases she brought and recognizing that sex stereotyping burdens men as well as women, said Catherine Fisk, a law professor at UC Berkeley.
“I can’t think of any living person who has had a greater influence on the law of sex discrimination than Ruth Bader Ginsburg,” Fisk said prior to Ginsburg’s death. “That’s not just workplace law, but every other aspect of the law.”
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