Ginsburg, Ruth Bader (1933–)

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GINSBURG, RUTH BADER (1933–)

In 1960, Justice felix frankfurter declined to offer a clerkship to recent law graduate Ruth Bader Ginsburg, explaining that the candidate was impressive but he was not "ready to hire a woman." Thirty-three years later, on August 10, 1993, Ginsburg took the oath of office as an Associate Justice of the Supreme Court. Ginsburg's legal career not only spanned this period of transformation, however; her work also catalyzed the change in women's employment opportunities. As a Columbia Law School professor and as director of the Women's Rights Project of the american civil liberties union (ACLU), she selected, briefed, and argued a series of constitutional challenges to laws that discriminated between men and women. Through these cases, often brought on behalf of male plaintiffs, Ginsburg sought to demonstrate that laws based on invalid stereotypes injured both women and men. Working incrementally, from the least controversial cases to the more challenging, Ginsburg persuaded the courts to establish gender equality in a range of public opportunities. As a Court of Appeals judge, and later as a Justice of the Supreme Court, Ginsburg has demonstrated many of the same qualities that marked her pathbreaking work as a litigator. She has manifested a strong commitment to gender equality, marking cases from sexual harassment to equal educational opportunity with her distinctive, liberal feminist vision. But she has also reflected the pragmatic, incrementalist strategy that distinguished her as a litigator. She has often decided cases narrowly, and she has sometimes urged procedural grounds as a basis for building consensus or deferring controversial choices.

Ruth Bader was born March 15, 1933, in the Flatbush section of Brooklyn. Her father, Nathan Bader, owned small clothing stores. Her mother, Celia Bader, whom Justice Ginsburg describes as a formative influence, died of cancer the day before her daughter's graduation from James Madison High School. Ginsburg attended Cornell University, where she graduated with high honors and was elected to Phi Beta Kappa. At Cornell, she met Martin Ginsburg, whom she married shortly after her graduation in 1954. The Ginsburgs then moved to Fort Sill, Oklahoma, where Martin Ginsburg served in the U.S. Army, and Ruth Ginsburg gave birth to their first child, Jane. (A second child, James, was born a decade later.) In 1956 the Ginsburgs moved to Cambridge, Massachusetts, where both were enrolled at Harvard Law School. At the time that the Justice was a first-year student, there were only nine women in a class of over five hundred students. Their presence was viewed not only as atypical, but as problematic. Dean Erwin Griswold, entertaining the women students at a dinner at his home, asked each to explain in turn how she justified taking a position in the class that would otherwise have gone to a man. Despite these pressures, Ginsburg excelled at her studies, and earned a place on the Harvard Law Review. She enjoyed comparable success at Columbia, to which she transferred when her husband took a job in New York City. Notwithstanding these achievements, she was not offered a single job on graduation. "Many firms were just beginning to hire Jews," Ginsburg has explained, "and to be a woman, a Jew and a mother to boot was an impediment … but motherhood was the major impediment. The fear was I would not be able to devote my full mind and time to a law job." Through the determined effort of her academic mentors, she obtained a clerkship with Judge Edmund Palmieri, of the U.S. District Court for the Southern District of New York, who resolved to hire her only after securing the agreement of a recent male law graduate that he would leave his law firm position to assume the clerkship if Ginsburg did not "work out."

Following her clerkship, Ginsburg joined the Columbia Project on International Civil Procedure. In 1963 she was offered a teaching position at Rutgers Law School, only the second woman ever to be hired there. Despite the fact that the Equal Pay Act became law that same year, the dean explained to Ginsburg that, particularly given the state university's limited resources, "it was only fair to pay [her] modestly, because [her] husband had a very good job." She was later part of a large class of women faculty members who filed an Equal Pay Act claim against Rutgers and received a large salary increase in settlement of that claim. During her time at Rutgers, Ginsburg began to take on cases referred by the New Jersey affiliate of the ACLU. These cases, which involved facial inequalities in educational and employment opportunity for women, encouraged Ginsburg to develop and teach one of the first seminars on Women and the Law. At the same time, Ginsburg was invited to write the brief for Reed v. Reed (1971), the first successful constitutional challenge to any law mandating sex discrimination. Following this victory, Ginsburg became the director of the ACLU's Women's Rights Project, which orchestrated a series of constitutional challenges to official denials of equal opportunity to women. In 1972, she also assumed a tenured professorship at Columbia Law School.

Between 1972 and her appointment to the Court of Appeals in 1980, Ginsburg designed and implemented a strategic assault on state and federal legislation that distinguished between men and women. The challenge she faced was substantial, given that many of these legal distinctions were thought to reflect salutary protections for female frailty, and given that her judicial audience—the federal courts—consisted almost entirely of men. The approach she developed to address these difficulties was twofold. First, Ginsburg sought to demonstrate that laws thought to respond to basic, sex-based differences were actually grounded in flawed and injurious stereotypes. To make this point she arrived at the bold stroke of bringing cases involving male plaintiffs. The male plaintiffs, as Professor David Cole has explained, were more likely to elicit the sympathy of the all-male Court, both because the Justices would find it easier to identify with them, and because the harms they suffered as a result of the stereotypic legislation were more concrete. This strategy may be illustrated with the case of frontiero v. richardson (1973), one of the earliest cases brought by Ginsburg and the Women's Rights Project. Frontiero challenged two statutes that provided servicemen with automatic dependency benefits, while servicewomen received benefits only if they demonstrated that their spouses depended on them for more than half of their support. Sharon Frontiero, the servicewoman whose benefits were in question, suffered the dignitary harm of the government's presumptive refusal to treat her as the family breadwinner. Joseph Frontiero, her spouse, however, suffered the more concrete denial of housing and medical benefits. Ginsburg believed that by focusing the Court first on the tangible disadvantage gender classifications created for male plaintiffs, she could ultimately lead them to recognize the dignitary damage done to their female spouses.

The second distinguishing characteristic of Ginsburg's strategy was its careful incrementalism. Her cases moved in a series of gradations from the most straightforward to the most ambitious, and in each case she used the legal premises established in the previous case to build a slightly larger analytic edifice. For example, Ginsburg used the Court's ambiguous invocation of rational basis scrutiny in Reed, to argue for a clarifying standard in Frontiero; and she used a plurality's endorsement of strict scrutiny in Frontiero to argue for heightened, or intermediate, scrutiny in Weinberger v. Wiesenfeld (1975), a strategy that bore fruit the next year in craig v. boren (1976), in which Ginsburg wrote a brief amicus curiae. Ginsburg's incrementalism could be conceptual as well. Reed, which concerned a state legislative preference for male estate administrators, reflected a facial assumption of female inferiority; the differential treatment was not justified by reference to any motive of protection. Yet after her success in Reed, Ginsburg could move on to Frontiero, in which the statutory classification, while also injurious, could be justified by reference to a desire to protect women in their dependent familial roles. Ginsburg scrutinized potential cases closely for the optimal sequential effect, often telling colleagues that it was "not yet time" for a particular case. These strategic choices produced an impressive record of change: not only did Ginsburg persuade the Court to embrace intermediate scrutiny for gender classifications, but she also persuaded the Court to invalidate disparate treatment of men and women, in areas from "mothers' insurance benefits" (Weinberger v. Wiesenfeld, 1975) to jury service (Edwards v. Healy,taylor v. louisiana, 1974).

After President jimmy carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit in 1980, she continued to define and extend the doctrine of gender equality. Yet her record was, in some respects, less progressive than her supporters had expected. She ruled against the right of privacy claim of a discharged gay serviceman in Dronenberg v. Zech (1984) and developed a reputation as a conservative on criminal defense issues. Ginsburg also displayed a surprising tendency toward judicial restraint: she favored narrower, factually contained rulings, and in several contexts voted, as in Randall v. Meese (1988), to resolve controversial cases on procedural grounds. Her public statements about the judicial role also perplexed some longtime supporters. In a speech delivered shortly before her nomination to the Supreme Court, Ginsburg described roe v. wade (1973) as having exacerbated the abortion conflict by injecting a broad judicial holding into a controversy that was beginning to be resolved by state legislatures. Her position remained pro-choice: she argued that a right to reproductive choice might better have been grounded in the equal protection clause than in the right of privacy, so as to comprehend the rights of indigent women. Yet she also opined that a narrower ruling, simply striking down the Texas abortion statute, might have proved less divisive than the detailed opinion that emerged.

Commentators divided over how to interpret Ginsburg's record on the Court of Appeals. Some ascribed her more restrictive opinions to the limitations imposed by precedent; others concluded that her commitment to gender equality was simply a departure from a more substantively, and jurisprudentially, conservative bent. Her performance since her appointment to the Supreme Court in 1993 suggests that precedent may have constrained her on the Court of Appeals: notwithstanding her opinion in Dronenberg, she voted with the majority in striking down the Colorado state constitutional amendment that prevented the state or its subdivisions from legislating against discrimination on the basis of sexual orientation in romer v. evans (1996). Yet Ginsburg's emerging record on the Supreme Court reflects ongoing tensions that continue to absorb of the judiciary.

Ginsburg has remained a resourceful champion of gender equality. Her opinion in united states v. virginia (1996), reflecting the careful historicism and liberal feminist vision that animated her briefs, is to date the best example of this commitment. Ginsburg's opinion for the 7–1 majority not only edged the Court closer to strict scrutiny by demanding an "exceedingly persuasive justification" for sex-based classifications; it also established a right of educational access on behalf of a group of women whose taste for "adversative" military training was far from typical. Yet the typicality of these women, according to Ginsburg, was not the point. Generalizations about women, be they flattering or stereotypical, are precisely what the fourteenth amendment proscribes. Women willing to endure the rigors of this method should not be prevented from doing so because of their gender, but should have the same opportunity to make authentic, if idiosyncratic, choices as do men. With this interpretation, Ginsburg's portrait of woman as an equal, autonomous chooser reached its fullest stage of elaboration.

Yet Ginsburg has also reflected a kind of judicial particularism that contrasts with the more ambitious intervention of warren court liberals, such as Justices william j. brennan, jr. , and thurgood marshall. She has continued to resolve many cases on narrow, fact-specific grounds: even United States v. Virginia does not proceed beyond declaring the unconstitutionality of this particular, single-sex school. She has also resolved some controversial cases on purely procedural grounds: in Arizonans for Official English v. Arizona (1997), the long-awaited challenge to Arizona's controversial " official english " law, her majority opinion dismissed the case on grounds of mootness.

This particularism, however, may reflect less tension with Ginsburg's earlier record than some analysts suggest. Ginsburg has always displayed an acute awareness of factual particularity and the importance of context. Her alertness to the sensibilities of an all-male Court; her understanding of the relations between the successive cases she brought to the Court; and her sensitivity to the "right time" to bring a particular case are all examples of this sensibility. This kind of awareness makes narrow decisions prudent; and procedural grounds—to a former professor of civil procedure—reflect a promising form of narrowness. There may also be a larger jurisprudential concern at play: part of the context that Ginsburg so carefully observes is the institution of which she is a part.

Ginsburg has publicly stated her concern to maintain the legitimacy of the Court, and the larger federal court system. She has warned that this legitimacy may be taxed by overreaching, or by unseemly discord among its members. One solution may be found in the avoidance of unnecessary controversy, and of fruitless antagonism among the Justices. Ginsburg has counseled against writing separately, particularly in divisive terms. The "effective judge," she wrote in 1992, "speaks in a 'moderate and restrained' voice, engaging in dialogue with, not a diatribe against, co-equal departments of government, state authorities, and even her own colleagues." She has also sought to preserve harmony by seeking common ground. Justices should continually ask, Ginsburg recently stated, "Is this conflict really necessary? Perhaps there is a ground, maybe a procedural ground, on which everyone can agree, so that the decision can be unanimous, saving the larger question for another day." Thus it may be today, as it was during her career as an advocate, that Ginsburg's activism is shaped by its emergence in a particular political and institutional context. That context was once the solipsistic paternalism of a male judiciary; it is now the embattled legitimacy of the Supreme Court.

Kathryn Abrams
(2000)