By: Alexandra Cook and Ryan McConville
The world lost one of the founding women figures in the battle against gender discrimination on September 18th, 2020, U.S Supreme Court Justice Ruth Bader Ginsberg at the age of 87. For over 45 years, people around the world have felt incredibly lucky to be able to have learned or taken something of importance from such a powerful and commanding figure.
Ruth began her law career attending Harvard Law School as one of nine women in the 1956 class. Being invited to a “women at Harvard” law dinner one night, Ruth had to answer to the Dean of Harvard Law School “Why as a woman are you occupying seats that would otherwise be filled by men?” Of course, this did not deter Ruth (fondly referred to by her followers over the years as RBG) but only fuelled her determination to prove she deserved to be in her seat.
Not only did RBG finish at the top of her class but she did so while raising her first daughter, attending her husband Marty’s classes for him and writing his dictated essays while he underwent cancer treatment, and transferring to Columbia Law School because her husband was offered a job in New York after graduating Harvard Law.
Despite her impressive accomplishments, RBG faced discrimination post-graduation in 1959 based on her sex including being denied a supreme court justice clerkship, being denied a job as an associate at every law firm she applied to, and when she did eventually get a job as faculty at Rutger’s Law School, she discovered her salary was significantly less than that of her male cohorts.
Based off of her experiences, RBG pursued sex discrimination cases through the American Civil Liberties Union (ACLU) and co-formed the ACLU Women’s Rights Project in 1972. That same year Ruth was the first woman to be granted tenure at Columbia Law School. RBG was the first woman to successfully argue a case for the application of strict scrutiny to gender discrimination in the Supreme Court, just as the concept applied to race discrimination in Frontiero v Richardson, 411 U.S. 677 (1973).
RBG had a way of using male plaintiffs in equal protection cases such as Frontiero to demonstrate that sex-based distinctions harm men AND women- not to mention using male plaintiffs seemed to work in her favour for helping the all-male supreme court judges understand her arguments in a way they could relate to.
RBG helped accomplish many great feats for women before the Supreme Court, a total of 6 cases, including: having discrimination against pregnant women in the workplace recognized as unlawful sex discrimination (Pregnancy Discrimination Act in 1978, an amendment to Title VII); abolishing forced sterilization in the South; a women’s right to reproductive rights, and so much more.
RBG was appointed as the second ever women U.S Supreme Court Justice ever in 1993 by President Clinton. Ruth began a tireless 27-year journey arguing on behalf of gender equality, women’s rights, racial discrimination becoming the queen of dissent often among a majority male-republican bench. Her last vote on women’s reproductive rights was for the case Little Sisters for the Poor Saints Peter and Pauls Home vs Pensylvannia (2019).
RBG dissented against the court’s decision to allow companies to refuse to offer their female employees health insurance that covers birth control, even if it is possible to do without compromising religious or moral beliefs. This was an essential element in the Affordable Health Care Act enacted in 2010, created for new insurance policies to cover preventive healthcare services, where women’s conception has now been ruled by 6 men and one woman as apparently not “preventative healthcare”.
In another landmark case in 2016, RBG dissented against a Texas law HB 2 that required abortion clinics to be outfitted like ambulatory surgical centres and staffed by doctors with hospital admitting privilege. She stated: “it is beyond rational belief that HB 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.” Two of RBG’s most famous quotes about a women’s right to choose are noted below:
"My idea of how choice should have developed was not a privacy notion, not a doctor's right notion, but a woman's right to control her own destiny, to be able to make choices without a Big Brother state telling her what she can and cannot do."
"This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."
Justice Ginsburg’s judicial vigour extended far beyond her famous jurisprudence regarding gender equality. The scope of her imprint upon precedence in the United States also touched upon such relevant subject matters as the affirmation of voting rights and a federal extension of equal marriage protections for LGBTQ+ couples, as well as the rights of immigrants and the furthering of the rule of law in the midst of the uncertainty surrounding the result of the 2000 presidential election. Throughout her legal career, she placed civil rights protections at the heart of her decisions. Through analyzing the positions that she took in key cases concerning these subject matters, we can ascertain the principles that guided her judicial philosophy.
Justice Ginsburg’s position on voting rights was most famously demonstrated in the 2013 case of Shelby County v Holder. The central question presented before the Supreme Court related to the Voting Rights Act of 1965, which was implemented to dispel of racial discrimination that occurred in voting. This Act also formed rules that were intended to protect the Act from changes in the future.
One such section is 4b, which established a formula used to identify areas where discrimination on racial lines was prevalent and to provide provisions in such areas. Section 5 stipulates that jurisdictions must seek the approval of either a three-judge panel in Washington D.C. or the attorney general to make changes in the voting practices. Section 5 of this Act was intended to expire following five years, but it was reinstated multiple times, which was argued by Shelby County to be unconstitutional.
The majority of the Supreme Court (a 5-4 majority) decided that section 4 was unconstitutional as it imposed undue burdens which were classified by the majority as an undue burden upon the power to regulate elections.
In a passionate dissent, Justice Ginsburg argued that Congress had the requisite authority to implement legislation which targeted abuses of powers by the states, provided Congress demonstrate that a legitimate objective was being furthered. This case presented an example of Justice Ginsburg’s commitment to justice for all people, regardless of income status or geographical location.
Perhaps one of the most important recent cases that Justice Ginsburg presided over was the Obergefell v Hodges 2015 case. This case centred upon the claim provided by fourteen same sex couples and two men who lived in the states of Tennessee, Ohio, Kentucky and Michigan. At this time, the respective states defined marriage as an institution available only to heterosexual couples. It was argued that the narrow scope of this investigation was in violation of the 14th Amendment of the constitution, as it restricted their rights to enter into a marriage with their partners.
Justice Ginsburg voted with the majority (a 5-4 majority) in this case, ruling that bans on same-sex marriages violated the 14th Amendment clauses on Equal Protection Clauses and Due Process. In doing so, she removed same-sex marriage regulation from beyond the scope of individual state’s reach; instead legalising same-sex marriage at a federal level. This case displays a further commitment of Justice Ginsburg to the protections of civil liberties; a principle echoed throughout her career.
In conclusion, as Editors of The Verdict, we thought it important to recognise the immense imprint that Justice Ginsburg had upon both American and worldwide jurisprudence. She led a life defined by public service, the protection of rights and the insurance of the rule of law. She has shown us all that the power of dissent is an incredibly powerful tool, a tool which can be used to protect the public interest. Her sense of duty will not be forgotten, her love of the law will remain an inspiration and her advice to law students will remain a reminder that we should always remain humble in the pursuit of law.