A Life’s Work: Justice Ruth Bader Ginsburg — Ruby Peacock

25 September 2020 by

Ruth Bader Ginsburg. Image: The Guardian

In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life. 

To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.

1971-1978 — Early litigation

Having graduated from law school, Ginsburg found law firms entirely unwilling to hire her because of her gender. She therefore moved into academia, teaching civil procedure and, at the request of her students, a course on gender law. She subsequently began her career as a litigator at the American Civil Liberties Union (ACLU), where she co-founded the Union’s Women’s Rights Project. As Director and General Counsel of the Project, Ginsburg argued a number of equality and discrimination cases that are now landmarks in US legal history. 

1971 — Reed v. Reed, 404 U.S. 71

As a volunteer attorney, Ginsburg wrote the brief for Sally Reed in her challenge to an Idaho state law which required that men be preferred over women where parents sought to be appointed as administrator of their child’s estate following an intestate death. The law, which dated back to 1864, stated: “of several persons claiming and equally entitled to administer, males must be preferred to females.” [emphasis added] Idaho Code, Section 15-314 (1864). 

Reed’s son died intestate at the age of 16, and both Reed and her divorced husband filed a petition in the Probate Court to be named as the administrator. The Court elected Reed’s ex-husband as administrator. In giving its judgment, the Probate Court acknowledged that Reed was equally qualified for the role in every way other than her sex.

Reed challenged this decision in the District Court and the Idaho Supreme Court, only to be roundly rejected. The Idaho Supreme Court found that the 14th Amendment of the US Constitution, which grants “equal protection of the laws” to all US citizens, was not violated by Section 15-314. Instead, it found that the State was able to differentiate between different classes of citizens, and that Section 15-314’s differentiation between women and men bore a rational relationship to the state’s objective of reducing expensive probate litigation [1]. 

It was at this point that the American Civil Liberties Union took on the case and argued it before the US Supreme Court. The judgment of the Supreme Court was unanimous: 

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; […] the choice in this context may not lawfully be mandated solely on the basis of sex.

Reed v. Reed, 404 U.S. 71 (1971) at 76-7

This case was the first time that the Supreme Court had struck down a state law on the basis that it violated the 14th Amendment due to gender discrimination. 

It also set the tone of Ginsburg’s pursuit of equality in the courts. Her methodology was strategic. She did not stand before an all-male Supreme Court and ask it to overthrow patriarchal values in one fell swoop — an approach likely to fail. Instead, her approach was cautious. Ginsburg explained to the Senate Judiciary Committee: ‘real change, enduring change, happens one step at a time’ [2].

1972 — Moritz v. Commissioner of Internal Revenue, 469 F2.d 466 

One of Ginsburg’s lesser-known cases, Moritz is often omitted from lists of her landmark gender triumphs. Of interest, however, if that fact that it was the first case Ginsburg ever argued before a court, despite having graduated from law school over a decade prior.

Charles Moritz sought to challenge Section 214 of the Internal Revenue Code, a federal law which provided a ‘general rule’ that women, widowers, and husbands whose wives were incapacitated could claim a tax deduction for expenses stemming from the care of their dependents. Self-evidently, this law was couched traditional gender-stereotypes which define women as caregivers, and men only as caregivers when forced into this role by a spouse’s death or disability. 

Moritz, who had never been married, sought to take benefit of this tax reduction for expenses incurred as a result of caring for his mother. The Internal Revenue Service denied this on the basis that Moritz did not fit into the clearly defined class of taxpayers who could benefit under Section 214. Moritz took his case to the Tax Court, which rejected his arguments that Section 214 violated the Fourteenth Amendment. It was at this stage that Ginsburg became his lawyer and argued his case before the federal Tenth Circuit Court of Appeals. Relying on the Fourteenth Amendment, Ginsburg argued that the law was both irrational and unconstitutional. However, instead of arguing, as in Reed, that the offending statute be struck down, Ginsburg argued that the Code should be read so as to widen the class of persons who could benefit from the tax deduction to include all men. 

The Tenth Circuit’s judgment was brief — a mere four pages. It read:

If the Congress determines to grant deductions of a general type, a denial of them to a particular class may not be based on an invidious discrimination […] Section 214 gave the deduction to a woman or widower, a divorce and a husband whose wife is incapacitated or institutionalized, but denied it to a man who has not married. We must agree that the classification here premised primarily on sex must be scrutinized. Where treatment accorded is based on sex the classification is subject to scrutiny under equal protection principles. […] Reed v. Reed.

Moritz v Commissioner of Internal Revenue, 469 F2d 466 (1972), at 469-70.

The Court’s judgment is indicative of the step-by-step progress which Ginsburg was pursuing. Building on Reed, Ginsburg was laying foundations in the common law for enduring change. The case also shows her strategically representing male petitioners to demonstrate to an overwhelmingly male judiciary that gender discrimination damages everyone. 

1973 — Frontiero v. Richardson, 411 U.S. 677

This is perhaps the most well-known of Ginsburg’s cases as a litigator and the first of a series of oral arguments made by Ginsburg before the Supreme Court between 1973 and 1978.

Sharon Frontiero, a lieutenant in the US Air Force, was denied a dependent’s allowance for her husband on the basis that he was not considered a dependent under federal law. Frontiero sought to challenge two federal statutes, which provided that wives of members of the US military were considered a dependent of their husband, whereas husbands were not dependents of wives.

Frontiero and her husband sought to challenge this decision by the Secretary of Defense on the basis of the Fifth Amendment right to due process, but were unsuccessful in the federal District Court. Ginsburg was brought onto the case on direct appeal to the Supreme Court.

Ginsburg argued that the statutes unreasonably discriminated on the basis of sex in violation of the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment. It is likely, on the basis of Reed, that Frontiero could have been successful in law without reference to the treatment of women in society. However, Ginsburg and her colleagues took the decision to provide the court with a wide-ranging, all-encompassing description of the plight of women in US society:

Women today face discrimination in employment as pervasive and more subtle than discrimination encountered by minority groups.

In vocational and higher education, women continue to face restrictive quotas no longer operative with respect to other population groups.

Their absence is conspicuous in Federal and State Legislative, Executive, and Judicial Chambers in higher civil service positions and in appointed posts in federal, state, and local government.

Transcript of Oral Argument, Frontiero v. Richardson, 411 U.S. 677 (No. 71-1694), in 76 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 848–56 (Philip B. Kurland & Gerhard Casper eds, 1975).

Ginsburg went on to quote Sarah Grimké, a noted 19th century feminist and abolitionist: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

Such an argument had never before been made in the Supreme Court. Although the particular federal statutes were found to be unconstitutional, the Court refrained from ruling that all statutes which classify citizens on the basis of sex should be subjected to a heightened standard of review, over and above the ‘rational basis’ which was at that time required. 

In response, Ginsburg’s view was that she was prepared to make the same argument many times before it may ultimately be accepted [3].

1975 — Weinberger v. Wiesenfeld, 420 U.S. 636

Another case in which Ginsburg represented a male petitioner, Weinberger, solidified a line of jurisprudence recognising sex-based discrimination as violating both the Fifth and Fourteenth Amendments of the Constitution.

As with Moritz and Frontiero, this case focussed on on legislation governing certain benefits which were available to one sex over another. Stephen Wiesenfeld sought to challenge Section 402(g) of the Social Security Act of 1935, which provided for special benefits which surviving female spouses (or widows) could claim for the care of children, but which surviving male spouses (widowers) could not. Wiesenfeld’s wife died during childbirth, and when he took the decision to become primary caregiver for his son, he wanted to claim the benefit under Section 402(g), but was denied because he was not a woman.

Ginsburg came onto the case on appeal, arguing that Wiesenfeld and his deceased wife were being discriminated against; he, because he could not access social security benefits on the same basis as a woman, and she, because the social security contributions made during her lifetime were not being valued on the same basis as those made by male counterparts. 

In making the case, Ginsburg deployed subtle tactics. Wiesenfeld explains that she asked him to sit next to her whilst she made her oral argument so that the bench could see and identify with the petitioner at the centre of the case [4]. Ultimately, eight justices agreed with Ginsburg’s arguments that Section 402(g) was unconstitutional.

1976 — Craig v. Boren, 429 US 190

This was another challenge to a statute which classified citizens along gender lines — in this case, an Oklahoma state law which restricted particular strength of beer from sale to women under 18 years, but to men under 21. Ginsburg did not argue the case orally, but provided assistance to the attorney handling the case and intervened as amicus curiae

The majority held that the sex classification in the statute was unconstitutional. But the novel element of this decision was that the Court now accepted that a higher standard of review than the ‘rational basis’ affirmed in Frontiero was required where a statute classified citizens on the basis of gender. The new standard of review was described by the Court as an ‘elevated or “intermediate” level scrutiny’ (Craig v. Boren, 429 US 190, at 218). It required the government to demonstrate that the purpose of classifying citizens by gender must bear a substantial relationship to important government objectives, which themselves must be identified. This ruling demonstrated that the Supreme Court was willing to accept that gender discrimination cases, like racial discrimination cases, required enhanced legal protection.

1980-1993 — The Court of Appeals for the District of Columbia Circuit

In 1980, Ginsburg began her career as a judge on the US Court of Appeals, where she served for 13 years. Ginsburg’s record on the Court of Appeal is remarkable in that it was unremarkable. She gained a reputation for being a moderate liberal, who favoured a collegiate approach. This reputation led some feminist activists to be concerned, when she was nominated in 1993 to the Supreme Court, that Ginsburg would not be a sufficiently outspoken ally to the female liberation movement. It appears that this was tactical. Ginsburg explained in a lecture at the New York University School of Law, shortly before her Supreme Court nomination: ‘Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable’.

1993-2020 — The Supreme Court of the United States

During her time on the Supreme Court, Justice Ginsburg became known for writing majority opinions, but perhaps even more notoriously for her powerful dissenting opinions, which became increasingly forceful the longer she served on the Supreme Court bench. She was well aware of this: in a 2018 documentary she explained to a group of school children, ‘now is the busiest season for the court. All dissenting opinions have to be circulated. And I have a few of those still to go’ [5].

However, Justice Ginsburg also sought to unite the dissenting judges. It was her desire, whenever the liberal judges on the court were outside the majority, to group together behind a single dissenting judgment with which they all could agree. A single opposing voice would be more powerful.

1996 — United States v. Virginia, 518 US 515 

This was the first gender-discrimination case which came before Justice Ginsburg as a Supreme Court Justice, and she took the opportunity to prepare a concise and powerfully articulated majority judgment with which six other justices agreed. 

The Virginia Military Institute (VMI) was the ‘sole single-sex school among Viginia’s public instituions of higher learning’; it operated a strict male-only admission policy. The United States successfully sued Virginia and VMI on the basis that their admissions policy violated the Equal Protection Clause of the Fourteenth Amendment on appeal in the Fourth Circuit. Virginia responded by proposing a parallel program for women which would be based at a private liberal arts school for women. The federal District Court in Virginia found that this parallel program was ‘substantively comparable’. This decision was appealed to the Fourth Circuit Court of Appeals which found the education available at the two institutions to be ‘sufficiently comparable’, despite accepting that the historical benefit and prestige of VMI could not be found in a degree from the parallel women’s institution.

But the appeal to the Supreme Court was successful. Ginsburg wrote:

Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.

United States v Virginia, 518 US 515, at 516.

Importantly, Ginsburg wrote that the Fourth Circuit Court of Appeals erred in applying a standard of ‘substantively comparable’ review, affirming that ‘all gender based classifications today’ must be reviewed with ‘heightened scrutiny’ (at 518 in the judgment). This solidified the line of jurisprudence Justice Ginsburg first sought as a litigator.

2007 — Ledbetter v. Goodyear Tire & Rubber Co, 550 US 618

This case is perhaps the most famous of Ginsburg’s dissenting opinions. 

Lilly Ledbetter worked at the Goodyear Tire and Rubber Company in Alabama from 1979-1998. She was one of the few women in the position of area manager. She came to be aware that male area managers were being paid substantially more than she received. Indeed, the lowest paid male area manager was paid over $6000 more than Ledbetter’s yearly salary. Ledbetter launched discrimination charges before the Equality Opportunity Commision in 1998. However, claims under Title VII of the Civil Rights Act 1964 over race or gender pay discrimination became time barred just 180 days after the employer’s decision — and the claim was deemed to be out of time. 

On appeal the Supreme Court was invited to apply a ‘paycheck accrual rule’: it was argued that each new paycheck, even if not accompanied by discriminatory intent, triggered a new limitation period, allowing the employee to challenge any prior discriminatory conduct which impacted upon that paycheck. However, the majority of the Supreme Court disagreed. Justice Alito delivered the majority opinion, in which he relied upon previous precedent to conclude that the 180 day period applies to any discrete act of discrimination, including discrimination in ‘termination, failure to promote, denial of transfer, [and] refusal to hire’ (Ledbetter v Goodyear Tire & Rubber Co, 550 US 618 (2007), at 618). 

Ginsburg wrote: 

Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Ledbetter v Goodyear Tire & Rubber Co, 550 US 618 (2007), at 645.

Ginsburg concluded that ‘Once again, the ball is in Congress’ court (judgment at 661). As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII’.

Congress did indeed take action.  The Lilly Ledbetter Fair Pay Act of 2009 was the first Bill signed into law by President Barack Obama. This Act amended Title VII and brought into law the ‘paycheck accrual rule’.

2013 – Shelby County v. Holder, 570 US 529
This was a controversial case which has been sharply criticised for its effect on voting rights.

The Voting Rights Act of 1965, part of the landmark civil rights programme of the Lyndon Johnson administration in the wake of the assassination of President Kennedy, required certain jurisdictions with a history of discrimination, such as Alabama, Texas and Arizona, to undergo federal review before enacting any changes to voting procedure. This required clearance from the Attorney General or a panel in Washington in order to make any changes to voting procedure. This is referred to by the Act as ‘preclearance’. This law was intended to protect voting rights, particularly for black people and other ethnic minorities. 

However, the representatives of Shelby County in Alabama argued that it was a violation of the Constitution for voting protocol to be set by Congress. Chief Justice John Roberts handed down a five-to-four majority opinion, stating that Section 4(b) of the Act violated the equal sovereignty of the states, and declared that the instances of historic discrimination relied upon bear ‘no logical relation to the present day’ (Shelby County v. Holder, 570 US 529 (2013), at 550).

Justice Ginsburg wrote a dissenting opinion with which the three other justices concurred, stating that:

[…] the Court strikes Section 4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. […] Volumes of evidence supported Congress’ de-termination that the prospect of retrogression was real. 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.

Since this case, several states have enacted legislation making it more difficult for black and other minority ethnic groups to vote.

2020 — Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 US ___

This case was one of Justice Ginsburg’s last dissenting judgments. It centred on gender discrimination in relation to contraception.

The Patient Protection and Affordable Care Act of 2010 (‘the ACA’) included a mandate requiring employers to offer health plans including contraceptive coverage. The Act created an exclusion for religious non-profit organisations, such as churches and religious schools. Numerous legal conflicts between the ACA and the Religious Freedom Restoration Act of 1993 (RFRA) followed and a complex chain of litigation ensued. In May 2017, when President Trump came into office, he enacted an Executive Order ‘Promoting Free Speech and Religious Liberty’, which led the United States Department of Health and Human Resources (HHS) to issue interim rules allowing employers with religious or moral objections to be exempted from the mandate. It was from these interim rules that the present case stemmed.

In July 2020, the Supreme Court issued judgment. Justice Clarence Thomas delivered the seven-to-two majority decision, which upheld the HHS’s interim rules: ‘We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption’ (Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, 591 US ___ (2020), at 26).

Justice Ginsburg’s dissenting opinion, joined by Justice Sonia Sotomayor, stated that:

Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. […] Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves […] The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 […] condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment.

Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, 591 US ___ (2020), at p. 1 of the dissenting opinion

Less than a month after submitting her dissent in Little Sisters of the Poor, Ginsburg publicly revealed that she was receiving chemotherapy to treat a recurrence of cancer. Her death on 18 September 2020 precipitated a global outpouring of gratitude and admiration for her commitment to equality. Occurring just 45 days before the US Presidential Election, Justice Ginsburg’s death has also sparked a political battle over who will nominate her replacement. Elsewhere, the Blog has discussed the composition of the US Supreme Court and the battles over previous judicial nominees — the nomination of a replacement to this justice has already aroused huge controversy.

However, in a year when the fight for equality has sparked protests globally, lawyers and activists alike would do well to remember her enduring message: Real change, enduring change, happens one step at a time.

Ruby Peacock is studying for an LLM, having completed the Bar Professional Training Course earlier this year. She is grateful to Sapan Maini-Thompson for commenting on an earlier draft of this article.

[1] John, P. Murphy, Jr., ‘The Reed Case: The Seed for Equal Protection from Sex-Discrimination, or Polite Judicial Hedging?’ [Spring, 1972] Aaron Law Review Vol. 5:2 251, 252.

[2] ‘RBG’. 2018. [film] Directed by B. West and J. Cohen. United States: Magnolia Pictures, at 1:03:05.

[3] Ibid., at 1:03:19.

[4] Ibid, at 39:28.

[5] Ibid., at 1:34:59.

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