Saturday, September 19, 2020

Ruth Bader Ginsburg: Pioneer for Gender Equality

            Ruth Bader Ginsburg paid tribute to her mother when President Bill Clinton introduced her as his nominee for the Supreme Court in 1993. Celia Bader died of cancer when her pretty daughter Ruth was about to graduate from high school at her age 17. And now, after 27 impactful years as a Supreme Court justice, Ruth too has succumbed to cancer. 

            “I pray that I may be all that she would have been,” Ginsburg said of her mother, with Clinton smiling proudly beside her, “had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”

            In her younger years, in her 40s, Ginsburg had already played the critical part in making a reality of that aspirational hope. She created, all but single-handedly, the constitutional principle that women are entitled under the law to equal rights, an intellectual revolution as significant as the still unfinished civil rights revolution for racial justice.

            Ginsburg made her mark as a gender equality pioneer and as judge and justice by determination and perseverance, a keen intellect, and fortitude in the face of adversity. Her only-in-America story took her to Cornell on a scholarship and then to Harvard and Columbia law schools. But after graduating from Columbia tied with first in her class, she found her career blocked, as she herself put it, by three marks against her: a woman, Jewish, and mother of a young child.

            In successfully litigating three cases in the Supreme Court in the 1970s, Ginsburg established the principle that the law can treat women differently from men only under limited circumstances and for some compelling reason. In the first of those cases, she overcame what seemed at the time the natural assumption that a father should be automatically favored over a mother as the executor of a deceased child’s estate.

            After her death on Friday night [Sept. 18], Clinton’s close aide Paul Begala recalled on CNN that the president introduced Ginsburg to him as “the Thurgood Marshall of the women’s movement.” In her obituary in The New York Times, the veteran Supreme Court correspondent Linda Greenhouse recalled that Ginsburg resisted the comparison by noting that she had never had to risk her life as Marshall had done in his cases in the 1940s and ‘50s.

            In introducing her, Clinton described Ginsburg as “scrupulous,” “balanced and fair,” and “too thoughtful” to be pigeonholed as conservative or liberal. She had already gained that reputation through twelve years of service on the federal appeals court for the District of Columbia Circuit. And she went on to enhance that reputation on the Supreme Court, where her opinions and her questions from the bench were always thoughtful, rigorously logical, to the point, and free of ideological rhetoric or recrimination.

            Among her majority opinions, Ginsburg most significantly fortified the gender equality principle by speaking for a 7-1 majority in striking down the all-male admissions policy at Virginia Military Institute (VMI). Ginsburg praised VMI in her majority opinion in United States v. Virginia (1996) as “an incomparable military college” and concluded that because of its excellence the school’s program must be equally available to “women seeking and fit for a VMI-quality education.”

            Other commentators have already recalled Ginsburg’s pointed dissents from decisions that cut back on women’s autonomy in reproductive choices. Dissenting for example in Gonzales v. Carhart (2007), Ginsburg complained that the majority opinion, joined by five male justices, "recalls ancient notions about women's place in society and under the Constitution—ideas that have long since been discredited."

            Among others that stand out in my mind was her dissent when the 5-4 majority in Missouri v. Jenkins (1996) cut a plan to remedy racial segregation in Kansas City schools. “Given the deep, inglorious history of segregation in Missouri,” Ginsburg wrote, “to curtail desegregation at this time and in this manner is an action at once too swift and too soon.”

            In her confirmation hearing, Ginsburg described herself as an advocate of judicial restraint. She was no judicial activist, as seen in her criticism of Roe v. Wade as going further than necessary to rule on the Texas law at issue. Instead, Ginsburg’s approach was as she described it in her confirmation hearing by quoting an admonition from Justice Cardozo. “Justice is not to be taken by storm. She is to be wooed by slow advances.”

            Her colleagues deferred to Ginsburg’s rigorous logic often by assigning her decisions that posed complex procedural issues. Thus, in what proved to be her final term, she led a slightly fractured unanimous decision in Monasky v. Taglieri (Feb. 25) that laid down guidelines for deciding child custody disputes among separated parents living in different countries.

            In her final opinion, Ginsburg complained in dissent in Little Sisters of the Poor v. Pennsylvania (July 8) of the effect on women’s health options of upholding an expansive religious exemption for employers to deny employees cost-free contraceptive coverage. “I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”

            By Jewish tradition, it was fitting that Ginsburg, the most observant of the three Jewish justices, died around sunset on Rosh Hashanah, the first day of the Jewish new year. The Jewish tradition regards someone who dies on Rosh Hashanah as a “tzaddik,” a person of great righteousness. May her memory be a blessing!

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