Saying goodbye to Judge Ruth Bader Ginsburg has been one of the most challenging moments of 2020 — and that’s a lot to say. A jurist, Supreme Court justice, feminist icon, symbol of several generations, and a pillar for whom we proudly call ourselves feminists today, Notorious RBG left us with a sense of sadness with no time to process.
Last Friday, the announcement of her death has been interpreted by many as a call for the metaphorical weapons of the struggle for civil rights, the survival of democracy, and a battle for gender equality with no end in sight.
RBG always remembered the importance of her mother, Celia, in her determination to make her way in a toxic male world, inheriting from her the habit of making academic training both a refuge and a trench. Born in Brooklyn in 1933, her tenacity was her trademark, even after her mother’s death at the hands of cancer when Ginsburg was 15.
Trained at Cornell, her early domestic life was a hindrance to her work. She was discriminated against for being a woman, becoming pregnant, and even being married to a man who earned “enough” to keep her from working.
In 1956, RBG enrolled at Harvard Law School, being one of nine women in a class of about 500 men. She remained at the institution until, after a dinner at which the Dean invited all the students, he asked Ginsburg why she was at Harvard “taking the place of a man.”
Once her husband took a job in New York City, RBG transferred to Columbia Law School, where her career took off without a hitch.
Ginsburg became the first woman to be in the Harvard Law Review and the Columbia Law Review, and in 1959 she earned her degree, tying for first place in her class. But it was her early work experiences that would lay the foundation for her personal crusade.
During the 1960s, she often faced obstacles in getting the job as a clerk for Supreme Court Justice Feliz Frankfurter because of her gender. Despite being the best-prepared candidate for the position and having a strong recommendation from Harvard Law School professor and dean Albert Martin Sacks, the fact of being a woman was enough to be discriminated against.
After finally securing a two-year clerkship for Judge Edmund L. Palmieri in the Southern District Court of New York as a law clerk, RBG joined academic research at the Columbia Law School Project on International Procedure. It was there that, thanks to a collaboration with Swedish attorney Anders Bruzelius, she learned first-hand about the civil procedure in Sweden and saw with her own eyes the opportunities that women were able to have in other countries, far from the United States.
During the 1970s, RBG helped found the Women’s Rights Law Reporter, the country’s first legal journal focused exclusively on women’s rights, and where she began her collection of sex discrimination cases.
By this time, women on the streets had already burned their bras, had already declared their autonomy over their bodies, but men still dominated the system, and the female gender was considered second-class.
For Ginsburg, the solution was in the courts.
Fighting for true gender equality
In 1972, she co-founded the Women’s Rights Project at the American Civil Liberties Union (ACLU), becoming its general counsel, and from where she argued six gender discrimination cases before the Supreme Court between 1973 and 1976, winning five of them.
Her strategy was not to fight unilaterally but to put into perspective how gender discrimination affected both men and women. As reported by The New York Times in 1993, Ginsburg “adopted a strategy intended to convince the Justices that laws that discriminated between men and women-even those laws that were meant to help women-were based on unfair and harmful stereotypes and were in most cases unconstitutional.”
“Her strategy was an especially ingenious one, relying on male, often married, plaintiffs,” said David Cole, a professor at Georgetown University Law School, to the Times.
He said many of the regulations or laws she opposed ostensibly helped women, giving them some extra benefit in recognition of the prevailing notion that women were generally dependent on men.
“But she set out to prove that those kinds of laws, in fact, harmed women by contributing to a stereotyped view of their role,” he said.
In the United States v. Virginia, Ginsberg wrote the majority opinion that would serve as a milestone for women’s rights and university admission policies, Fortune remembers. The case challenged a policy by the Virginia Military Institute that barred women from being admitted to the institution. Although the state of Virginia said it would create a separate educational program for women for the military institute, Ginsberg questioned its merits, writing that “Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth’s obligation to afford them genuinely equal protection.”
“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,” Ginsberg wrote.
A Conservative Position on a Liberal Right
One of the key issues in the feminist movement has been the right to abortion, a debate often legislated by men and which has left out women’s voices when it comes to having autonomy over their bodies.
RBG was frequently criticized during her 13 years on the appeals court for mediating between liberal and conservative positions on abortion.
Following the 1973 Supreme Court ruling in Roe v. Wade, Ginsburg raised her objections as “too broad,” something that would be upheld in subsequent years as the country’s anti-abortion factions exploited its legal loopholes.
Ginsburg argued that it was unwise for the Court majority to impose a “detailed outline” describing how states can regulate abortion in each trimester of a pregnancy, the Times recalled. Instead, she suggested that the Court should simply “strike down the law in question,” which allowed states like Texas to ban almost all cases.
“Suppose the Court had stopped there, declaring unconstitutional the most extreme brand of law in the nation and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject,” Ginsburg said, adding that a narrower ruling would have “served to reduce rather than to fuel controversy.”
In that case, she went on, states would have more latitude to resolve the public dispute about abortion by creating their own abortion statutes, testing the Court’s limits on how far they could go to restrict abortion.
The inextricable link between gender equality and LGBTQ+ rights
After her confirmation by the Supreme Court in 1993, RBG supported most of the decisions in favor of the LGBTQ+ community’s rights.
Alphonso David, president of the Human Rights Campaign, said in a statement Ginsburg was “a force for good — a force for bringing this country closer to delivering on its promise of equality for all.
“Her decades of work helped create many of the foundational arguments for gender equality in the United States, and her decisions from the bench demonstrated her commitment to full LGBTQ equality,” David said. “She was and will remain an inspiration to young people everywhere, a pop culture icon as the Notorious RBG and a giant in the fight for a more just nation for all. We extend our deepest condolences to her family and loved ones.”
Ginsburg joined rulings such as Romer v. Evans in 1996 that overturned Colorado’s anti-gay Amendment 2. She also joined Lawrence v. Texas in 2003, which overturned state laws criminalizing so-called “sodomy” and supported rulings promoting same-sex marriage, including Windsor v. United States in 2013, which overturned the Defense of Gay Marriage Act.
Hollingsworth v. Perry in 2013 and Obergefell v. Hodges were other clear-cut rulings that opened the way for equal marriage.
For each of these marriage rulings, the judges were split 5-4, so if Ginsburg were not on the court, the decisions might not have gone out in favor of the LGBTQ community, the Washington Blade recalls.
More recently, Ginsburg joined the decision in Bostock v. Clayton County, which found that anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal under Title VII of the Civil Rights Act. The broad ruling protects LGBTQ persons wherever there are laws against sex discrimination, including employment, housing, health care, and education.
Shannon Minter, legal director for the National Center for Lesbian Rights, said that, although former U.S. Associate Anthony Kennedy and U.S. Associate Justice Neil Gorsuch were the authors of major LGBTQ rights from the Supreme Court, Ginsburg was “the most important voice for LGBT people.”
“As a civil rights advocate, she litigated and won the groundbreaking cases that established strong constitutional protections for women,” Minter said. “As a Supreme Court justice, she authored key sex discrimination decisions that paved the way for the Court’s embrace of equality for same-sex couples in Obergefell and for LGBT workers in Bostock. She was our champion and the architect of an expansive vision of gender equality that was broad and capacious enough to include LGBT people. Without her influence and legacy, none of those landmark decisions would have been possible.”