Remembering the Life of Ruth Bader Ginsburg by Amanda Teske

Amanda Teske is a 3L at Mitchell Hamline and the Managing Editor of the Journal of Public Policy and Practice Volume 42.

The loss of legal legend Ruth Bader Ginsburg greatly impacted the world earlier this fall. She passed away on September 17, 2020 at the age of 87 from complications from metastatic cancer of the pancreas.  A statement released from her family said she passed in her Washington, D.C. home surrounded by family.[1]  Ginsburg became a legal, cultural, and feminist icon throughout her work towards gender equality and in her tenure as the second woman to serve on the Supreme Court.  Ginsburg was born in Brooklyn, New York in 1933 as Joan Ruth Bader.[2] Even at a young age, Ginsburg was drawn to academics. Her mother encouraged her to excel in her studies – a concept not most young women in her time were encouraged to do.[3]  “My mother told me two things constantly,” recalled Ginsburg.[4]  “One was to be a lady, and the other was to be independent.”[5]  Sadly, Ginsburg’s mother was diagnosed with cancer and died the day before her graduation from James Madison High School.[6]  Her academic success continued in her studies at Cornell University, where she graduated at the top of her class in 1954.[7]  It was at this institution that Ginsburg met her husband Martin (“Marty”) Ginsburg.[8]  They married the same year they both graduated from Cornell.[9]  “What made Marty so overwhelmingly attractive to me,” Ginsburg remembered, “was that he cared that I had a brain.”[10]  The Ginsburg’s had their first child in 1955, and shortly thereafter the two enrolled at Harvard Law School.[11]

At Harvard Law, on top of raising her first child, Ginsburg was tasked with caring for her sick husband who had been diagnosed with testicular cancer during her first year of law school.  This “left Ruth with a 3-year-old child, a fairly sick husband, the law review, classes to attend and feeding me,” Marty Ginsburg stated in a 1993 interview with NPR.[12]  In addition to keeping up with her studies, Ginsburg also took notes for her husband and made sure he was up to date in school.  Ginsburg was at the top of her class, and was one of only nine women in her five hundred-person law school class.[13]  She was also the first woman on the Harvard Law Review.[14]  In a story “that’s become part of Ginsburg’s legend,” Harvard’s then-dean asked the nine women at a dinner party how they justified taking a place that should have gone to a man.[15]  There were other instances of gender inequality similar to this that Ginsburg endured at Harvard.  At one of her 1993 Senate confirmation hearings, she recounted a time when she was a student at Harvard Law and was turned away from the Law library because at the time, it did not allow women inside.[16]  Before her third year at Harvard began, she transferred to Columbia Law School to be closer to her husband, who had just graduated and had accepted a position at a law firm in New York City.[17]  There, she graduated first in her class in 1959.[18]  She also served on the law review at Columbia Law School.

Despite her excellent academic record, Ginsburg found it extremely hard to find work after graduation.  She, like many other working women at the time, faced gender discrimination in the workplace.  She had difficulties until a favorite Columbia law professor “refused to recommend any other graduates before U.S. District Judge Edmund L. Palmieri hired Ginsburg as a clerk.”[19]  She was given the job, and clerked for him for two years rather than the normal one-year clerkship.[20]  After clerking, she was offered positions but always for less pay than her male counterparts.

In 1963, she accepted a position as a professor at Rutgers University.[21]  She held this position until 1972, when she took a position to teach at Columbia.  She became the first female professor at Columbia to earn tenure.[22]  It was also during this time period that Ginsburg directed the Women’s Rights Project of the American Civil Liberties Union.  The ACLU Women’s Rights Project worked to empower poor women, women of color and immigrant women who had been subjected to gender bias through litigation, community outreach, advocacy, and public education.[23]  In this position, she “led the fight against gender discrimination” and successfully argued various landmark cases before the U.S. Supreme Court.[24]

In Frontiero v. Richardson[25], a woman in the U.S. Air Force applied for benefits for her dependent husband.  The relevant statutes provided “that spouses of male members of the uniformed services are dependents…but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their support”[26]  Her application was denied, and she and her husband brought suit.  Ginsburg used the statute at issue to show that gender-discrimination hurt men as well as women.  “Why,” she asked during oral arguments, “did the framers of the Fourteenth Amendment regard racial discrimination as odious?  Because a person’s skin color bears no necessary relationship to ability.  Similarly…a person’s sex bears no necessary relationship to ability.”[27]  Ginsburg concluded her oral argument with a quote from notable abolitionist Sara Grimke who, Ginsburg noted, “spoke not elegantly, but with unmistakable clarity.”  “She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”[28]  The Supreme Court held that the federal law requiring different qualification for criteria for male and female military spousal dependency unconstitutionally discriminated against women and thereby violated the Fifth Amendment’s Due Process Clause.[29]  Ginsburg co-counseled with Brenda Feigen, who stated “[she had] never heard an oral argument as unbelievably cogent as [Ginsburg’s].[30]  She “spoke from memory, citing cases and speaking about women’s history without ever turning to her notes or checking any citations.”  Feigen recounts that during Ginsburg’s argument, “not a single Justice asked a single question; [she thinks] they were mesmerized by her.”[31]  Ginsburg remembered the experience a bit differently. She “was terribly nervous” and “didn’t eat lunch for fear that [she] might throw up.”[32]  But, “two minutes into [her] argument, the fear dissolved” because she realized “that here before [her] were the nine leading jurists of America, a captive audience.”[33]  From that realization, she “felt a surge of power that carried [her] through.”[34]

In 1975, Ginsburg successfully argued Weinburg v. Wiesenfeld[35], a case regarding a provision in the Social Security Act that denied widowed fathers benefits that were awarded to widowed mothers.  Ginsburg argued that “the classification discriminated against working women, whose social security taxes garnered fewer family benefits than the taxes paid for working men.”[36]  Ginsburg also argued that this law discriminated against men and denied them the same opportunity as women to care for their children.[37]  The Supreme Court ruled unanimously in Ginsburg’s favor.  The opinion delivered by Justice William J. Brennan, Jr. stated that “the purpose of the social security benefits for the surviving spouse and children is to enable the surviving spouse to properly care for the children, regardless of the gender of the parent.  Gender-based discrimination regarding these benefits is therefore both illogical and counter-productive.”[38]

Ginsburg used strategy in order to “persuade male, establishment-oriented judges” by choosing male plaintiffs because this demonstrated that gender discrimination against women can harm men.[39]  She explained in an NPR interview “the legal theory that she eventually sold to the Supreme Court.”[40]  “The words of the Fourteenth Amendment’s equal protection clause – ‘nor shall any state deny to any person the equal protection of the laws.’”[41]  The phrase “‘any person’ covers women as well as men. And the Supreme Court woke up to that reality.”[42]

Staff at the ACLU were made up of many women Ginsburg taught or worked with at Columbia.  Margaret Moses, who came to work at the ACLU’s Women’s Rights Project as an attorney in 1978, taught a gender discrimination class at Columbia with Ginsburg.  For the last class in the fall of 1979, Moses and Ginsburg’s husbands cooked dinner for the class while the two women taught the class.  “It was a nice way to end a gender discrimination seminar.”  Moses reminisced.[43]  Isabella Katz Pinzler, who worked at the ACLU’s Women’s Rights Project from 1978-1994, remembers being intimidated by Ginsburg at first.  Apparently, staff would hand Ginsburg briefs labeled “rough draft” because though it was thoroughly edited, it would be returned to them with “a sea of red.”[44]  Jill Goodman, another staff member who worked with Ginsburg described her as “a different species.”[45]  She taught them to write “crisp sentences” and to get to the heart of a matter.[46]  She had “an aura about her, of intelligence and care – care about the law, and the craft of lawyering, and the trajectory of the law.”[47]

In 1980, Ginsburg was appointed as a Judge of the United States Court of Appeals for the District of Columbia Circuit, ending her tenure as an ACLU litigator.[48]  She left behind an organization that continues to fiercely fight for gender equality to this day.  Thirteen years later, President Bill Clinton nominated her as an Associate Justice of the Supreme Court.  She took her seat August 10, 1993, and was the second woman appointed to the position.[49]  Though Ginsburg was not first on President Clinton’s list of nominees, Marty was “lobbying hard for his wife” in the background.[50]  She was invited to a meeting with President Clinton, who “fell for her – hook, line, and sinker.”[51]  The Senate did as well, and confirmed her by a vote 96-3.[52]  The cautionary phrase “never judge a book by its cover” held true for Ginsburg.  Though she looked “tiny and frail” in stature and wore large glasses, she was a force to be reckoned with.[53]  After her appointment to the bench, she drew a “cult-like following among young people” and has been nicknamed The Notorious R.B.G. – a play on the American rapper The Notorious B.I.G.[54]

In 1996, only three years on the bench, Ginsburg wrote the majority opinion in United States v. Virginia[55], a case challenging the all-male admissions policy at the Virginia Military Institute.[56]  Ginsburg wrote that “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”[57]  The admissions policy at the Virginia Military Institute was thereby changed – and the school continues to teach both men and women today.

The court’s changing dynamic forced Ginsburg to “dissent more often and more assertively”.[58]  She was nicknamed “The Great Dissenter” for her growing number of scathing dissents.  The court “veered to the right” after Justice Sandra Day O’Connor retired.[59]  In Ledbetter v. Goodyear[60], Ginsburg called on Congress in her dissent to enact legislation that would “override a court decision that drastically limited back pay available for victims of employment discrimination.”[61]  The outcome was the Lilly Ledbetter Fair Pay Act of 2009, which was the first bill passed when President Barack Obama took office.[62]  A copy of the bill would be framed in Ginsburg’s chambers until her death in 2020, and in her eyes, deemed to be one of her proudest achievements.[63] She delivered a scathing dissent against an all-male, 5-4 majority, “accusing the eight male justices of being indifferent to the gender pay gap.”[64]

In 2013, she wrote the dissenting opinion for Shelby County v. Holder[65], writing that Congress has power to enforce the Constitution’s amendments.[66]  This power, she argued, authorized a provision of the Voting Rights Act of 1965 that required states with a history of racial discrimination in voting to get federal approval (or preclearance) before making changes to voting rules.[67]  Ginsburg famously stated that “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.”[68]

Ginsburg once wrote in a 2016 opinion piece in The New York Times that “When a justice is of the firm view that the majority got it wrong, she is free to say so in dissent.”[69]  In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby[70] that certain for-profit companies cannot be required by the government to pay for specific types of contraceptives, such as methods of birth control for its employees.[71]  Ginsburg wrote in her dissent that the court “ha[d] ventured into a minefield,”[72] and that those employees who do not share their employer’s Christian values will be disadvantaged.[73]  Throughout her tenure on the Supreme Court, she became a voice for progressive causes again and again.[74]

Though Ginsburg leaned left, she found an unlikely friendship between herself and conservative icon Antonin Scalia.[75]  They both shared love for the law, teaching, travel, music, and the opera.[76]  The two appeared together as extras in the Washington National Opera’s opening night production of Ariadne auf Naxos.[77]  The two even became subjects of their own comedic opera inspired by their legal opinions, named “Scalia/Ginsburg.”[78]  “It opens with Scalia’s rage aria,” which is an operatic aria expressing the rage of the character performing it, Ginsburg recounted.[79]  “He sings, ‘The justices are blind, how can they possibly spout this? The Constitution says absolutely nothing about this!” to which Ginsburg “responded that the Constitution, like society, ‘can evolve.’”[80]  The two also overlapped positions at the U.S. Court of Appeals for the District of Columbia Circuit.  “From our years together at the D.C. Circuit, we were best buddies,” Ginsburg stated following Scalia’s death in 2016.[81]

Ginsburg’s passion and bluntness has landed her in deep water.  During the 2016 election, Ginsburg made disparaging comments about Donald Trump, which she later apologized for.[82]  She also received criticism by some for not retiring during Obama’s presidency, so he could appoint a new justice and so it was not left in the hands of the next president.[83]  Throughout her tenure on the Supreme Court, Ginsburg continued to show the American people true grit and tenacity.  Ginsburg also kept up a very strict and impressive work out regime until her death.  She worked with the same trainer, Bryant Johnson, from 1999 until her death. At her funeral service, Johnson paid his respects by dropping in front of Ginsburg’s casket and performing three push-ups.[84]

She had several bouts of cancer throughout her life, and underwent various major surgeries and chemotherapy.[85]  She was always back on the bench shortly after to return to her duties.  In 2009, Ginsburg showed up for the State of the Union address only three weeks after major cancer surgery.  It was her husband Marty, she told NPR, who told her she could do it even when she thought she could not.[86]  In 2010, she endured one of life’s worst heartbreaks: the death of her husband.  She lost her husband of 56 years to cancer.  In an NPR interview, she recounts when she was packing up his things at the hospital to bring him home so he could pass there.  She found a note he had written to her. “My dearest Ruth,” it began, “You are the only person I have ever loved.  I have admired and loved you almost since the day we first met at Cornell. … I will not love you a jot less.”[87]  He died shortly thereafter.  The next day she was on the bench, stating “Marty would have wanted it.”

The death of legal legend Ruth Bader Ginsburg impacted many people, and left the world mourning her loss.  Ginsburg embodied admirable traits that resonated with many across the aisle.  True strength, courage, and resilience to advocate for core values and to be the voice for those who may not have one.  Ginsburg showed us continuously that displaying empathy is not a weakness, but rather a strength that lives within each person.  Equality to all is a human right, not a privilege, and despite differing opinions in ideas with others, meaningful friendships can be found.  Though there is still work to be done, Ginsburg ignited a movement towards equality that continues to burn brightly today.