Ruth Bader Ginsburg was
a pioneering lawyer, a libertarian advocate for equality
and especially for women’s rights. She was only
the second woman ever to serve on the Supreme Court of
the United States (SCOTUS) and for several years she was
its only woman member – imagine, eight burly men and
little her. On 18 September, she died at her home
in Washington from complications of metastatic
pancreatic cancer. She was 87.
RBG - the woman
Though barely five feet tall and weighing about 45 kg, she was a toughie. She exercised regularly with a personal trainer. She beat colon cancer in 1999 and early-stage pancreatic cancer in 2009. In 2014, she had a stent fitted to clear a blocked artery. In December 2018, two small tumours were found on one of her lungs. A medical scan in February 2020 revealed growths in her liver. In July 2020, she released a statement saying that her liver cancer had returned and she was undergoing chemotherapy. Would she retire early? No way. She planned to stay ‘as long as I can do the job full steam.’
She was as precise in her appearance as in her approach to her work. She wore her dark hair pulled back and favoured finely-tailored suits by Giorgio Armani, interspersed occasionally with flamboyantly patterned jackets. On the court bench she was an active and persistent questioner, but in social settings she tended to say little letting her more outgoing husband speak for her. Yet, into her ninth decade she remained a most unlikely cultural icon. She became known as the Notorious R.B.G., a play on the name of the Notorious B.I.G., a famous Brooklyn-born rapper. The name caught on, as did her image – her serene yet severe expression, that frilly lace collar over her black judicial robe and her eyes framed by those oversize glasses. Young women had her image tattooed on their arms and ‘You Can’t Spell Truth Without Ruth’ appeared on bumper stickers and T-shirts. Biographies of her became bestsellers, documentary films were box office hits. She was an internet sensation. Hers was a late-life rock stardom.
RBG - the early years
Joan Ruth Bader was the Brooklyn-born daughter of Ukrainian Jews. Her father, Nathan Bader, immigrated to New York with his family when he was 13. The family owned small retail stores, including a fur store and a hat shop – money was never plentiful. Her mother, Celia (née Amster), was born four months after her own family’s arrival. Ruth, as she was formally known, though nicknamed Kiki, was born on 15 March 1933. She grew up in Flatbush, a low-income district of New York. She was essentially an only child – an older sister, Marilyn, died of meningitis at the age of 6 when Ruth was 14 months old. Her mother died of cancer, aged 47, on the day before her daughter's graduation from James Madison High School, where Ruth had once been a cheerleader and baton twirler and the recipient of numerous scholastic medals and awards.
In 1950, Ruth Bader arrived at Cornell University on a scholarship. During her first year, she met a second-year student, Martin (aka Marty) Ginsburg. For the 17-year-old Ruth it was love at first sight. ‘He was the only boy I ever met who cared that I had a brain’, she frequently recalled in later years. By her third year, they were engaged, and they were married after her graduation in 1954. Theirs was a lifelong romantic and intellectual partnership of opposites – she was reserved, choosing her words carefully, he was an ebullient raconteur.
marriage, they moved to Oklahoma where Marty Ginsburg
served for two years as an Army officer. Ruth
applied for a government job at the local Social Security
office. She was offered a position as a claims
examiner, but when she informed the personnel office that
she was pregnant with her first child, the offer was
withdrawn. Instead she accepted a lower-paid
clerk-typist job. Years later, such adverse
employment incidents and ingrained assumptions that
limited women’s opportunities were to become the focus of
Ginsburg’s life work.
RBG - the lawyer
Meanwhile, law studies took her to Harvard University. When her husband found work in New York City, she transferred to Columbia Law School. Despite coming top in her class she struggled to find employment. ‘I was Jewish, a woman and a mother,’ she explained. Eventually she found work as secretary to a federal judge in New York, but only by reassuring him that she would never wear trousers to work.
By 1963, she was a professor at Rutgers Law School. While undertaking a study of Swedish civil law at Lund University she was inspired by Scandinavian thinking on gender equality. The experience proved formative. Feminism was flourishing in Sweden, and there was nothing unusual about women combining work and family obligations. Child care was also readily available.
In addition to teaching, she began volunteering to handle discrimination cases for the New Jersey affiliate of the radical American Civil Liberties Union (ACLU). These cases included complaints by school teachers who had lost their jobs when they became pregnant. In 1972, the ACLU created a Women’s Rights Project and hired Mrs Ginsburg as its first director. It was under the auspices of this ACLU project that she developed her Supreme Court litigation strategy to persuade the justices that official discrimination on the basis of sex was a harm of Constitutional dimensions.
Ginsburg started from the premise that she needed to provide some basic education for a judicial audience that was not so much hostile as uncomprehending. She took aim at laws that were ostensibly intended to protect women – laws based on stereotyped notions of male and female abilities and needs. From 1973 to 1978, Ginsburg presented six sex discrimination cases to the SCOTUS, and she won five.
Her ideological goal was to persuade the SCOTUS that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well. It was a daunting, uphill task. Her strategy was not immediately apparent. She was selecting cases in which the victims of disparate government treatment were men. They were undemanding for the members of the SCOTUS. Why should men be treated less charitably than women? What the government owed to one sex, it surely owed to the other.
Then the ideal case came along. A widowed father was seeking social welfare to enable him to be his baby’s caregiver. He was the perfect plaintiff. His claim to benefits would automatically be received by every claiming widow, but also his claim might open the Court’s eyes to the fact that childcare was not a sex-determined role to be performed by women only. Ginsburg called it ‘sex-role pigeonholing’ and she was out to dismantle it. Hers was a laser-like strategy. According to Ginsburg, sex discrimination hurt both men and women, and both stood to be liberated by her from sex inequality.
Though an ardent liberal she often sided with the Court’s conservative members. Her somewhat anomalous role arose from her conviction that in a healthy democracy, the judiciary should work in partnership with others rather than seek to impose a last word that leaves no room for further discussion.
This was the basis for
her criticism of Roe v. Wade, the Supreme Court’s
1973 decision establishing a constitutional right to
abortion. In a speech at New York University Law
School in 1993, several months before her nomination to
the Supreme Court, she criticized the ruling as having
‘halted a political process that was moving in a reform
direction and thereby, I believe, prolonged divisiveness
and deferred stable settlement of the issue.’
While leaving no doubt about her own support for abortion rights, she said the SCOTUS should have issued a narrow rather than a sweeping ruling, one that left states with some ability to regulate abortions without prohibiting them. She declared, ‘The framers of the Constitution allowed to rest in the Court’s hands large authority to rule on the Constitution’s meaning’ but ‘armed the Court with no swords to carry out its pronouncements.’ She added that the Court had to be wary of ‘taking giant strides and thereby risking a backlash too forceful to contain.’
Yet on abortion she declared that ‘the government has no business making that choice for a woman.’ However, her views were often more nuanced than the headlines would suggest. For example, on Roe v. Wade, she was critical of the Supreme Court’s decision, delivered on the basis of privacy rather than sex discrimination, claiming that it ‘presented an incomplete justification for [the Court’s] ruling’ and stored up trouble for the future.
RBG - the SCOTUS member
In 1993, President Clinton had a seat to fill on the SCOTUS after the retirement of Justice Byron R. White. It was his first nomination to the Court and he carefully searched for the right candidate – some turned him down. Then there was Ruth Bader Ginsburg. He was aware that ‘the women were against her.’ But after a 90-minute meeting with her on 13 June, the President had made up his mind. He phoned her with the news later that night. The next day, at the announcement ceremony in the Rose Garden of the White House, Clinton said, ‘I believe that in the years ahead she will be able to be a force for consensus-building on the Supreme Court, just as she has been on the Court of Appeals.’ Judge Ginsburg replied with a tribute to her mother. She declared, ‘I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.’ It brought tears to Clinton’s eyes.
RBG - the pro-abortionist
During her nomination hearings, addressing the Senate Judiciary Committee, Judge Ginsburg said her approach to judging was neither ‘liberal’ nor ‘conservative’. She did, however, make clear that her support for the right to abortion, despite her criticism of Roe v. Wade, was unequivocal. At the time she stated, ‘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.’ Her subsequent appointment proved highly popular with the public, and she was confirmed on 3 August 1993.
When Ruth Ginsburg arrived to take her junior justice’s seat at the far end of the Supreme Court’s bench on the first Monday of October 1993, the setting was familiar to her, even if the view was different. She had previously stood on the other side of that bench, arguing cases that were to become legal landmarks.
Again, on abortion, Justice Ginsburg was consistent if not always principled. In 2020, in June Medical Services v. Russo, she voted to strike down a Louisiana pro-life law that saves the unborn from abortion and protects women’s health by requiring abortionists to have hospital admitting privileges for patient emergencies. She questioned the necessity of the law, arguing that most women who get abortions do not require medical treatment afterwards. On 29 June, the SCOTUS announced, in a 5 v. 4 decision, that the 2014 Louisiana law was unlawful.
In 2016, she joined the majority for Whole Woman's Health v. Hellerstedt, a case which struck down parts of a 2013 Texas law regulating abortion providers. In her written opinion, Ginsburg claimed that the legislation was not aimed at protecting women's health, as Texas had said, but rather to impede women's access to abortion. In 2007, she was in the minority of a 5 to 4 decision in Gonzales v. Carhart which upheld a federal law restricting partial-birth abortions – she considered that the procedure was not safe for women. In his majority opinion, Justice Kennedy said the law was justified in part to protect women from the regret they might feel after undergoing the procedure. That stance, Justice Ginsburg objected to as ‘an anti-abortion shibboleth’ – the notion that women regret their abortions – for which the Court ‘concededly has no reliable evidence.’ The majority’s ‘way of thinking,’ she wrote in her dissent, ‘reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long since been discredited.’ In 2000, in the case of Stenberg v. Carhart, she joined in the Court's majority opinion striking down Nebraska’s partial-birth abortion law.
In her stated and written judgements Ginsburg recycled that old pro-abortion argument that abortion is safer than childbirth. For instance, she made that same misleading claim in Whole Woman's Health v. Hellerstedt. First and foremost, abortion is never safer for the unborn child – its very purpose is to destroy the child’s life. Second, it is not accurate to say that abortion is safer for the woman, either. Researchers in the US have pointed out that there is insufficient data from abortion facilities to draw that conclusion. Several European studies have refuted the claim even further, concluding that more women die after abortions than childbirth. Yet Ginsburg’s ardent, yet seemingly irresponsible, pro-abortion ideology showed itself when she voted in 2020 to force the Little Sisters of the Poor to pay for abortion drugs in their healthcare insurance plan. In another context, she exposed her faulty judgement when, during the 2016 presidential campaign, she publically called Donald Trump ‘a faker’, a remark she later conceded was ‘ill-advised’.
Asked often to explain the success of her 1970’s litigation campaign, Justice Ginsburg usually offered some version of having been in the right place with the right arguments at the right time. She wrote in the Preface of a 2016 collection of her works, ‘How fortunate I was to be alive and a lawyer when, for the first time in US history, it became possible to urge, successfully, before legislatures and courts, the equal-citizenship stature of women and men as a fundamental constitutional principle.’
- the wife and mother
Her husband, Martin, became a highly-successful tax lawyer yet he happily gave up his lucrative New York law practice to move with her to Washington DC in 1980 when she was appointed to the United States Court of Appeals for the District of Columbia Circuit. Settling in Washington, he taught tax law at Georgetown University’s law school. He was also a talented cook compared with his wife who was, by her own admission, a terrible cook – her children forbade her from entering the kitchen. The Ginsburgs lived next to the John F Kennedy Center for the Performing Arts, where they frequently attended the opera and ballet. Their 56-year marriage ended with his death from testicular cancer in 2010 at the age of 78. In his final days, he left a note, handwritten on a yellow pad, for his wife to find by his bedside. It began, ‘My dearest Ruth. You are the only person I have loved in my life, setting aside, a bit, parents and kids and their kids, and I have admired and loved you almost since the day we first met at Cornell. What a treat it has been to watch you progress to the very top of the legal world!!’ Their two children, Jane, a professor at Columbia Law School, and James, a record producer of classical music and the founder of Cedille Records in Chicago, survive their parents, along with four grandchildren.
Ruth Ginsburg was a non-observant Jew. After the two days in repose at the Supreme Court building, she lay in state at the Capitol. She was the first woman and first Jew to lie in state there. On 29 September, she was buried beside her husband at the Arlington National Cemetery.