23 Sep The RBG Legacy: Equality and Inspiration
[Melanie O’Brien is senior lecturer in international law at the University of Western Australia. She is mildly obsessed with RBG, because of which she is regularly asked to talk about RBG, such as at the International Women’s Day Perth public screening of On the Basis of Sex in 2019.]
After her death on 18 September 2020, the whole world is mourning the passing of Ruth Bader Ginsburg (aka ‘RBG’ or ‘Notorious RBG’), a Justice of the Supreme Court of the United States. The world is mourning her passing because she was a force of nature. Ginsburg wanted to be remembered as “someone who used whatever talent she had to do her work to the very best of her ability. And to help repair tears in her society, to make things a little better through the use of whatever ability she has.” She has certainly succeeded, having a significant impact on law in the United States, and inspiring girls and women everywhere.
RBG covered the gamut of the legal profession: she was a law researcher, a law professor, a lawyer and a judge. She achieved all of these roles in a time when women were not welcome in the law. When Ruth Ginsburg studied law at Harvard, she was one of nine women in a class of about 500. These women had to prove themselves above and beyond the men in the class, justifying to the Dean why they had taken a place that could have gone to a man. RBG graduated top of her class, but no law firm would hire her- because she was a woman – and worse, a mother. She only ended up with a clerkship because one of her professors threatened Judge Palmieri that he would no longer send any Columbia law students to Palmieri for future clerkships if did not hire her! (Ginsburg had transferred to Columbia University.) Of course, Ginsburg was an outstanding clerk, motivating Palmieri to take on another female clerk the following year.
RBG battled the obstacles in front of her to achieve in every profession she worked in. As a researcher, she co-authored the first book in English on Swedish civil law. As a professor at Rutgers University, she created a course on gender equality and the law, and co-authored the first textbook on this topic. As a professor, she also fought for equal pay for female academics at her university, who were few and far between in the 1970s – especially at law schools. The university noted that men had families to support. So, Ginsburg pointed out, did she.
As a lawyer, she established the American Civil Liberties Union (ACLU) Women’s Rights Project (WRP). She wrote the brief for Reed v Reed, 404 U.S. 71 (1971), and won the case, in which the Supreme Court held that the Fourteenth Amendment prevented differential treatment between men and women. She went on to write briefs and/or make arguments in 34 cases for the ACLU WRP. Out of the six cases she argued before the Supreme Court, she won five. Her notable cases include Frontiero v. Richardson, 411 U.S. 677 (1973) (on the equality of military benefits) and Weinberger v Weisenfeld, 420 U.S. 636 (1975) (on gender discrimination in social security benefits) (the latter was RBG’s favourite case). Ginsburg’s cases sometimes argued about gender discrimination using a male client, including Weinberger v Weisenfeld, in which she represented a widower who could not access social security benefits to raise his child after the death of his wife.
An important part of RBG’s arguments about discrimination was that it is a scourge on both genders, and that equality benefits both women and men. Even RBG’s briefs in cases that did not make it to the Supreme Court have made an impact, such as the one in Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1971), in which Ginsburg argued that pregnancy discrimination is sex discrimination. She was also always engaged with the issue of reproductive rights for women, and is known for being critical of Roe v. Wade, 410 U.S. 113 (1973), arguing that the famous abortion case should have been about sex equality and not privacy so as to ground the issue in a broader legal concern that would leave the legality of abortion less open to being overturned. Her dissent in the abortion-related case of Gonzales v. Carhart, 550 U.S. 124 (2007), rejected the conflation of women with mothers, arguing instead for women’s personhood, autonomy and individual dignity, under which women owned their own destiny.
Ginsburg became a judge in 1980 on the DC Circuit. In 1993, she was nominated by President Bill Clinton to the Supreme Court. He initially had a male candidate in mind, but after being convinced to meet with RBG, the nomination was a no-brainer. As a Supreme Court Justice, RBG contributed significantly to gender equality through her judgements and her dissents. In United States v. Virginia, 518 U.S. 515 (1996), Justice Ginsburg wrote the majority opinion, finding that the Virginia Military Institute’s (VMI) exclusion of women from its educational opportunities denied equal protection to women. Twenty years after VMI began admitting women, there were 63 female cadets in the 2017 intake. In one of her famous dissents, in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), Justice Ginsburg pointed out the problem with the existing time limit on women’s ability to make a claim against unequal pay. While the claimant, Lily Ledbetter, was not successful in her claim, Ginsburg’s dissent led to President Barack Obama’s first act in office: passing the Lily Ledbetter Fair Pay Act (2009), under which Americans could effectively challenge unequal pay.
Ginsburg’s work in the Supreme Court of course reached beyond issues of gender equality. Other human rights issues were key for RBG, such as voter rights. For example, her dissent in Bush v. Gore, 531 U.S. 98 (2000), was so popular she was publicly applauded when attending a concert. In that dissent, she argued that the Constitution requires every vote be counted, and thus there should have been a recount of the Florida votes in the 2000 election. She was also an advocate of LGBTQI+ rights, officiating weddings soon after the ruling that legalised marriage equality in the USA (a ruling she had supported), Obergefell v. Hodges, 576 U.S. 644 (2015). There was also her majority opinion in Olmstead v. L.C., 527 U.S. 581 (1999), which held that people with disabilities have the right to live in their own communities rather than institutions, with undue institutionalisation amounting to disability discrimination.
Ginsburg’s experience as a legal researcher and law professor took her to explore other jurisdictions, such as Sweden, China, and Taiwan. Ginsburg was open to looking beyond the US to the laws of other states, and criticised US lawyers for not using foreign or international legal developments in their arguments before the Supreme Court because this lacuna minimised the influence of international and foreign law on Supreme Court decisions. RBG considered that evaluation of foreign and international law was essential to help move US law forward. She was particularly engaged with foreign constitutional law, seeing comparative dialogue as essential because it was “sharing with and learning from others”. As a lawyer, Ginsburg’s briefs referred to UN Conventions and foreign judicial decisions, such as in her Reed v Reed brief, in which she referred to a report to the UN on the status of women in Sweden and referenced two cases from the West German Constitutional Court. She referred to the German cases specifically to ask: “If this is where the West German Constitutional Court is today, how far behind can the U.S. Supreme Court be?”.
Ginsburg acknowledged that international law was part of US law, and as a Supreme Court Justice incorporated international law into her opinions. In the cases Gratz v. Bollinger, 539 US 244 (2003) and Grutter v. Bollinger, 539 US 30 (2003), in separate opinions Justice Ginsburg referred to the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of all forms of Discrimination against Women – even though the US has not ratified the latter. Ginsburg drew on these Conventions’ distinction between policies of exclusion and permissible policies of temporary special measures seeking to achieve equality (referred to in these cases as ‘affirmative action’).
Ginsburg’s reverence to foreign and international law was not necessarily the norm, as she pointed out that members of Congress and other judges did not support this comparative, incorporative perspective. Nonetheless, for Ginsburg, this engagement was essential, and even though she acknowledged that foreign law was never binding in the US, she strongly defended the use of foreign and international law.
Justice Ginsburg was also part of the Court that made decisions related to Guantanamo Bay detainees: Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004); and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). These cases covered petitions for habeas corpus with regard to detention at Guantanamo Bay; the legality of the detention; and the legality of the military commissions set up to try these detainees. In Hamdi v. Rumsfeld, Ginsburg was part of a plurality judgement that did not reach the constitutional question, but concluded that the President had no authority to detain people without formal charges and trial. These cases are relevant to international humanitarian law and human rights law. For example, Hamdan v Rumsfeld specifically engaged IHL, concluding that the military commission “lacks power to proceed because its structure and procedures violate both the [Uniform Code of Military Justice] and the Geneva Conventions”. Ginsburg was one of four Justices who specifically found that “[t]he offense [the charge] alleges is not triable by law-of-war military commission”, because “the crime charged here is not a recognized violation of the law of war”.
It is impossible in a blog post to mention all of the cases RBG had an impact on; but there are myriad articles and books written about these. As a lawyer and a Supreme Court Justice, RBG specifically contributed to changing the law for the better. Her actions resulted in the reduction of discrimination on the basis of gender, and other grounds, throughout the United States. Her work affected every woman in the country, expanding their rights to education, to make claims against workplace pay discrimination, to access military benefits, and beyond. Every case that was about one person became so much more. RBG said that there would be enough women on the Supreme Court “when there are nine”, noting that nobody was ever shocked that for most of the Supreme Court’s existence, there have been nine male judges. Her engagement with and use of foreign and international law demonstrate an openness of legal perspective that benefited her work as a professor, lawyer and judge, and confirms that looking beyond one’s borders makes one a better jurist. People around the world admire RBG – themselves practicing this open perspective, to learn from her as a foreign, domestic judge – learning how to be a better professor, lawyer or judge.
In international law, we often think about whether we are making a difference. We all know that one person cannot change the world. RBG was, for all intents and purposes, a domestic human rights lawyer and judge. As RBG demonstrates, one person can make a huge difference, to myriad people. Because not only has RBG directly brought greater equality to American women, she has also inspired girls and women around the world. To be law professors, to be lawyers, to be judges. To speak up for equality. To strive to use their position to make changes for the better. RBG rose to the highest legal role in the US despite the immense challenges blocking her way based on her gender, her role as a mother, and at times even her Judaism. As a graduate, no law firm would hire her, and yet she ultimately became the second woman to serve on the US Supreme Court. RBG worked from the inside, to change the system, paralleling the work of other feminists working from the outside, such as Gloria Steinem: an essential balance of activism for achieving change. RBG espoused a view of equality where women and men have equal access to opportunity, often quoting Sarah Grimke: “I ask no favor for my sex. All I ask of our brethren is that they will take their feet off our necks”.
“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”— Ahmed Ali (@MrAhmednurAli) September 18, 2020
— Ruth Bader Ginsburg
Supreme Court Justice Ruth Bader Ginsburg was a modern feminist icon. pic.twitter.com/GHOtZZ4u2X
A call that women continue to make worldwide.