In life and in death, Ruth Bader Ginsburg epitomized the ideals of the feminist movement: power, respect, freedom and equality. She crafted powerful dissents against conservative judicial rulings and never apologized when fighting for female emancipation. Branded as the ‘Thurgood Marshall of Women’s Rights;’ there have been few Americans who have so positively impacted the case of women’s rights under the law.
However, she wasn’t an unbridled revolutionary. Unlike her less incrementally minded counterpart Gloria Steinem, RBG had a quiet confidence, relying on the belief that long-lasting change comes from slow, progressive developments at the source: the law. It was Bader-Ginsburg’s cunning litigation strategy, razor-sharp opinions and appropriately timed vocal dissents which, used in combination, progressed the cause for gender equality.
Therefore, only by looking through a legal lens at the life and legacy of Ruth Bader Ginsburg, can we fully appreciate what she did for the status of women.
Adapting her arguments to the zeitgeist
At a time when men dominated the courtroom, RBG recognized that she couldn’t, nor did she want to, adopt an antagonistic approach in framing her arguments. Rather than bringing these cases to the court as a “women’s issue”, RBG based her arguments around men. In Frontiero v. Richardson (1973), RBG represented the husband of a female Air Force Officer who was refused military benefits due to the fallacious assumption that women couldn’t be the primary economic providers for their families, convincing the court by an 8 – 1 margin. Later, in Weinberger v. Weisenfeld (1975), she argued on behalf of a man who was denied Social Security survivors’ benefits, which resulted in eight of the nine Supreme Court justices voting in her favor. By bringing these cases before the court on behalf of men, Ruth Bader Ginsburg prevailed upon an all-male panel that gender discrimination doesn’t only affect women but hurts all of society.
An incremental approach
Many attribute Bader-Ginsburg’s successful advocacy to her gradual, considered approach. Out of the six cases argued in front of the Supreme Court, she won five – a large majority. However, each case was not a giant leap, but a tiny, incremental path-breaking case which forever changed forever how the Constitution viewed women and gender-based discrimination. RBG believed it is ‘Better to go step by step and have a series of decisions rather than have one decision that made every law of every state, even the most liberal, unconstitutional.’ By being an incrementalist, in the truest sense of the word, she constructed powerful legal precedents for future lawyers to cite when furthering the movement for equality.
RBG’s commitment to incrementalism is, paradoxically, evidenced in her controversial opinion of the landmark ruling in Roe v. Wade (1973). She was critical about this decision, not because she disagrees with the woman’s right to choose, but because “it ventured too far in the change it ordered.” The justices based their decision on the concept of personal liberty arising from the 14th Amendment’s due process guarantee. To Bader-Ginsburg, this strayed too far from the facts of the case text, abandoning the incremental approach for a drastic legislative overturn. Many legal scholars attribute this slow, considered approach to the law as the foundational reason the rights of women progressed so far under RBG. Further, perhaps it was the lack of incrementalism in Roe v. Wade that we see pushback 40 years later.
Raising her voice in line with her position
After her appointment to the Supreme Court in June 1993, RBG began her transition from an incrementalist to a “notorious” pioneer. Finally achieving the greatest platform possible to impact American democracy, it was here that her fight for equality began to accelerate.
The landmark opinion penned by RBG, United States v. Virginia (1996), best encapsulates her campaign for equal treatment under the law. In this case, the US filed against Virginia Military Institute, the country’s last remaining all-male, public undergraduate college which excluded women from admission merely on the basis of sex. Whereas Virginia argued that women were not properly suited for VMI’s rigorous training, the US put forward the argument that their gender-exclusive admissions violated the Equal Protection Clause of the 14th Amendment. The court sided with the US, with Ginsburg writing the majority opinion, emphasizing that gender equality is a constitutional right.
“[G]eneralizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunities to women whose talent and capacity place them outside the average description.”
Making her dissent heard
What contributed most to RBG’s ‘notoriety’ was not her majority opinions, but her fierce dissents. In both oral and written argument, RBG voiced her disagreements with her fellow Justices with passion and precision. In Ledbetter v. Goodyear & Rubber Company (2007), an employment discrimination case, SCOTUS rejected a pay discrimination case on a technicality that the discrimination occurred incrementally over a period of time longer than the ‘180-day limit’ of Title VII of the Civil Rights Act of 1964. Ginsburg wrote an impassioned dissent and read it from the bench, a rare practice. She called out her colleagues:
‘In our view, the Court does not comprehend, or is it indifferent to, the insidious way in which women can be victims of pay discrimination.’
Her outspoken dissent inspired members of the Democratic party to create the ‘Lilly Ledbetter Fair Pay Act’ which revised the 180-day limitation for pay discrimination, and in January 2009, Congress passed and President Obama signed the act into law.
Again, in Shelby County v. Holder (2013), a decision that undermined the Voting Rights Act of 1965, RBG stood as a voice for the new generation. She claimed she wrote dissents not for the present, but for the future, reminding us that civil rights law is a work in progress rather than a chapter that should be closed.
While it is a tragedy to have lost one of the nation’s fiercest fighters for equality, we should look to her dissenting opinions in the optimism that future generations will realize her hope for the future of America: no discrimination on the basis of sex.
Many of Ginsburg’s rulings are emblematic of the positive shift we have seen in this era. But, in the fights she thought she won unequivocally, we are beginning to see backsliding – in reproductive freedoms, racial justice and voting rights. As we inch away from the big wins she had registered early in her career, RBG and her legacy are a symbol of what we have gained and what we have to lose.
Justice Ginsburg spoke to generations of mothers, daughters and society at large about our fight to make the world a better place. So, rather than fixating on the void that her death leaves with the Supreme Court, we should look to the future. With a court stacked adverse to the sort of reforms Ginsburg was able to accomplish in her lifetime, we should take cues from her tenacity in the continued fight for gender equality. Her legacy, in and out of the courtroom, emphasizes why it is necessary – now more than ever – to fight for women’s rights.
RBG was relentless: she has shown us how the cumulative effect of many small steps over a 60-year career can dwarf the impact of short-term setbacks. RBG was bold: she spoke up for what she believed in, irrespective of the opinions of her teachers, leaders and colleagues. Let her serve as an example for us all.
She steadfastly fought for the rights that we, both women and men, now enjoy, so we have a duty to continue her fight for our sons and daughters.