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23 September 2020

The legacy of Ruth Bader Ginsburg

The late Supreme Court Justice was not always progressive, but the US is unquestionably a more equal, equitable country than it would have been without her work.

By Emily Tamkin

In 1971 Ruth Bader Ginsburg filed her first brief before the Supreme Court. The case was Reed vs Reed, and the question was whether or not the Idaho Probate Code, which specified that “males must be preferred to females” in appointing administrators of estates, was constitutional. Ginsburg listed Pauli Murray, a black women’s rights activist, and Dorothy Kenyon of the American Civil Liberties Union, as the co-authors of her brief.

Both Murray and Kenyon had developed the legal theories on which Ginsburg drew in her argument. She won the case after the court unanimously decided that the Idaho Probate Code was unconstitutional. “We owed them so much,” Ginsburg later said of Murray and Kenyon, “for they kept the idea and the hope [of gender equality] alive.”

Throughout her career, Ginsburg shared credit for her legal successes with the pioneers of an older generation. This was because she believed in two worldly principles: there were those who came before her and there are those who would outlive her.

Ginsburg died on 18 September at 87 from pancreatic cancer. Her death means there is a vacant seat on the Supreme Court, which Donald Trump wants to fill before the presidential election on 3 November. If he succeeds, it will give conservatives a solid hold on five of the nine votes on the court. It could also have a lasting political effect on the fate of the US if the election is contested and it falls to the court to decide who should occupy the White House.

But amid the political furore, it is appropriate in the first instance to remember who Ginsburg was: a lifelong champion for equality and a pioneer who knew that she stood in a long tradition of pioneers, stretching backwards and forwards in time.

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Born in March 1933, Ruth Bader grew up in Brooklyn. Her father, an immigrant from the Russian empire, was a shopkeeper. Her mother died of cancer the day before her high school graduation. “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,” Ginsburg said on the day Bill Clinton announced her nomination to the Supreme Court in 1993.

She met her future husband Martin Ginsburg at Cornell University, where they were students between 1950 and 1954. In the early years of their marriage Ruth Bader looked after their baby daughter, studied for her classes and helped her husband keep up with his own studies while he battled cancer. They followed his career to New York, and in 1959 she graduated joint first in her class at Columbia Law School. Receiving no job offers from New York law firms, she clerked for a federal district judge and then went to Sweden to work on a comparative law project. The experience of living in Sweden, where childcare was freely available and women often worked and had families, was formative for Ginsburg’s politics.

So, too, was her experience, on returning to the US in 1963, of handling discrimination cases for the Women’s Rights Project, an affiliate organisation of the American Civil Liberties Union (ACLU) that she co-founded. Leading the ACLU’s Women’s Rights Project, Ginsburg argued before the Supreme Court that discrimination on the basis of sex was both morally and constitutionally wrong. Men could also be the target of that discrimination. On one occasion, a dinner guest noted Ginsburg’s achievements on behalf of women’s rights. But Ginsburg replied that it was the liberation of both women and men to which she dedicated herself.

In 1980 President Jimmy Carter appointed Ginsburg to the US Court of Appeals for the District of Columbia Circuit. But there was one yet more daunting rung on the legal ladder to climb, and when a Supreme Court seat was left vacant in 1993, Ginsburg became the second woman, and the first Jewish woman, to sit on the court. Though she said in her Senate confirmation hearing that her approach to judging was neither “liberal” nor “conservative”, in her 27 years on the bench, Ginsburg was indisputably a leading member of the court’s liberal wing. For example, she wrote the opinion for Sessions vs Morales-Santana (2016), which said that unmarried  American fathers weren’t required to live in the US for any longer than unmarried American mothers to transmit citizenship to their children.

But her liberalism also expressed itself in her fiery dissents, such as the one she composed in 2013 in response to the five-four vote that gutted the Voting Rights Act (this allowed nine states mostly in the south – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – to change election laws without federal approval). She wrote: “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.” Such dissents led to the moniker “the Notorious RBG”, a reference to the late rapper the Notorious BIG­, which the Justice herself happily embraced.

Ginsburg was not always progressive: her record on hiring black clerks was dismal, for example. But the United States, however imperfect it remains, is unquestionably a more equal, equitable country than it would have been without her work. And it will, or at least, can become a more equal, equitable country because of her.

As Ginsburg once explained: “Dissent speaks to a future age.” Even the opinions that she held in the minority may one day become the law of the land. Even if others “see the task through to completion”, she will have been the co-author.