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When Ruth Bader Ginsburg entered Harvard Law School in 1956, she was one of nine women in a class of about five hundred, and the dean asked the women to justify taking places that could have gone to men. When she died in September 2020, she was the most famous judge in the world. In between, she did more than any other lawyer to establish that the United States Constitution prohibits discrimination on the basis of sex, first as an advocate and then as a justice.

Early Life

Joan Ruth Bader was born in Brooklyn on 15 March 1933, the daughter of a furrier and a garment worker. Her mother, who had been denied a university education so that her brother could have one, died of cancer the day before Ruth’s high school graduation. Ruth went to Cornell, where she met Martin Ginsburg, whom she married in 1954. She followed him to Harvard Law School, where she made the Law Review while caring for a young daughter and a husband being treated for cancer. When Martin took a job in New York, she transferred to Columbia, made its Law Review too, and graduated in 1959 tied for first in her class.

No law firm in New York would hire her. She clerked for a federal district judge, worked on a Columbia project on Swedish civil procedure, and in 1963 became a professor at Rutgers Law School, where she was told she would be paid less than male colleagues because her husband had a good job. In 1972 she became the first woman to receive tenure at Columbia Law School.

The Advocate

In the early 1970s Ginsburg co-founded the Women’s Rights Project of the American Civil Liberties Union and became its general counsel. Her strategy was deliberate and incremental. Rather than asking the Supreme Court to declare sex a suspect classification in a single dramatic case, she chose cases, several with male plaintiffs, that showed how laws built on assumptions about men’s and women’s roles harmed everyone.

She wrote the brief in Reed v Reed in 1971, the first case in which the Supreme Court struck down a law for discriminating against women. In Frontiero v Richardson in 1973, arguing in person, she persuaded the court that a female air force officer was entitled to the same dependants’ benefits as her male colleagues. She argued six cases before the Supreme Court and won five. By the end of the decade, the court had settled that sex-based classifications require heightened justification.

The Judge

President Carter appointed her to the United States Court of Appeals for the District of Columbia Circuit in 1980, where she earned a reputation as a careful, consensus-seeking judge. In 1993 President Clinton nominated her to the Supreme Court. She was confirmed by ninety-six votes to three and sworn in on 10 August 1993, the second woman and the first Jewish woman to sit on the court.

Her most important majority opinion came in United States v Virginia in 1996, holding that the Virginia Military Institute could not exclude women and that any sex-based distinction required an exceedingly persuasive justification. As the court moved to the right, her influence was increasingly felt in dissent. In Ledbetter v Goodyear in 2007, she dissented from a decision limiting pay discrimination claims, reading her dissent from the bench and calling on Congress to act; the Lilly Ledbetter Fair Pay Act followed in 2009. In Shelby County v Holder in 2013, she dissented from the decision that dismantled part of the Voting Rights Act, comparing it to throwing away an umbrella in a rainstorm because one was not getting wet.

The Icon

In her last decade, Ginsburg became a cultural figure, nicknamed the Notorious RBG after a rapper, celebrated in books, a documentary and a feature film. She embraced it with dry humour. Her friendship with Justice Antonin Scalia, her ideological opposite, was a reminder that disagreement need not mean enmity. She survived several bouts of cancer and continued working until her death on 18 September 2020, at eighty-seven.

Why She Matters

Ginsburg’s significance is not that she was the first woman to do anything. It is that she changed the law by argument, one case at a time, before she had any power to decide it. For lawyers in Bangladesh working on Article 28 of the Constitution, which prohibits discrimination on grounds of sex, her career is a model of strategic litigation: choose the right facts, ask for a little at a time, and build a body of precedent that a court cannot easily undo. Her dissents are also a model of how a judge in the minority keeps a principle alive for the day the majority changes.

Sources

1. Wikipedia, Ruth Bader Ginsburg: https://en.wikipedia.org/wiki/Ruth_Bader_Ginsburg
2. National Women’s History Museum, Ruth Bader Ginsburg biography: https://www.womenshistory.org/education-resources/biographies/ruth-bader-ginsburg
3. Supreme Court of the United States, United States v Virginia, 518 U.S. 515 (1996), Justia: https://supreme.justia.com/cases/federal/us/518/515/