• Ariel Donato

Ruth Bader Ginsburg: The Making of a "Notorious" Supreme Court Justice


Justice Ruth Bader Ginsburg visited Wake Forest University in 2005. "We haven't reached utopia yet," she said, of women's rights. (Wake Forest University School of Law/Flickr)


Few jurists are known to the masses, let alone enjoy near-celebrity status. For that matter, few U.S. Supreme Court justices truly affected the daily lives of many Americans. In these two regards, the recently deceased Ruth Bader Ginsburg stands alone.


Her Early Life


Joan Ruth Bader was born in Brooklyn, New York, on March 15, 1933, to a furrier and a garment industry worker. She was educated in Brooklyn’s public schools and graduated from James Madison High School in 1950 at the top of her class. In 1954, she graduated from Cornell University with a bachelor’s degree in government, and top honors: Phi Beta Kappa, high departmental honors, class marshal.


Also in 1954, Ginsburg married her Cornell classmate Martin D. Ginsburg. The young couple moved to Fort Sill, Oklahoma, where she worked as a law firm typist and a Social Security Administration claims adjuster. Upon beginning the latter job, she told her supervisor she was three months pregnant. The supervisor responded that, due to the pregnancy, she would be hired as a GS-2 but would do the work of a GS-5. Because it was expected of her, Ginsburg resigned upon giving birth to her first child.


In 1956, Ginsburg began attending Harvard Law School. The same year, her husband (who was a year ahead of her at Harvard Law) developed testicular cancer. Ginsburg juggled caring for her husband and their child, running a household, and managing legal studies. Upon graduating from Harvard in 1958, he got a job at a New York City law firm. To stay close to her husband, Ginsburg transferred to Columbia Law School, where she immediately made the law review. She graduated from Columbia in 1959 and tied for first in her class.

A Young Female Lawyer


Upon graduation, Ginsburg sought judicial clerkships but was repeatedly rejected despite glowing recommendations. No one wanted a young Jewish mother for a judicial clerk. Finally, one Columbia professor told U.S. District Court Judge Edmund Palmieri that he would not recommend any more Columbia graduates for clerkships unless Palmieri would accept Ginsburg. Soon after, she began clerking for Judge Palmieri.


From 1961 to 1963, Ginsburg worked on an international procedure project at Columbia Law School. During this endeavor, she was inspired by a Swedish jurist working through her eighth month of pregnancy.


In 1963, when there were fewer than 20 female U.S. law professors, Ginsburg became a professor at Rutgers Law School. Here, she learned she would earn less than male professors because she had a well-paid husband. In 1965, Ginsburg had a son. She kept her pregnancy hidden from Rutgers colleagues. In 1970, along with Nadine Taub, Ginsburg began the Women’s Rights Law Reporter, the first U.S. publication of its kind. She remained on the Rutgers faculty until 1972.


From 1972 to 1980, Ginsburg was a professor at Columbia Law, where she co-authored the first casebook on sexual discrimination. She became Columbia’s first female law professor to receive tenure.

Supreme Court Advocacy


In 1971, in conjunction with the American Civil Liberties Union (ACLU), Ginsburg primarily authored the appellant’s brief in Reed v. Reed, a landmark Supreme Court case unanimously holding that under the Equal Protection Clause of the Fourteenth Amendment, the law’s arbitrarily dissimilar treatment of men and women was unconstitutional. The case resulted from an Idaho statute preferring males to females in contests involving who should serve as the administrator of a deceased’s estate.


In 1972, Ginsburg helped establish the ACLU’s Women’s Rights Project. Within two years, the project participated in over 300 sexual discrimination cases. Most of the cases involved discrimination against women, but strategically, some involved discrimination against men.


Between 1973 and 1976, on behalf of project plaintiffs, Ginsburg argued six gender discrimination cases before the U.S. Supreme Court. She won five of them. These five victories focused on specific problematic statutes but built upon each other to create, practically speaking, an entire body of gender discrimination law.


1. Frontiero v. Richardson (1973)

U.S. Air Force lieutenant Sharron Frontiero requested a dependent’s allowance for her husband. The Air Force denied her request. Although wives automatically became dependents of their military husbands, federal law did not provide the same benefits for husbands of military wives. In an eight-to-one decision, the U.S. Supreme Court held that the federal law violated the equal protection requirements of the Fifth Amendment Due Process Clause. (The Fifth Amendment due process clause extends Fourteenth Amendment equal protection to the federal government.) Ginsburg argued for the ACLU as amicus curiae.

2. Weinberger v. Wiesenfeld (1975)

Wiesenfeld’s wife died in childbirth, and left her husband with a newborn son. Wiesenfeld applied for Social Security benefits for himself and his son, based upon his deceased wife’s earnings. The Social Security Administration denied the widower’s application, because federal law provided that benefits are available only to a widow but not to a widower. Wiesenfeld commenced a class action on behalf of himself and other widowers denied benefits. In a unanimous opinion, the Supreme Court held that the federal law violated the equal protection requirements of the Fifth Amendment Due Process Clause. Ginsburg argued for appellee Wiesenfeld and the class.

3. Edwards v. Healy (1975)

A Louisiana law exempted women from jury service unless they specifically declared they wished to serve. Upon hearing oral argument, the Supreme Court remanded the case to District Court, based upon its ruling in Taylor v. Louisiana (holding that the Louisiana law violated the Sixth Amendment right to a jury of one’s peers). Ginsburg argued for appellee Healy and similarly-situated plaintiffs.

4. Califano v. Goldfarb (1977)

Widower Goldfarb was denied survivor’s benefits under the Social Security Act. Federal law provided no qualifications for widows, but several qualifications for widowers. In a five-to-four decision, the Supreme Court held that the federal law violated the equal protection requirements of the Fifth Amendment Due Process Clause. Ginsburg argued for appellee Goldfarb and similarly-situated plaintiffs.

5. Duren v. Missouri (1979)

Accused of first degree murder and first degree robbery, Duren faced an all-male jury. In appealing the conviction, Duren noted that Jackson County gave women an automatic exemption from jury service. Consequently, only 26.7% of people summoned for the jury pool were women. Arguing for Duren, Ginsburg asserted that the automatic exemption violated the Sixth and Fourteenth Amendment guarantees of a jury chosen from a fair cross-section of the community. In an eight-to-one decision, the U.S. Supreme Court agreed.

In addition to these cases, Ginsburg became involved in other similar cases. For example, she filed an amicus brief in Craig v. Boren (1976), in which the plaintiff challenged an Oklahoma law with different minimum drinking ages for men and women.

In sum, Ginsburg submitted a legal brief or orally argued in almost every major Supreme Court gender discrimination case in the 1970s. One important case with which she was not involved: Roe v. Wade, decided in 1973.

Judge Ginsburg

Official Supreme Court portrait from 2016. (Supreme Court of the United States)


In 1980, President Jimmy Carter appointed Ginsburg to serve on the U.S. Court of Appeals for the D.C. Circuit. Although observers anticipated she would be an activist judge, she was quite cautious in her rulings. Defying liberal and conservative labels, she was a centrist, a moderate, a conciliator, a consensus builder, and a peacemaker. Ginsburg made a strong impact on the court through her willingness to discuss legal issues with colleagues and to remain friendly despite strong philosophical disagreements.


In 1992, Ginsburg gave her renowned Madison Lecture at New York Law School. In it, she argued that in its Roe v. Wade decision, the Supreme Court made an overbroad ruling. She agreed that the Texas law was unconstitutional, but suggested that the opinion should have been limited to a ruling on the Texas law.

Associate Justice Ginsburg


In 1993, acting upon recommendations from then-Attorney General Janet Reno, Republican Senator Orrin Hatch, and the American Bar Association, President Bill Clinton nominated Ginsburg for the seat vacated by Justice Byron White. Ginsburg satisfied President Clinton’s quest for diversity ― she would be the second female justice, and the first Jewish female justice. The Senate confirmed her nomination with a 96-3 vote.


As a Supreme Court associate justice, Ginsburg authored a number of the court’s important opinions: for example, U.S. v. Virginia (1996), striking down male-only admissions at the Virginia Military Institute; Olmstead v. L.C. (1996), holding that mental illness is a disability covered by the Americans with Disabilities Act; Friends of the Earth, Inc., v. Laidlaw Environmental Services, Inc. (2000), holding that residents have standing to seek fines for industrial polluters who harm their interests. Over time, Ginsburg became better known for her fiery dissenting opinions; for example, in Ledbetter v. Goodyear (2007), Ginsburg pointed out that the majority’s absurd argument on the statute of limitations; in Gonzales v. Carhart (2007), regarding partial birth abortion, she disputed the underlying legislative findings that the procedure is dangerous; in Burwell v. Hobby Lobby, she decried a corporation’s ability to circumvent the law on purportedly religious grounds.

Pop Culture Icon


Around the time of Ginsburg’s angry dissents in Fisher v. University of Texas (2013), regarding affirmative action, and in Shelby County v. Holder (2013), regarding the Voting Rights Act, a NYU law student created a Tumblr account entitled “Notorious R.B.G.” (with apologies to the rapper Notorious B.I.G.). Next came more blogs, t-shirts, memes, Funko Pop dolls, a comic book, Etsy lace jabots, social media attention, and mainstream media attention.


She may now be gone, but her words will live on.


The day after Ruth Bader Ginsburg's passing, people came to the U.S. Supreme Court to mourn and honor her. (Ted Eytan/Flickr)

 

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