RUTH BADER GINSBURG.

• Date: 01 January 2022
• Author: Gertner, Nancy
• Published date: 01 January 2022
• Author: Gertner, Nancy

Ruth Bader Ginsburg is a unique figure in the history of American law. In 1972, she became the founding director of the American Civil Liberties Union Women's Rights Project, where she served until her appointment to the federal bench. Her record as an advocate before the Supreme Court was outstanding; she argued six cases before the Court, winning five. Had she had done nothing else in her life, that alone would have been an extraordinary legacy. She was then confirmed for the United States Court of Appeals for the District of Columbia in 1980 and, from there, as an associate Justice of the United States Supreme Court in 1993. (1)

In her 1974 Women and the Law textbook, (2) Justice Ginsburg and her coauthors outlined their broad vision of gender equality. (3) It went beyond simply empowering women to compete for stereotypically "men's" jobs (like lawyer, for example). (4) Their efforts were aimed at enabling "members of both sexes" to assume all of society's roles. Of course, stereotypes of women as "mother, wife, girlfriend, nurse, helper, the symbolic identification of authority with maleness, from deep resonant voices to patriarchal gods, the relative absence of working women as competent and successful role models" skewed women's view of what was possible. (5) But these attitudes, they suggested, impeded men as well, who were "no less trapped in their assigned roles." (6)

The theory was radical for the 1970s, but Justice Ginsburg's approach as a litigator was decidedly incremental. She picked her cases carefully, rooting her arguments in careful and extensive factual and legal analysis. She often represented men who were discriminated against by statutes that favored women, demonstrating what she had said in that 1974 text: Discrimination hurts everyone. (7)

In 1973, Ginsburg represented Sharron Frontiero, an Air Force officer whose husband, Joseph, had been denied the housing and medical benefits that female spouses of male Air Force officers automatically received. Ginsburg's brief covered the history of discrimination against women, peppered with references to Alexis de Tocqueville and Alfred Lord Tennyson. (8) And at the oral argument to nine male justices of the Supreme Court, she quoted Sarah Grimke, a nineteenth-century women's rights advocate: "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks." (9) She won the case.

Her judging reflected the same incrementalism. Although animated by a passionate concern for equality--she knew what it was like to be powerless, or to represent the powerless--she was an advocate of judicial moderation, anxious not only to avoid upending precedent but also upending collegiality with her judicial colleagues. (10) At her confirmation, she said a judge should "strive to write opinions that both 'get it right' and 'keep it tight.'" (11) In fact, her work on the bench was far, far more complex and nuanced than the label "liberal," let alone "activist," suggests.

She was, as the New York Times's Linda Greenhouse described at the time of her confirmation, a "judicial-restraint liberal," (12) who combined a "muscular and broadly inclusive Constitution" with a "pragmatist's sense that the most efficacious way of achieving the Constitution's highest potential as an engine of social progress is not necessarily through the exercise of judicial supremacy." (13) Ginsburg's interpretation of that "muscular and broadly inclusive" Constitution emerged from narrowly crafted rulings, from language respectful of her colleagues, and from threading the boundaries of precedent. She would take pains to situate the Court's precedent in their social and historical context, tirelessly recounting the history of gender-based classifications, as she had in Frontiero, all the while acknowledging "[t]he realities of the workplace" and the "real-world characteristics" of discrimination. (14)

While to Justice Ginsburg the Constitution should be read "as belonging to a global twenty-first century, not as fixed forever by eighteenth-century under-standings," (15) the range of judicial interpretation enabled by the Constitution's language was not without limits. As she noted in a lecture delivered before her 1993 elevation to the Supreme Court, courts have an important role to play in identifying new understandings of the Constitution, but they should do so by "[m]easured motions." (16) Courts must recognize, then-Judge Ginsburg contended, that "they participate in a dialogue with other organs of government, and with the people as well." (17)

Only three years after she joined the Court, she authored an extraordinarily significant decision, United States v. Virginia. (18) The United States government challenged Virginia's practice of admitting only men to its prestigious military college, the Virginia Military Institute (VMI). The...