Professor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. (1) Her impact on the law during that critical decade earned her the title "the Thurgood Marshall of the women's movement" and secured her place in history--even before she became a federal appellate judge and Supreme Court justice.
I will devote my allotted space to two, intimately intertwined, topics: first, Ruth Ginsburg and the Supreme Court's standard of review in sex discrimination cases, and second, the substance of Ruth Ginsburg's concept of gender equality in law.
Ruth Ginsburg and the Standard of Review
The Supreme Court, by 1970, had settled on what had become known as the "two-tier" approach to equal protection cases. Cases challenging racial classifications were in the top tier; the Court subjected those classifications to "strict scrutiny" and placed the burden on the state to defend its classification by showing a "compelling interest" in its race-based law or practice. Rare was the race line that survived that standard. Almost all other kinds of classification fell into the lower tier: in such cases the court would settle for almost any colorable rationale the state could offer up for its categories. Gender-based classifications were firmly relegated to the lower tier. (2)
Ruth Ginsburg called the lower tier approach to sex discrimination the "anything goes" standard. (3) When she began her ten-year litigation career, the Court had never encountered a sex classification that it did not consider perfectly reasonable and constitutionally sound. This meant that the first challenge for women's rights advocates of the early 1970s was to persuade the Court to undertake a more skeptical look at sex-based laws. Professor Ginsburg led the way: she was the first lawyer to argue to the United States Supreme Court that sex classifications should, like race classifications, be subjected to the highest standard of review. (4) She did this in the ACLU's Brandeis-style brief in Reed v. Reed, submitted to the Court in the summer of 1971. In it, she recounted in detail the history of the legally-enforced second-class status of women and pointed to the historical analogy between the political, social, and legal status of women and that of African Americans. (5)
In its brief opinion issued in November of '71, the Court did not adopt Ginsburg's position on standard of review or even refer to it, but it did, for the first time in its history, strike down a gender-line in law as a violation of the equal protection clause of the Fourteenth Amendment. Better yet, the language of the Reed decision hinted, tantalizingly, at a new, more skeptical approach to gender-based laws. (6)
Two years later, in Frontiero v. Richardson, (7) Professor Ginsburg's argument that strict scrutiny should apply to gender cases persuaded four but not the necessary five justices. Pragmatist that Ginsburg was, she thereafter focused on coaxing the Court to adopt a mid-level "heightened" review for sex discrimination cases. That mission was accomplished in 1976, when Justice Brennan formulated an intermediate standard for gender cases in Craig v. Boren. (8) Ruth Ginsburg had advised the plaintiffs' lawyer in that case, submitted an amicus brief for the ACLU, and sat at counsel table for his oral argument to the Supreme Court. (9)
Ruth Ginsburg's substantive vision of gender equality
How Ruth Ginsburg has been characterized--and lauded or criticized based on this characterization--is as a proponent of "formal equality" for the sexes, viewing discrimination against men and women as equally reprehensible in the same way some conservative justices viewed discrimination against white people as the moral and legal equivalent of discrimination against minorities. It has been said that she selected mostly male plaintiffs as a strategy to gain male judges' sympathies. (10) In my view, the critics are mistaken in at least two respects: one on the numbers and, more importantly, one on Ginsburg's substantive view of gender equality. (11)
The gender-based numbers: Critics seemed to have looked only at the Ginsburg cases in which the Supreme Court issued a decision on the merits after oral argument. There are six such cases. In those cases, men's equality cases did, indeed, outnumber women's equality cases 4-2--or 4-1 if you remove Frontiero from the count as a case with both a female and a male plaintiff. (12) But it seems to me that if one is to judge Ginsburg fairly on the numbers, one must look not only at the Ginsburg cases that the Supreme Court decided on the merits, but also the cases the Court chose to dispose of in other ways. One should count, for example, the case the Court decided per curiam without argument (female plaintiff) (13) and the two cases that were remanded for mootness determinations (both female plaintiffs). (14) And, of course, one must also include in the count cases in which Ginsburg sought but was denied review (six cases, all seeking to vindicate women's equality). (15) This more accurate count changes the score from 4-2 for men to 11-4 for women. (16) But having gotten that off my chest, I must say that this bean counting misses the more fundamental point: Ginsburg's substantive vision of gender equality was considerably richer and more nuanced than her critics recognized--indeed, it was a vision that renders my counting exercise irrelevant.
The substantive vision: (17) The substance of Ruth Ginsburg's vision of the nature of gender inequality is captured by my favorite RBG-ism: "sex-role pigeon-holing." Whether her client was a man or a woman (or, as in Frontiero, both), she crafted an argument that seems to be uniquely her own: she litigated each case as if her client's injury derived from the subordinate status or lesser economic importance of women. If the plaintiff was a man, she showed how his legal grievance derived from the lesser value...