The Precarious State of Justice Ruth Bader Ginsburg’s Progressive Legacy
United States of America Supreme Court Justice Ruth Bader Ginsburg passed away on September 18th, 2020, leaving behind a phenomenal legacy of progress toward equal rights for women and minorities. However, the vacancy she leaves behind in the Supreme Court may hastily be filled in such a manner that notable strides made toward social and environmental justice in the past 60 years are soon reversed. This probable outcome is of consequence to all of the world’s peoples and ecosystems, simply because the actions of the US have far-reaching effects on various aspects of life globally, including freedom, distribution of wealth, culture, human rights, and climate change. The disproportionate influence of the US is due primarily to its ideology of individualism, exceptionalism, and consumerism that drives the country’s economic (over)reach backed by its military power.
Not being a parliamentary system, the US constitution vests great power in one person, the President, who may take pervasive actions with worldwide effects through directives or Executive Orders that do not require legislative approval. For example, the Trump administration, building on a 1984 Executive Order issued by President Ronald Reagan, conditioned that almost all US global health aid for foreign entities be granted in exchange for certifying that abortions will not be performed or counseling provided about the procedure.[1] Another example is that of President Donald Trump promising to withdraw from the Paris Agreement, adopted in 2015 by 195 nations to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future.[2] Yet another example is that of the ‘Muslim Ban,’ an Executive Order signed by President Trump banning foreign nationals from seven predominantly Muslim countries from visiting or re-entering the US for specific periods of time.[3]
The above are just three examples of how actions taken by the US President can have far-reaching consequences globally on health, women’s reproductive rights, cultural norms, means of production, environmental preservation, migration, and travel. The US Supreme Court, the Judicial branch, comes into this calculus as a check on the power of the Executive and Legislative branches. And that is why it matters who the nine individuals sitting on the Supreme Court bench are. In the words of Justice Ginsburg: “The Court is a reactive institution. It’s never in the forefront for social change. There’s always a movement in society that’s pushing the Court that way.”[4] One of these movements that pushes the Court is that by a US President, who has the power to nominate an individual to fill a vacancy in the Supreme Court for confirmation by the US Senate by a simple majority. Appointments to the US Supreme Court are typically for life. Since the political system in the US is essentially binary, with this binary system increasingly becoming a system of viscerally diametric opposites, there are essentially two flavors of Supreme Court nominees: those who wish to advance social and ecological justice and those who do not. Thus, the composition of the Supreme Court may result in the advancing or receding of society for an entire generation or more.
Ruth Bader Ginsburg spent nearly her entire professional life persuading the Supreme Court to move in the direction of progress, as illustrated by her accomplishments first as a brilliant lawyer and then as an often admonishing dissenting Supreme Court Justice. Ruth Bader Ginsburg was born in 1933, when “if a woman worked, it was a sign that her husband couldn’t make it; it was a disgrace for a man to have a woman who worked outside the home.”[5] In 1959, upon graduating from Columbia Law School, tied for first in her class and being the first woman to have been on the Law Review at both Harvard and Columbia, “not a law firm in the entire city of New York would employ [her]…. being a woman was an impediment.”[6] One of her Columbia University professors eventually secured a clerkship for her by offering a judge who was a Columbia alumnus “this choice: give her a chance and if she doesn’t work out, there’s a young man in her class, who… will take over.”[7]
There were many discriminatory laws on the books in the US in the 1970s. For example, employers in most states could legally fire a woman for being pregnant, banks could require a woman applying for credit to have her husband co-sign, and in 12 states, husbands could not be prosecuted for raping their wives. It was in this legal climate that Ruth Bader Ginsburg, then a law professor at Rutgers University working with the American Civil Liberties Union (ACLU), took on the cases of “Sally Reed, who was assumed to be less competent to administer an estate, and Charles Morris, who was considered less competent to care for an elderly parent.”[8] In 1971, the US Supreme Court ruled in Reed v. Reed[9] that administrators of estates cannot be named in a way that discriminates between sexes. And in 1972, an Appeals Court ruled in favor of Moritz, citing Reed v. Reed.[10]
In 1972, Ruth Bader Ginsburg co-founded the ACLU Women’s Rights Project: “[w]e had three missions. And the first was public education. People have to care about the change. The second was legislature… get the legislature to change…. And then, finally, the Courts. We worked on all three levels.”[11]
Asked about her motivation to take on gender discrimination cases, Ruth Bader Ginsburg responded:
“One has to begin at the beginning. And what we faced were statute books, state and federal, that were riddled with classifications based on sex. What we wanted was to open all doors. For men and for women, that nobody should be blocked from an opportunity or pursuit of a particular course in life, because he was male or she was female. So the idea was to get rid of all the overt gender-based classifications. And that was the starting point: to have law books that did not classify people…. That was the mission. And what we encountered in approaching courts was something that was absent in the movement for racial justice… many people thought that gender discrimination operated benignly in women’s favor… that… all those protections sheltered women. It was hard for them to see that those so-called protections really operated… to put women not on a pedestal, but in a cage.”[12]
Ruth Bader Ginsburg wrote the amicus brief in the case of Frontiero v. Richardson, and for the first time in her legal career presented an oral argument in front of the US Supreme Court. The brief was powerfully persuasive, as the all-male Supreme Court ruled 8–1 for Frontiero, who had not been allowed to automatically claim her husband as a dependent for housing and medical benefits, while her male colleagues in the US Air Force had been allowed to do so for their wives[13]:
“Historically, women have been treated as subordinate and inferior to men. Although some progress toward erasing sex discrimination has been made, the distance to equal opportunity for women in the United States remains considerable…. A person born female continues to be branded inferior for this congenital and unalterable condition of birth. Her position in this country, at its inception, is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society’s decision-making councils…. The common law heritage, a source of pride for men, marked the wife as her husband’s chattel…. Prior to the Civil War, the legal status of women in the United States was comparable to that of blacks under the slave codes…. Neither blacks nor women could hold office, serve on juries, or bring suit in their own names. Men controlled the behavior of both their slaves and their wives and legally enforceable rights to their services without compensation…. [t]he parallel was not accidental, for the legal status of women and children served as the model for the legal status assigned to black slaves….”[14]
Describing her strategy in choosing and arguing six gender discrimination and equal rights cases in front of the all-male US Supreme Court, five of which cases she won, Ruth Bader Ginsburg revealed, “We frankly copied what the NAACP Inc. Fund [and Thurgood Marshall, who later became the first African-American Supreme Court Justice,] had done, that is, not to take the Court by storm, but to lead them there in slow degrees.”[15] Ruth Bader Ginsburg saw herself “as kind of a kindergarten teacher in those days, because the judges didn’t think sex discrimination existed.”[16] Through her meticulous and methodical litigation in the 1970s, she changed the legal landscape for women in the US. And so, when President Jimmy Carter was looking to revolutionize and diversify the judiciary, which was at the time mostly white and male, he appointed Ruth Bader Ginsburg as a federal judge in 1980, along with 39 other women during his presidency.
Within 13 years, Ruth Bader Ginsburg became the second woman to be appointed to the US Supreme Court upon being nominated by President Bill Clinton in 1993. Once on the bench, the Justice began as a moderate centrist, often acting to build consensus between her fellow Justices. But as the Supreme Court became increasingly pro-corporation (Citizens United v. FEC; Burwell v. Hobby Lobby), anti-minority (Trump v. Hawaii), anti-reproductive rights (National Institute of Family and Life Advocates v. Becerra), and pro-disenfranchisement (Husted v. A Philip Randolph Institute; Abbott v. Perez), Justice Ginsburg shifted more toward the side of progress in social justice and equal rights. In many instances, Justices who lean toward less inclusive and progressive judgments have embraced originalism, which focuses on the meaning of the US Constitution’s words at the time it was adopted in 1787. In explaining her jurisprudence of believing in a living constitution, i.e., that it is a document that adapts to the times, taking on different meanings depending on when it is interpreted, Justice Ginsburg explained:
“I take my cue from the preamble to the Constitution, which reads: We the People of the United States in order to form a more perfect union. Who were We the People in 1787? You [speaking to a female reporter] would not be among We the People. African-Americans would not be among the people… even white men who owned no property…. The notion of We the People has become ever larger. So the people who were once left out, like women, like African-Americans, like Native Americans, are now part of that We the People.”[17]
The passing of Justice Ginsburg leaves a vacancy that will most likely be filled by an originalist, meaning that the Supreme Court bench will become heavily stacked (6–3) against social and environmental progress. The rights and protections for which women, minorities, environmental activists, and human rights advocates struggled for decades are in danger of being rescinded. And the repercussions of this regression will be felt globally, not just in the United States. If corporations are soon allowed to set exorbitant prices on pharmaceuticals or have near-monopolies, the equitable access to resources will be affected in many countries. If environmental regulations are allowed to be dismantled, the resulting increase in pollution and waste generation will aggravate global warming, driving communities around the world into deeper poverty and ill-health and causing the destruction of a larger number of already endangered ecosystems. If religious parochialism is allowed to become more entrenched in American society, then US foreign policy may become even more intrusive.
Ruth Bader Ginsburg was not just an exceptional American; she was an exceptional human being, who helped temper the mindset of a very powerful country. During her first oral argument in front of the Supreme Court in 1973, she quoted “Sarah Grimké, a noted abolitionist and advocate of equal rights for men and women… [who] said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.””[18] While we mourn the death of Justice Ginsburg because her inspirational leadership will be sorely missed, it is difficult not to be concerned about our necks being stomped on once more.
[1] How US government restrictions on foreign aid for abortion services backfired. Grant Miller et al., Stanford Institute for Economic Policy Research (SIEPR). September 2019. Available on: https://siepr.stanford.edu/research/publications/how-us-government-restrictions-foreign-aid-abortion-services-backfired
[2] What is the Trump administration’s track record on the environment? Samantha Gross, Policy 2020 Brookings. August 4, 2020. Available on: https://www.brookings.edu/policy2020/votervital/what-is-the-trump-administrations-track-record-on-the-environment/
[3] Timeline of the Muslim Ban. ACLU Washington. Last visited 21st September, 2020: https://www.aclu-wa.org/pages/timeline-muslim-ban
[4] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo
[5] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo
[6] Hearings before the Committee on the Judiciary United States Senate 103rd Congress 1st Session on the nomination of Ruth Bader Ginsburg, to be associate Justice of the Supreme Court of the United States. Serial No. J-103–21, S. Hrg. 103–482. July 20, 21, 22, and 23, 1993.
[7] A conversation with Ruth Bader Ginsburg at HLS. Harvard Law School. February 7, 2013. Available on youtube at https://youtu.be/umvkXhtbbpk
[8] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo
[9] Reed v. Reed, 404 U.S. 71 (1971).
[10] Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972).
[11] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo
[12] Legally Speaking: Ruth Bader Ginsburg. University of California Television (UCTV). November 3, 2011. Available on youtube at https://youtu.be/XA5KTkCGTWo
[13] Frontiero v. Richardson, 411 U.S. 677 (1973).
[14] In the Supreme Court of the United States, October Term, 1972, №71–1694, Sharron A. Frontiero and Joseph Frontiero v. Melvin R. Laird et al. Brief of American Civil Liberties Union Amicus Curiae, Ruth Bader Ginsburg et al.
[15] A conversation with Ruth Bader Ginsburg at HLS. Harvard Law School. February 7, 2013. Available on youtube at https://youtu.be/umvkXhtbbpk
[16] RBG. Directed by Betsy West and Julie Cohen. CNN Films. Documentary released on January 21, 2018.
[17] 60 minutes Overview interview of Justice Ginsburg by Lesley Stahl. CBS News. 2008. Available at https://www.cbsnews.com/news/ruth-bader-ginsburg-60-minutes-interview-2020-09-19/
[18] Ruth Bader Ginsburg. Oral argument in Frontiero v. Richardson. US Supreme Court. January 17, 1973.
