Ruth Bader Ginsberg’s Legacy Is Based On White Feminism

by Muqing Zhang

flickr/Geoff Livingston

Ginsberg has become a feminist icon. But in her work, she destroyed any and all affirmative action and public programs that favored women.

Ruth Bader Ginsburg has become a beloved feminist icon. Immortalized in numerous viral tweets and memes, she is endearingly referred to as “Notorious RBG” and a real-life “superhero,” Ginsburg has recently been the focus of the documentary RBG and the film On the Basis of Sex, released in May and December of 2018, respectively. Both are glowing portrayals of Ginsburg’s early career in the 1970s as a sex discrimination litigator.

During this period, Ginsburg co-founded the Women’s Rights Project at the ACLU and brought or participated in over three hundred sex discrimination cases and almost every major Supreme Court case on sex discrimination. This period in her career has made her so valorized that few understand the actual details of these cases and the sex discrimination legal standards that she left us with today.

The truth is that through the hundreds of sex discrimination cases that she litigated, Ginsburg systematically targeted and destroyed any and all affirmative action and public programs that favored women. Through her seminal cases such as Frontiero v. Richardson (1973) and Weinberger v. Wiesenfeld (1975) — some of her most famous “feminist” legal wins — Ginsburg left us with a legal standard that makes it extremely difficult, if not impossible, for federal, state, and local government entities; universities; and private institutions to create preferential policies for women.

Why would Ginsburg — who has become beloved for her viral feminist quotes — have devoted her pre-Supreme Court litigation career to destroying the preferential and affirmative action programs for women? White feminism.

Ginsburg ruthlessly litigated based on a white feminist legal theory called “anti-classification” theory, also known as “sameness feminism,” “sex-blindness,” or “anti-stereotyping” theory. Similar to the concept of color-blindness, sex-blindness is the belief that there should be no differentiation based on sex, even affirmative action and preferential policies. These white feminists, including Ginsburg, theorized that beneficial policies that differentiated on the basis of gender stereotyped women as weaker than men. Thus, they opposed these policies as sexist. It was an easy theory for white women to embrace, as sexism was often the only form of discrimination they faced, so the eradication of preferential sex treatment meant the eradication of their problems.

Ginsburg’s legal legacy is one that, against all reason, is predicated upon the inherently racist and classist belief that women should not receive any preferential treatment, at the devastating expense of the most vulnerable populations within the category of women who needed these preferential policies — poor, queer, and non-white women. Although it may not have been Ginsburg’s explicit intent to harm the most marginalized of women, part of the insidiousness of white feminism is that it convinces its believers that the white woman’s experience is the universal experience for all women, and that all women aspire to the social position of white men. In the end, it is not the intent, but the devastating impact that matters.

Ginsburg left us with a legal standard that makes it extremely difficult, if not impossible…to create preferential policies for women.

Propelled by this sex-blindness theory, despite intense criticism by non-white women legal theorists, Ginsburg’s supposedly shining period in the 1970s as a litigator for the ACLU was in actuality a period during which she strategically litigated hundreds of cases that targeted and destroyed any policy that benefited women over men.

In Craig v. Boren (1976) — one of her most high profile “feminist” wins that launched her to fame — Ginsburg argued before the Supreme Court on behalf of her male plaintiff that an Oklahoma statute that required men to be older to buy beer than women was sex discrimination against men, and thus unconstitutional. The Supreme Court ruled in her favor. In Weinberger v. Wiesenfeld (1975), Ginsburg represented a white male widower before the Supreme Court and argued that Social Security regulations that permitted female widows but not male widowers to collect special benefits while caring for minor children was reverse sex discrimination. The court agreed, and she got the preferential Social Security regulation towards women abolished.

In Califano v. Goldfarb (1977), Ginsburg represented yet another white male plaintiff, arguing that the Social Security Act’s allotment of greater survivor’s benefits to female widows than male widowers was unconstitutional. In her oral argument before the Supreme Court, Ginsburg explained why sex discrimination against men should be regarded the same as sex discrimination against women: “[A]lmost every discrimination against males operates against females, as well…. I don’t know of any line that doesn’t work as a two-edged sword, doesn’t hurt both sexes.”

The list is endless. In case after case, Ginsburg executed a strategic plan to target and destroy any and all preferential public or private policy that favored women over men. According to “Ruth Bader Ginsburg ‘s Equal Protection Clause: 1970–80” by Wendy Webster Williams, a final tally of Ginsburg’s cases revealed that 4 to 1, Ginsburg represented male (likely mostly white) plaintiffs over female plaintiffs. Ginsburg systematically litigated cases that were nearly identical in pattern to advance her agenda. She represented white male plaintiffs, alleged that a law or policy that gave preference to women was reverse sex discrimination against her male plaintiff, and claimed that this differentiation on the basis of sex was thus unconstitutional. She did this with the explicit goal of decimating preferential policies towards women, because she, as a white woman, held the white feminist belief that any distinction drawn between men and women — even in the form of affirmative action — meant that (white) women could never be seen as equal to (white) men.

Interestingly, On the Basis of Sex even chronicles Ginsburg as she litigates one of her male plaintiff cases to destroy a preferential program for women. In the trailer, Felicity Jones, acting as Ginsburg, proclaims, “If the law differentiates on the basis of sex, then how are men and women ever supposed to be equal. . . This is sex based discrimination against a man.” The film portrays Ginsburg as a heroine as she proclaims that men can be victims of reverse sex discrimination.

The impact of the hundreds of cases that she litigated are devastating. The legal standard that she created, called “intermediate scrutiny,” requires courts to review any law or policy that classifies on the basis of sex, even benign ones that preference women, with heightened scrutiny and an inherent belief that any classification, even ones used to benefit women, are invidious and harmful. Intermediate scrutiny is an extremely difficult burden for affirmative action and preferential policies to survive. Thus, Ginsburg, through the cases that she brought during the height of her supposed feminist career, not only eliminated existing preferential policies for women, she largely destroyed the possibility of future beneficial policies to women.

Numerous high-profile cases after the 1970s were brought and continue to be brought to take advantage of the intermediate scrutiny standard Ginsburg instated. These cases were brought in order to destroy programs beneficial to women. For example, in Miss. U. for Women v Hogan (1982), the Supreme Court, based on the heightened legal standard of scrutiny that Ginsburg set, ruled that the nursing school’s affirmative action admissions policy for women was unconstitutional and forced it to accept men as well. In JEB v Alabama (1994), the Supreme Court, based on the standard that Ginsburg set, ruled that women can not strike male jurors based on their gender, because this was supposedly sex discrimination against men.

The impact of the hundreds of cases that she litigated is devastating.

How many universities, government agencies, employers, and public and private institutions have and continue to refrain from creating preferential policies to preferentially admit, hire, or provide more resources to women? How many women out there, especially marginalized women, would have benefitted from preferential policies throughout their lives? Across all public and private entities, across all industries, the ability to create preferential policies to benefit women has been forever restricted by Ginsburg.

The issue is that, while privileged white women like Ginsburg were eager to destroy preferential policies for women for the mere symbolism of being considered equal to white men — the poor, queer, and non-white women who desperately need these programs far more than white women were left stranded. According to “Feminist Disagreement (Comparatively Recast)” in the 2008 Harvard Journal of Law & Gender, white women legal theorists like Ginsburg believed that men could be victims of reverse sexism, and that the pinnacle of equality for women was not radically revamping of the structure of sex discrimination, but instead aspiring to be considered equal to white men. Ginsburg shaped the case law in a way in which affirmative action programs for women are all but eviscerated — all because privileged white women like Ginsburg chafed at the idea of being considered different from men and being given “special” treatment.

Ginsburg’s strategy of destroying existing and future potential preferential policies for women has been rightly criticized by legal theorists. Radical legal feminist and Professor of Law Catharine A. MacKinnon wrote in Feminism Unmodified: Discourses on Life and Law regarding Ginsburg’s “feminist” litigation, “[M]uch of what has passed for feminism in law has been the attempt to get for men what little has been reserved for women.” Professor Judith Baer in Advocate on the Court: Ruth Bader Ginsburg and the Limits of Formal Equality, in Rehnquist Justice: Understanding the Court Dynamicwrote on Ginsburg’s sex discrimination cases, “So far men have been the primary beneficiaries of the new sexual equality doctrine. Ruth Ginsburg has given no indication that this outcome troubles her.”

Ginsburg’s disturbing legal history evinces a greater truth — middle and upper class white women like Ginsburg are able to advance to the upper echelons of society and obtain the privileges of white men that they desperately seek. According to Professor of Law Yxta Maya Murray in “A Jurisprudence of Nonviolence,” the white women who advanced this sex-blindness theory aspired to be thought of as equal to white men and attain the social and economic privileges of white men, which upper class white women eventually did — perhaps with little thought to the enormous harm that they enacted upon poor women and women of color, who faced other forms of violence and discrimination that would keep them from achieving equality with white men.

In her seminal article “Race and Essentialism in Feminist Legal Theory,” Professor of Law at UC Davis School of Law Angela P. Harris wrote, “[I]n feminist legal theory, as in the dominant culture, it is mostly white, straight, and socioeconomically privileged people who claim to speak for all of us. Not surprisingly, the story they tell about ‘women,’ despite its claim to universality, seems to black women to be peculiar to women who are white, straight, and socioeconomically privileged…”

For decades, non-white women legal theorists have strongly criticized Ginsburg for gutting legally sanctioned affirmative action for women, and for her complete obsession with white women attaining the status of white men that has wreaked immeasurable harm on poor women and women of color. Black critical race feminist legal theorists such as Angela P. Harris, Kimberle Crenshaw, Dorothy Roberts, and Angela Onwuachi-Willig have long critiqued the brand of white liberal feminism that Ginsburg advanced as class-privileged, inherently racist, and harmful towards non-white, non-straight women.

Yet, few outside of the insular world of legal academia know of these critiques. The public continues to fawn over Ginsburg as our generation’s feminist icon as the poor, queer, and non-white women that were inevitably sacrificed by her white feminist ideals remain vulnerable targets of violence. Some of that is because most people aren’t reading through all her legal decisions, and the summaries, on their face, sound good. But perhaps the reason why these critiques remain obscure in the eyes of the public — while Ginsburg’s star continues to rise — is because the world is more than willing to love violent white women who throw non-white women, poor women, and queer women under the bus.

Ginsburg has become an enormous cultural icon, yet her brand of feminism is only beneficial to one type of woman — class-privileged white women. For the millions of queer, poor, and non-white women out there who have had preferential university admissions, healthcare, and public benefit programs inevitably snatched from them by Ginsburg and white feminist litigators’ work, we cannot afford to continue valorizing this brand of feminism. We do not have the privilege of being rich and white. We do not have the privilege of having our entire political orientation rest upon aspiring to be granted the same privileges of white men. We live at the crossroads of race, class, and gender violence. Who actually benefits from Ruth Bader Ginsburg’s legacy? Certainly not us.