Ginsburg, Ruth Bader (1933–)

Ruth Bader Ginsburg, legal scholar, successful advocate for gender equality, and jurist, currently serving as an associate justice on the U.S. Supreme Court, was born Joan Ruth Bader in Brooklyn, New York, on March 15, 1933. She was the daughter and granddaughter of Jewish immigrants from Central and Eastern Europe. Ginsburg’s life has shaped both of the main phases of her career as an advocate and a judge. Her personal experiences of unfairness undoubtedly spurred her to fight for greater equality for women. These experiences also led to her determination not to read her personal values into the Constitution. An early job researching another legal system led to a comparative perspective on American law. Additionally, personal tragedy gave Ginsburg great strength, as well as a strong commitment to family. She has said, ‘‘The smell of death was strong in my life,’’ but has still described herself as a lucky person, fortunate in love, motherhood, and a highly successful career in the law.

Ginsburg’s parents, Celia Bader, a garment district bookkeeper, and Nathan Bader, a furrier and haberdasher, were loving and supportive. But tragedy marred Ginsburg’s childhood. Her only sibling, Marilyn, died when Ginsburg was a toddler, and her mother fell seriously ill with cervical cancer when Ginsburg entered high school, dying the day before Ginsburg’s graduation. These losses made Ginsburg aware of the uncertainty of life and caused her to treasure her family, which has now expanded to include several grandchildren. She gave a third birthday party for one beloved granddaughter at the Supreme Court and has recalled that it was the only time that the main menu item on the buffet table was childsized peanut butter and jelly sandwiches.

Ginsburg’s mother was her greatest inspiration. Despite the fact that Celia did not have the opportunity to attend college, she valued learning and believed that women should have the same educational opportunities as men. Ginsburg attended Brooklyn public schools, where she excelled as a student and obtained a scholarship to attend Cornell University.

At Cornell, Ginsburg met her husband, Martin Ginsburg, also an undergraduate there. They married in 1954. The gregarious Martin is the reserved Ginsburg’s polar opposite in temperament, but their long marriage has been happy. After their wedding, Martin interrupted his studies at Harvard Law School to complete his military service, and the couple spent two years at Fort Sill, Oklahoma. Ginsburg worked in a Social Security office where she experienced workplace gender discrimination, receiving a job demotion after announcing her pregnancy. Following the birth of her daughter, Jane Carol, in 1955, Ginsburg spent a year as a full-time mother, the only time in her life that she did not hold a job outside her home.

Bolstered by the support of Martin and his family, Ginsburg decided to pursue a legal career and gained admission to Harvard Law School. When she started there in 1956, she was one of only nine women in a class of more than five hundred students. Martin’s willingness to share childcare and other household duties, most famously by acquiring gourmet cooking skills, gave Ginsburg time to study. She reciprocated by supporting Martin through his successful battle with a life-threatening cancer diagnosed in his third year of law school. After Martin graduated, the couple moved to New York City, where he had accepted a position with a law firm. Ginsburg transferred to Columbia Law School after Harvard refused to grant her a degree if she spent her last year at Columbia, even though male students usually received permission for similar arrangements.

Despite excelling in law school, being elected to the Harvard and Columbia Law Reviews, and tying for first place in her graduating class at Columbia in 1959, Ginsburg’s legal career got off to a difficult start as a result of the institutionalized gender discrimination in existence at the time. None of the many law firms to which she applied was willing to hire a woman, mother, and Jew. Finally, Judge Edmund L. Palmieri of the Southern District of New York agreed to take Ginsburg as his law clerk, though only after receiving an assurance from one of her professors that if her work was unsatisfactory, a male graduate was waiting in the wings to take over. This backup proved unnecessary. Judge Palmieri later rated Ginsburg one of his best law clerks.

After her two-year clerkship, Ginsburg’s career can be divided into two phases. During the first stage, which lasted just under two decades, she worked in law schools. For the second ten years, she also worked as an activist and highly successful advocate for gender equality. In the second phase of her career, she has served as a federal appellate judge for twentyfive years.

In her first law school position, Ginsburg focused on comparative law as a research associate in Columbia University’s International Procedure Project from 1961 to 1962 and as its director from 1962 to 1963. Her work there led to her 1965 book, Civil Procedure in Sweden, coauthored by Anders Bruzilius. In 1963, she obtained a position as a tenure track assistant law professor at Rutgers University, where she was only the second woman on the law faculty. She published a number of articles and book chapters on aspects of civil procedure, conflicts of law, private international law, and comparative law, as well as a 1968 translation of the Swedish Code of Judicial Procedure, also coauthored with Bruzilius.

While at Rutgers, Ginsburg experienced gender discrimination, receiving substantially less pay than male colleagues on the stated justification that her husband had a well-paying job. But the Equal Pay Act was already in force, and around 1970 Ginsburg joined a class action lawsuit brought by a number of women employees against Rutgers that ended in a settlement giving the plaintiffs a large pay increase. Fearing additional discrimination, Ginsburg hid her pregnancy with her son, James Steven, born in 1965, until she received a contract renewal. Ginsburg taught at Rutgers until 1971, when she moved to Columbia Law School where she was the first woman law professor to obtain tenure.

During the 1970s, Ginsburg shifted her attention to gender discrimination, inspired in part by students who wanted a course in women and the law. She taught courses on women’s rights, authored articles on that subject, and coedited the first casebook on sex-based discrimination. She combined her academic work with activism in support of the proposed equal rights amendment as well as advocacy in many gender discrimination cases, serving as codirector of the American Civil Liberties Union’s (ACLU’s) Women’s Rights Project. She was the ACLU’s general counsel from 1973 to 1980 and a member of its National Board of Directors from 1974 to 1980.

Believing that gender stereotypes are irrational and harmful, Ginsburg sought ‘‘to help place women’s rights permanently on the human rights agenda.’’ She worked to attack discrimination as an activist for ratification of the equal rights amendment and also through litigation brought under the equal protection clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Although the states failed to ratify the equal rights amendment, Ginsburg’s work as an advocate resulted in much success. She authored the ACLU’s brief in Reed v. Reed (1971), the first case in which the Supreme Court ruled in favor of a woman on an equal-protection claim. Ginsburg was the principal author of briefs in eight other gender discrimination cases argued before the Court, and she also coauthored fifteen amicus curiae briefs. She personally argued six gender discrimination cases before the Court, winning five of them.

These successful cases challenged laws that gave women special benefits but were based on stereotypical assumptions about women’s inferiority. Prominent among them was Frontiero v. Richardson (1973), a challenge to a statute that gave the families of men serving in the military automatic benefits while requiring the families of women in military service to prove that a woman provided more than half of her husband’s support. Another case, Duren v. Missouri (1979), attacked a law giving women an automatic exemption from jury service on request.

Ginsburg brought some of these cases on behalf of male plaintiffs in a successful effort to show that statutory gender-based classifications based on stereotypes harmed men as well as women. One example is Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), in which a widower with a young child sued the Social Security Administration to obtain survivor benefits then available only to widows. Another is Califano v. Goldfarb (1977), in which a widower sued to obtain survivor benefits that were only payable if he could prove that he received at least half his support from his wife, but which a widow would have automatically obtained.

The Court never accepted Ginsburg’s arguments that gender was a suspect classification requiring the same strict scrutiny that has been applied to classifications based on race or national origin. But by using alternative arguments, she was instrumental in persuading the Court to establish gender as a category for heightened constitutional scrutiny. In Craig v. Boren (1978), a case in which Ginsburg coauthored an amicus curiae brief, the Court endorsed a heightened intermediate level of scrutiny for official gender classifications, and it continues to apply a version of this test today.

Ginsburg’s work as an advocate ceased in 1980 after President Carter nominated her to the federal bench. She became a judge on the U.S. Court of Appeals for the District of Columbia. In thirteen years there, she wrote over seven hundred published and unpublished opinions. A White House report assessed her as ‘‘tough on crime, committed to free speech and freedom of religion, and supportive of civil rights.’’ In cases that were not unanimous, the judge voted more often with Republican colleagues than with Democrats. Judge Ginsburg earned a reputation for being a careful judge, meticulous with facts, committed to respecting precedent, and devoted to maintaining collegiality with her colleagues.

In 1993, President Clinton nominated Judge Ginsburg to serve as the 107th justice on the U.S. Supreme Court. The Senate easily voted to confirm her, by a vote of ninety-seven to three. Justice Ginsburg filled the seat vacated by Justice Thurgood Marshall, which seemed particularly appropriate to commentators who had nicknamed her the ‘‘Thurgood Marshall of gender equality law.’’ They drew a parallel between her advocacy and activism in gender discrimination cases and Marshall’s fight against Race Discrimination as chief counsel for the NAACP Legal Defense Fund.

Justice Ginsburg clearly views her role on the bench as fundamentally different from the adversarial job of an advocate. She has cited the words of Alexander Hamilton that ‘‘the mission of judges is to secure a steady, upright and impartial administration of the laws.’’ According to the justice, ‘‘one of the most sacred duties of a judge is not to read her convictions into the Constitution.’’ She believes that a judge should limit herself to deciding the case before her. Justice Ginsburg has described courts as ‘‘reactive institutions’’ that respond to societal problems brought to them. Protecting civil rights is thus not the sole responsibility of the judiciary, but depends on the people in society. Within these parameters of judicial restraint, she has retained her commitment to advancing gender equality and fighting discrimination.

Justice Ginsburg’s most significant Supreme Court opinion on gender equality was United States v. Virginia (VMI) (1996). She wrote a seven-to-one majority opinion finding it unconstitutional, under the Equal Protection Clause of the Fourteenth Amendment, for the state of Virginia to bar women from admission to the Virginia Military Institute. The justice found the applicable level of constitutional review to be a flexible version of the intermediate scrutiny test endorsed by the Court in Craig v. Boren. She called this test ‘‘skeptical scrutiny.’’ Under it, a government gender-based classification will only be upheld if the government can establish an ‘‘exceedingly persuasive justification’’ for it. The government must show that the classification serves important governmental objectives and that the discriminatory means used are substantially related to achieving those objectives.

The justice has expressed disapproval of a rigid categorical approach to the equal protection clause in discrimination cases of any sort. She has voiced concern that the Court’s higher standard of review for race-based classifications has undesirable consequences for Affirmative Action. Justice Ginsburg views a formal tier-based approach to equal protection as undesirable for making government attempts to assist historically disadvantaged racial minorities through Affirmative Action less likely to fend off constitutional attacks than similar efforts to aid women. She views the core idea underlying the equal protection clause as the human rights principle of respect for essential human dignity. Justice Ginsburg believes that basic notions of fairness should guide the Court in resolving discrimination cases. This view is manifested in her dissenting opinion in the case successfully challenging the University of Michigan’s undergraduate Affirmative Action program, Gratz v. Bollinger, 539 U.S. 244 (2003).

As this opinion shows, the justice still retains her belief in the value of analyzing legal issues comparatively, a method that she has endorsed since her very first academic position. In one of her lectures, Justice Ginsburg said:

In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as well as the determination to counter it, we all share.

SUSANNA FISCHER

References and Further Reading

• Bayer, Linda. Ruth Bader Ginsburg. Philadelphia: Chelsea House, 2000.
• Baugh, Joyce Ann et al., Justice Ruth Bader Ginsburg: A Preliminary Assessment, University of Toledo Law Review 26 (1994): 1.
• Celebrating the Jurisprudence of Ruth Bader Ginsburg, New York City Law Review 7 (2002).
• The Day, Berry and Howard Visiting Scholar, An Open Discussion with Justice Ruth Bader Ginsburg, Connecticut Law Review 36 (Summer 2004): 1033.
• Ginsburg, Ruth Bader, Remarks for the Celebration of 75 Years of Women’s Enrollment at Columbia Law School, Columbia Law Review 102 (October 2002) 1441.
• Ginsburg, Ruth Bader, and Deborah Jones Merritt, Fifty- First Cardozo Memorial Lecture Affirmative Action: An International Human Rights Dialogue, Cardozo Law Review 21 (October 1999): 253.
• Gunther, Gerald, Ruth Bader Ginsburg: A Personal, Very Fond Tribute, University of Hawaii Law Review 20 (Winter 1998): 583.
• Pressman, Carol, The House That Ruth Built: Justice Ruth Bader Ginsburg, Gender, and Justice, New York Law School Journal of Human Rights 14 (1997): 311.
• Symposium: Celebration of the Tenth Anniversary of Justice Ruth Bader Ginsburg’s Appointment to the Supreme Court of the United States, Columbia Law Review 104 (January 2004).