The last time I saw Justice Ruth Bader Ginsburg was a year ago—in October 2019, when I argued Bostock v. Clayton County before the Supreme Court. The case presented the question of whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “because of…sex,” prohibits an employer from denying someone a job opportunity for being lesbian, gay, or bisexual. Ginsburg’s was the first question, and she began, “Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind?” Back in 1964, likely no one in Congress thought lesbian, gay, or bisexual people should be protected. But it was in no small part due to her efforts to combat sex-based stereotypes that the Supreme Court answered that question in favor of equal employment opportunity for LGBT workers.
Ginsburg’s career reflected a lifelong commitment to the idea, expressed in her 1996 opinion for the Court in United States v. Virginia, that government “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Those generalizations, she understood, deny liberty and equality to both men and women.
That connection between liberty and equality also informed what I consider her most provocative work—a lecture she gave in 1984 entitled “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.”1 In 2009, I revisited that piece at a symposium about the justice’s jurisprudence, and her lecture has stayed with me since then.2 One of Ginsburg’s central arguments was that Roe had sparked criticism partly because the Court had “presented an incomplete justification for its action.” The Court’s 1973 decision had located the right to terminate a pregnancy exclusively in “a concept of personal autonomy derived from the due process guarantee” of the Fourteenth Amendment, rather than also in the then emerging sex-equality jurisprudence of the amendment’s Equal Protection Clause. For me, the most telling piece of Ginsburg’s criticism centers on thinking about the abortion right too narrowly. As Ginsburg put it, the “overriding issue” is not “state versus private control of a woman’s body for a span of nine months.” Rather, it is whether a woman has “charge of her full life’s course.” And because the Due Process Clause operates primarily to protect people from government interference, grounding the right to an abortion there does nothing to provide women with government assistance in exercising that right. Poor women have a right in theory but little access in fact.
Ultimately, the Court itself came to understand the connection between liberty and autonomy, although it tragically has never recognized the government’s responsibility to enable poor women to exercise their choice. Most strikingly, in 1992’s Planned Parenthood v. Casey, the joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter pointed to “the ability of women to participate equally in the economic and social life of the Nation,” which was “facilitated by their ability to control their reproductive lives,” as a core reason to preserve the heart of Roe.
Ginsburg saw the connection between liberty and equality in a wide range of cases. To take just one lesser-known example, consider her 1996 opinion for the Court in M.L.B. v. S.L.J. The case concerned the question of whether Mississippi could deny individuals the right to appeal the termination of their parental rights if they were unable to pay record-preparation fees (which in M.L.B.’s case would have amounted to more than $2,300). The Supreme Court held they could not. Ginsburg’s opinion recognized that the case implicated both equal protection and due process values. She explained that the case could not “be resolved by resort to easy slogans or pigeonhole analysis”; it implicated both the equal protection rights of individuals who would be treated differently “based solely on their inability to pay court costs” and the “liberty” interest, protected by the Due Process Clause, in maintaining a bond with their child.
M.L.B. also echoes a point the justice had made a dozen years before in her lecture: equality-based reasoning provides a basis for requiring government action to ensure that all individuals, including people who are indigent, can actually exercise fundamental constitutional rights. Ginsburg pointed out that a purely autonomy-based abortion right “places restraints, not affirmative obligations, on government.” She suggested that, had the Court “acknowledged a woman’s equality aspect” to the right to abortion, then the combination of equal protection and due process might have led it to recognize a governmental responsibility to provide funding for abortion-related health services.
There is one aspect of Ginsburg’s argument with which I want to express some reservations—doing so, to quote the justice’s own characterization in the essay itself, “tentatively and with trepidation.” By showing how women cannot become, in her words, “independent, self-sustaining, equal citizen[s]” unless they can make their own decisions about whether and when to bear children, Ginsburg actually also showed that abortion implicates more than private choice. Supporters of traditional gender roles were not wrong to see abortion as a threat to maintaining the subordinated position of women. In other words, appeals to equality, rather than quieting the waters stirred up by demands for autonomy, may actually roil them further.
Which kinds of liberty and which sorts of equality American society is prepared to recognize continue to be central questions in our law. One of the fascinating features of debates over the proper roles for men and women is that sometimes there seems to be more support for equality in the workplace—where members of different groups are actually in direct competition with one another—than in the sphere of private autonomy, where people are not seeking a scarce commodity like a good job. For example, while only 5 percent of Americans believe that gay men and lesbians should not have equal rights when it comes to employment opportunities, 31 percent of Americans think they should not have equal rights to marry. Here I think back to two of Ginsburg’s most forceful dissents, both written during the 2006 term.
In Gonzales v. Carhart, her dissent from a decision upholding a federal abortion statute excoriated the majority for disrespecting a “woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” The majority’s opinion, which justified itself by describing women as somehow too fragile to make difficult choices regarding second-trimester abortions, reinstated the gilded cage that Ginsburg as a litigator did so much to dismantle, and abortion rights continue to be restricted by a series of new laws. By contrast, her equally vigorous dissent in Ledbetter v. Goodyear Tire & Rubber Co., Inc.—in which the Court made it harder for women who were paid less than their male colleagues to bring suit—quickly bore fruit. Congress took up Ginsburg’s urge to “to correct th[e] Court’s parsimonious reading of Title VII” and enacted the first major legislation signed by President Obama—the Lilly Ledbetter Fair Pay Act of 2009.
And Ginsburg not only wrote about the connection between sex equality and liberty; she lived it. A decade ago she, two prominent female Supreme Court advocates, and I appeared on a panel at Georgetown University Law Center to discuss “Women and the Supreme Court Bar.” Before turning to the audience, the moderator asked whether we had any advice for female students who were considering a career in Supreme Court practice. The first three of us each talked about the kind of work we’d taken on, and about how we sought professional opportunities—opportunities that were in part open to us because Ginsburg paved the way. And then she spoke: “The luckiest thing that I ever did was to pick my life’s partner”—Marty Ginsburg, a brilliant lawyer in his own right who reveled in and supported her foundational work, leaving her free to pursue equality for us all.
With the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of “equal protection of the laws” than Ruth Bader Ginsburg. While Marshall, as director-counsel of the NAACP Legal Defense Fund, succeeded in dismantling Jim Crow segregation, Ginsburg, as the first director of the ACLU Women’s Rights Project, persuaded the Supreme Court that women and men, long treated differently under the law, must be accepted as equals.
Neither acted alone; they carried the torches of the civil rights and women’s rights movements, respectively. Their courtroom arguments were bolstered by broader political currents. But both achieved far-reaching, historic changes in constitutional law. And both did it incrementally, through careful, painstaking work, aimed at appealing to those not already with them. As Ginsburg said, “Fight for the things that you care about, but do it in a way that will lead others to join you.”
In the last years of her life, Ginsburg became an unwitting celebrity. An NYU law student began calling her “Notorious RBG” on her blog, after the hip-hop star Notorious BIG, and the name caught on. RBG T-shirts, mugs, earrings, bobblehead dolls, workout gear, and books all became best sellers. In 2018 both a documentary, RBG, and a Hollywood feature film, On the Basis of Sex, appeared, to popular and critical acclaim. At the unveiling of a portrait of Ginsburg at the Supreme Court, Chief Justice John Roberts quipped that his children asked him why he, too, didn’t have a rapper’s moniker.
Ginsburg grew up at a time when limits on women’s access to employment were widespread and largely unquestioned. When she was just out of college, she was denied a job because she was pregnant. When she entered Harvard Law School as one of only nine women in a class of more than five hundred, the dean, Erwin Griswold, asked her to justify taking a seat away from a man. She excelled academically but received no job offers from New York law firms upon graduation. A federal judge agreed to take her on as a clerk only after Gerald Gunther, a prestigious law professor, threatened that if the judge didn’t hire her, he would never direct another clerk to him. She broke many barriers, and her work made it possible for young women today to take for granted that they cannot lawfully be denied admission, jobs, or other benefits simply because of their sex. That’s radical.
But she was about the unlikeliest radical you’d ever meet. Shy to the point of awkwardness in personal interactions, she spoke quietly but with conviction and integrity. She picked her words carefully, whether in briefs, questions from the bench, dissents, or conversation.
When I was a law student in the 1980s and a recent convert to feminism, I wrote an article for an obscure law journal on Ginsburg’s litigation campaign at the ACLU to achieve equal protection for women. When she launched the campaign, in the early 1970s, the Supreme Court had long accepted sex-based differences, upholding laws that explicitly prohibited women from serving as lawyers, bartenders, or jurors. Knowing that change would require convincing a Court of nine men, she chose to bring a series of equal rights cases on behalf of male plaintiffs.
Many sex-based laws appeared to favor women over men, by, for example, giving widows automatic Social Security survivor benefits but extending the same benefits to widowers only if they proved that they had been financially dependent on their wives. Because such laws directly harmed men, Ginsburg rightly thought they might be more likely to trouble the all-male Court. And she often focused on lawsuits involving married couples, because she could show that while the laws benefited some women (such as widows), it simultaneously harmed others (such as women who died before their husbands and weren’t assured that their spouses would get survivor’s benefits). The real harm, Ginsburg made clear in her briefs, was that such laws reinforced stereotypes about women’s dependence, fragility, and need for protection—and men’s lack thereof. The strategy worked, as the Court recognized that sex-based distinctions were presumptively suspect.
In the article, I celebrated the brilliance of Ginsburg’s strategy but also advanced a critique of it that was influenced by Catharine MacKinnon, the feminist legal scholar. The focus on male plaintiffs and the deployment of arguments that women are the same as men, I argued, might have contributed to the Court’s failure in subsequent cases to recognize sex discrimination in situations where women and men were in some way different. For example, the Court held that the male-only draft, workplace rules that discriminated against pregnant employees, and a criminal law that punished boys but not girls for underage sex did not deny equal protection because women and men were physically different.
Presumptuously, I sent my article to Ginsburg, then a judge on the D.C. Circuit. She wrote back, thanking me for it but politely rejecting my critique. She insisted that the only realistic way to get the Court to recognize the wrong of sex discrimination was to start where men and women were in all material respects the same. As she later put it, “Real change, enduring change, happens one step at a time.” In my younger days, I bristled at the sense of caution.
Ginsburg subsequently offered a similar critique of Roe v. Wade, suggesting that the Court may have acted too precipitately, short-circuiting a nascent movement in state legislatures to recognize the right to abortion and thereby contributing to the backlash that continues to this day. Here, also, Ginsburg favored an incrementalist approach, which, she speculated, might have provoked less resistance and thereby secured more stable and lasting reform.
As a justice, too, she refrained from bomb-throwing. On a Court dominated by conservatives, she frequently found herself in dissent. But unlike some of her more rhetorical colleagues—in particular, Justice Antonin Scalia—her dissents did not aim barbs at the majority. Instead they coolly, methodically, and effectively dissected the ruling’s errors. With an eye toward the future, she often placed her emphasis on areas of agreement and avenues the majority decision left open.
Ginsburg entered the law at a time when men wielded virtually all political and economic power, women were barely taken seriously in the legal profession or by the law itself, and the statute books were shot through with sex-based laws. The world she has left behind was transformed by her work. But at every turn, she pursued change in small steps, with care and attention to her own imperative that one must always seek to bring others along. Her career illustrates that you can be radical and incrementalist at the same time; indeed, as she argued, it may be the only way to achieve enduring change.
She wasn’t always cautious, of course. In 1973 she made her first argument before the Supreme Court in a case challenging a federal rule that granted automatic spousal benefits to wives of members of the military but not to husbands of women who served in the few positions then open to them. Facing the nine male “brethren,” as they are called, Ginsburg closed her argument by quoting the suffragist and abolitionist Sarah Grimké:
In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
In response, Chief Justice Warren Burger, sounding a bit at a loss, could muster only “Thank you, Mrs. Ginsburg.” The Court ruled in her favor, 8–1.
The lecture, which was delivered on April 6, 1984, was later published as “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review, Vol. 63, No. 2 (1985). ↩
See my “Some Thoughts on Autonomy and Equality in Relation to Ruth Bader Ginsburg,” Ohio State Law Journal, Vol. 70, No. 4 (2009). ↩