With the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of “equal protection of the law” than Ruth Bader Ginsburg, who died on Friday. Where 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 buoyed 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 unlikely celebrity. 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. Chief Justice John Roberts quipped, at the unveiling of a portrait of Ginsburg, that his children asked him why he, too, didn’t have a rapper’s moniker. She deserved every bit of the praise. One of only nine women in a class of about five hundred at Harvard Law School, she broke many barriers, and her work made it possible for young women today to take for granted that they cannot 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 awkward in personal interactions, she spoke quietly but with evident conviction and integrity. She picked her words carefully, whether in briefs, arguments, questions from the bench, dissents, or conversations.
When I was a law student in the 1980s, 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 Ginsburg began it, in the early 1970s, the Supreme Court had long accepted sex-based differences as natural, upholding laws that explicitly prohibited women from serving as lawyers, bartenders, or jurors. Knowing that if she was going to change this she’d have to convince a court exclusively comprising men, she chose to bring a series of equal rights cases on behalf of male plaintiffs.
Many sex-based laws seemed 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 dependent on their spouse. Because such laws directly harmed men, Ginsburg 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 the while the law benefitted some women (widows), it simultaneously harmed others (women who die before their husbands, and weren’t assured that their spouses would get the same 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.
In the article, I celebrated the brilliance of Ginsburg’s strategy, but also advanced a critique of the approach, influenced by Catherine MacKinnon, the feminist legal scholar. The focus on male plaintiffs, and 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, comported with 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.” At the time, 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, she argued, to the backlash that we are living with 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, but instead coolly, painstakingly, and effectively dissected the ruling’s errors, and often placed her emphasis on areas of agreement and avenues the majority decision left open.
RBG achieved real change. She 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. She used her skills to elevate the status of women in the United States forever. The world she has left behind was transformed by her work. But at every turn, she pursued change methodically, with care and attention to her own imperative that one must always seek to bring others along. Her career illustrates that one 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 1972, 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 justices, 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.