With The Passing Of Ginsburg, The Left Loses An Icon

Law360 (September 18, 2020, 8:42 PM EDT) -- In the spring of 2007, Justice Ruth Bader Ginsburg issued a demand unusual for any U.S. Supreme Court justice. Speaking from the bench in clear, deliberate tones, she called on Congress to stamp out a decision backed by five of her conservative colleagues.

Justice Ginsburg in chambers in 2017.

In plain language, Ginsburg attacked the majority opinion that crushed longtime tire factory supervisor Lilly Ledbetter's case and made it tougher for workers to file pay discrimination suits, particularly if they stumbled upon a significant pay disparity only after years or decades on the job.

"The Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," Ginsburg said in her dissent in Ledbetter v. Goodyear Tire and Rubber Co.

Frustrated by the court's "cramped" interpretation of Title VII of the Civil Rights Act, the federal anti-discrimination law, Ginsburg also accused the five male justices who had signed onto the majority opinion of effectively ignoring workplace realities the law was supposed to cover.

"Certainly I think every woman related to Lilly Ledbetter's case. Every woman knew exactly what she encountered," Ginsburg told Law360 in a 2017 interview.

Susman Godfrey partner Arun Subramanian, who clerked for Justice Ginsburg that term, described the day as "bittersweet," especially on the elevator ride back to the chambers with the justice.

"We had lost the battle, but were determined to win the war," Subramanian wrote in a Law360 article reflecting on clerking for the justice, penned with a fellow former clerk.

"Today, the ball … lies in Congress' court," Ginsburg had said in her dissent. "The legislature has cause to … correct this Court's parsimonious reading of Title VII."

The Lilly Ledbetter Fair Pay Act became the first piece of legislation signed into law by President Barack Obama, and Justice Ginsburg prominently displayed a copy of it in her chambers.

Justice Ginsburg died of cancer on Friday at age 87. With her passing, the court's liberal wing loses her vote, her unique voice in the most politically divisive cases and her talent for having the last word.

From Advocate to Icon

If there had been more opportunities for female lawyers when she graduated at the top of her class from Columbia Law School in 1959, Ginsburg would likely have ended up retiring as a law firm partner. At least, that's a wry joke she had long made.

Ginsburg struggled to find a job after graduation, given the three strikes she had against her.

Justice Ginsburg speaks at Georgetown Law School in 2018. (AP Photo/Alex Brandon)

"First, I was Jewish, and the Wall Street firms were just beginning to accept Jews. Then I was a woman. But the killer was my daughter Jane, who was 4 by then," she told The New York Times in 2015.

In her ascent to one of the most coveted posts of the legal profession, she cleared high hurdles for women entering the law at the time, and built a stunning resume that included groundbreaking litigation before the high court.

Often called the Thurgood Marshall of the women's rights movement, Ginsburg was a remarkably effective advocate for gender equality in the 1970s. In that decade she not only became the first female tenured professor at Columbia Law School and a co-founder of the American Civil Liberties Union's Women's Rights Project, but also argued six — and won five — groundbreaking cases at the high court.

In those cases, including Frontiero v. Richardson , Weinberger v. Wiesenfeld and Califano v. Goldfarb , the Supreme Court for the first time began to strike down laws that treated women differently from men.

In Frontiero v. Richardson, Ginsburg scored a landmark high court ruling on behalf of female U.S. Air Force lieutenant Sharron Frontiero, striking down a federal law that gave fewer benefits and privileges to the families of female service members than were given to those of male service members.

In the 1975 case Weinberger v. Wiesenfeld she successfully argued that a gender-based distinction built into Social Security benefits similarly violated the right to equal protection under the Fifth Amendment. And in the 1977 ruling in Califano v. Goldfarb, the court found unconstitutional gender-based requirements for survivors' Social Security benefits.

"How fortunate I was to be alive and a lawyer when, for the first time in U.S. history, it became possible to urge, successfully, before legislatures and courts, the equal citizenship stature of women and men as a fundamental constitutional principle," Justice Ginsburg wrote in her 2016 book "My Own Words."

Her goals were radical for the time, but her litigation strategy was tactical and deliberate, qualities she displayed in spades after she was nominated to the D.C. Circuit in 1980 by President Jimmy Carter.

She spent 13 years on that appellate court, building a reputation as a moderate. In 1993, President Bill Clinton nominated Ginsburg to the Supreme Court seat vacated by the retiring Justice Byron White, remarking at the announcement of her appointment that she was known as one of the nation's "leading centrist judges."

"Judge Ginsburg has also proven herself to be a healer, what attorneys call a moderate," Clinton said at the time. "If this is a time for consensus-building on the Court, and I believe it is, Judge Ginsburg will be an able and effective architect of that effort." 

Justice Ginsburg at her confirmation hearing in 1993. (Michael Jenkins, Congressional Quarterly/Library of Congress.)

While the Rose Garden announcement of her nomination was well-received, Ginsburg reportedly was not Clinton's first choice, edging out fellow appellate court judge Stephen Breyer, among others, only at the last minute.

Clinton reportedly was concerned that women's rights groups could only muster tepid support for Ginsburg because of her centrist reputation, despite her legal crusade for gender-blind justice in the 1970s, as Jane Sherron De Hart describes in her recent biography of the justice, "Ruth Bader Ginsburg: A Life." Modern feminism had in some sense passed her by, and her public suggestion that a more narrow ruling in Roe v. Wade may have served abortion rights better in the long run was not viewed favorably by some female activists.

In her years on the Rehnquist Court, Justice Ginsburg was largely an institutional player, rarely reading a dissent from the bench. The Rehnquist Court was not only deeply divided but also had three conservative appointees who could be swing votes: Justices Sandra Day O'Connor, Anthony Kennedy and David Souter.

In those years, Ginsburg's role was tempered, as it had been on the D.C. Circuit. She often voted as a moderate and joined the majority when she could, frequently finding ways to agree with the centrist judges on the court, as De Hart describes.

Ginsburg did grab opportunities to make her mark on women's rights when they arose. She carefully crafted the majority opinion in United States v. Virginia , resulting in a landmark 7-1 ruling that the Virginia Military Institute's male-only admissions policy was unconstitutional.  

And she seemingly had a persuasive impact on the chief justice on those issues, resulting in his majority opinion in a Family Medical Leave Act case that read "like it was written by a feminist," as Ginsburg put it in a 2017 interview with Law360

But in 2005 the death of Justice William Rehnquist and the retirement of Justice O'Connor, who had been a friend as well as a crucial swing vote, changed everything.

The court lurched to the right with the rapid-fire appointments of Chief Justice John Roberts and Justice Samuel Alito. And Ginsburg's resulting shift in tactics propelled her into a new and far more prominent role.

Playing the Long Game

Over her more than 25 years on the high court, Justice Ginsburg underwent a stunning evolution from junior justice to pop culture icon.

Jocularly known as the "Notorious R.B.G.," a play on the name of the late rapper Notorious B.I.G., Ginsburg saw her image shift along with the court's center, as she began to write quietly searing rejoinders to high-profile majority opinions handed down by the court's conservative majority.

The 2006 term, the first full term with both Roberts and Alito on the bench, clearly stirred something in Ginsburg, who read not one but two dissents aloud from the bench that term, in the Ledbetter pay discrimination case and the abortion case Gonzales v. Carhart .

In her previous years on the court, Ginsburg rarely read a dissent aloud, and never two in one single term. The 2006 term "will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it," New York Times reporter Linda Greenhouse wrote at the time.

In the following years, as the conservative-dominated court began to hand down opinions on voting rights, affirmative action and employment discrimination that frustrated the liberal minority, Ginsburg increasingly turned to bench dissents.

By the end of the 2012 term, she had read 10 more dissents from the bench, including four in the 2012 term alone. Her actions caught the attention of lawyers, scholars, journalists and liberals who remade the image of the petite, soft-spoken justice into a liberal firebrand.

Yet Ginsburg was hardly the court's most frequent dissenter, and her dissents were always tactical and largely impersonal critiques of the majority opinion, unlike, for example, the more fiery dissents penned by the late Justice Antonin Scalia. 

Ginsburg had suggested she modeled herself on the practices of Justice Oliver Wendell Holmes, who often was called "The Great Dissenter," even though he dissented less often than most of his fellow justices.

"When he elected to dissent, he did so to great effect," Ginsburg told law students in her remarks on the role of dissents in June 2013. "In the years I am privileged to serve on the court, I pray that I will be granted similar wisdom in choosing my ground."

Lady Justice

Justice Ginsburg had a snappy retort to those who ask when the high court will have enough women on the bench: "When there are nine."

Her death is sure to set off a bruising political battle over who will replace the liberal stalwart, but it will also spark debate over whether a man or a woman should step into a Supreme Court seat long held by a pioneering female jurist.

Justice Ginsburg, center, with Justices Sonia Sotomayor, left, and Elena Kagan, ahead of Kagan's Investiture Ceremony in 2010. (AP Photo/Steve Petteway)

With the addition of Justices Sonia Sotomayor and Elena Kagan, the female justices are gradually shifting the public perception of what a Supreme Court justice might look like, Ginsburg had said, and showing the many ways that a female justice might argue, might write, or might appear in public.

Before the coronavirus pandemic shut down most public events, Ginsburg was often seen touring the country like a rock star, speaking at law schools or other legally minded venues, or before large synagogues or the 92nd Street Y in Manhattan. In January 2018 she was at the Sundance Film Festival for a premier of a documentary on her career. In July she appeared at a post-performance chat in New York after a Sunday matinee of the off-Broadway comedy "The Originalist" about Justice Scalia.

While Ginsburg seemed to sincerely enjoy the attention, earlier in her career she often said she was merely trying to keep up with the busy public schedule of her one-time colleague, retired Justice Sandra Day O'Connor, the first woman on the high court, who firmly believed that it was part of her mission to be a highly visible justice.

"As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we'll all be better off for it," O'Connor once said.

Ginsburg and O'Connor were often on different sides in the cases that came before the Supreme Court, but Ginsburg has said one of the worst periods of her Supreme Court tenure was when O'Connor retired.

"I was there all alone, and so they saw this little woman and larger men," Ginsburg told Law360 in 2017. "But now we're all over the bench."

Upon her nomination to the high court, Ginsburg said she hoped it would help bring about "the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."

The legal profession has at least made some progress since she made her last oral argument as a litigator before the high court in the 1978 case Duren v. Missouri , which examined laws covering when women serve on juries.

Wrapping up her argument that gender-based differences for jury selection were unconstitutional, Ginsburg was preparing to sit down when then-Justice Rehnquist jumped in with an odd quip.

"You won't settle for putting Susan B. Anthony on the new dollar, right?" he asked, sparking some laughter in the courtroom.

Ginsburg did think of a good comeback, but only in the cab on the way back to the train station after the argument, she confessed at a 2013 Columbia Law School talk.

"No, Mr. Justice Rehnquist, tokens won't do," she said, laughing. "Wish I had said that for the record."

--Editing by Pamela Wilkinson.

For a reprint of this article, please contact reprints@law360.com.

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