Justice Ruth Bader Ginsburg

By Harry L. Munsinger, J.D., Ph.D.

Joan Ruth Bader was born March 15, 1933, in Brooklyn, New York, into a Jewish family. Her religious beliefs remained a fundamental part of her identity. Fighting gender discrimination against both women and men would later become a hallmark of her career. Her mother was diagnosed with cancer when Ruth entered James Madison High School, and died just before Ruth graduated. Ruth’s mother had told her to be independent, something few girls were encouraged to do at that time. Ruth was offered a scholarship to attend Cornell

University, where she met her future husband, Martin Ginsburg. Ruth was a member of Phi Beta Kappa and the top female student in her class. She studied hard and made excellent grades. Martin, an Officer in the Army Reserves, was called to active duty and the Ginsburgs spent two years in Oklahoma, where they welcomed their first child, Jane.

After Martin completed his active duty service, the family moved to Boston. Martin returned to Harvard Law School, now joined by Ruth a year behind him. Ruth served on the Harvard Law Review, but she transferred

to Columbia Law School during her final year to be with Martin, when he took a job with a New York firm. Ruth graduated at the top of her class, but no law firm would hire her because she was a mother. Gerald Gunther, a constitutional law professor at Columbia, pressured Judge Edmund Palmieri of the United States District Court for the Southern District of New York to offer the young Ruth Bader Ginsburg a clerkship in 1959. After the clerkship, Ginsburg worked as associate director of Columbia Law School’s Project on International Procedures, and she was invited to co-author with Anders Bruzelius a book entitled Civil Procedure in Sweden. When she returned to New York, Ginsburg taught civil procedure at Rutgers School of Law and spoke at international conferences about her work.

In 1972, Ginsburg joined the Women’s Rights Project of the American Civil Liberties Union (“ACLU”). She established three goals for the project: (1) educating the public; (2) changing discriminatory laws; and (3) filing cases to stop gender discrimination. She attacked gender discrimination in education, credit, mortgages, housing, and military service. Rather than trying to end all gender discrimination at once, Ginsburg developed a strategy of overturning specific state statutes, one at a time.

For years, feminists argued that the United States needed a Constitutional Equal Rights Amendment (ERA) that said: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The ERA was introduced in 1923, but it did not make it out of Congressional committee during those early years. When the ERA was finally

passed by Congress and sent to the states for ratification, not enough legislatures approved the amendment, so it failed. Ginsburg reasoned that, rather than trying to amend the Constitution, "it would be more productive to argue that women are people and already have a right to equal protection under the Fourteenth Amendment, which promises equal treatment for all people. With this new strategy, Ginsburg began looking for cases that could be brought under the Equal Protection Clause of the Fourteenth Amendment.

Reed v. Reed. One of the first cases Ginsburg argued before the United States Supreme Court was the 1971 case of Reed v. Reed, which challenged an Idaho law that explicitly preferred men when selecting who should administer the estate of a person who died without a will. In a unanimous decision, the Supreme Court ruled that Idaho’s dissimilar treatment of women violated the Equal Protection Clause of the Fourteenth Amendment. Once she had convinced the Supreme Court that women should be treated the same as men, Ginsburg set out to find a case where men were the victims of gender discrimination, so that she could apply the doctrine of equal treatment to men as well as women.

Moritz v. Commissioner of Internal Revenue. Ginsburg’s husband Martin found the ideal case of gender discrimination against men in Moritz v. Commissioner of Internal Revenue, and Ruth convinced the ACLU to fund the case. The facts were simple: Moritz, an unmarried male, needed a caretaker for his invalid mother so that he could continue working as an accountant. He could have taken a tax deduction for the expenses for a caretaker if he had been a woman, a widower, divorced, or had a wife who was incapacitated, but the Tax Code prohibited men who had never been married from taking the deduction. Moritz deducted $600 for the care of his invalid mother anyway, but his claim was denied. Ginsburg lost the case in Tax Court, but appealed to the United States Court of Appeals for the Tenth Circuit, which ruled in 1972 that section 214 of the Internal Revenue Code was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it discriminated against Moritz on the basis of his gender. The Supreme Court denied review, leaving the Tenth Circuit's opinion intact.

Frontiero v. Richardson. In Frontiero v. Richardson, a 1973 case, Ginsburg convinced the Supreme Court that not allowing military dependent status to the husband of a female Air Force officer was unconstitutional gender discrimination. The wives of male service members were automatically afforded “dependent” status, which allowed them to access benefits such as housing and medical care, but female service members had to prove that their male spouses were actually financially dependent before receiving those benefits. In practice, this meant that male and female officers were compensated differently, based solely on their gender.

Other Gender Discrimination Victories. In 1975, Ginsburg argued in Weinberger v. Wiesenfeld that denying Social Security benefits to a husband who had never worked was contrary to the Equal Protection Clause of the Fourteenth Amendment because women who had never worked were eligible for Social Security benefits from their husbands. The Supreme Court agreed. In Califano v. Goldfarb, a 1979 case, she asserted before the Supreme Court that the Social Security Administration could not deny survivor benefits to widowers based on a different standard than the one applied to widows. She won that case. Finally, in Duren v. Missouri, a 1979 case, she argued successfully that women should not be treated differently from men in selection for jury duty. The Supreme Court ruled that automatically excluding women from jury duty on their own request violated the Sixth and Fourteenth Amendment guarantees of a jury chosen from a cross-section of the community.

In 1978, Congress passed the Omnibus Judgeship Act, increasing the number of federal judges in America and allowing women and minorities to be appointed to many of the new judgeships. Ginsburg was spending 1977-78 as a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University in Palo Alto, California, working on an article about her battles against gender discrimination. On April 14, 1980, President Jimmy Carter nominated her to the United States Court of Appeals for the District of Columbia Circuit in Washington, D.C., and she was confirmed by the Senate. During her tenure on that court, Ginsburg formed close friendships with conservative judges Robert Bork and Antonin Scalia and earned a reputation as a moderate jurist.

Ginsburg served thirteen years on the Court of Appeals for the D.C. Circuit until, on June 14, 1993, President Bill Clinton nominated her to the United States Supreme Court. During her testimony before the Senate Judiciary Committee, Ginsburg refused to answer questions about her views on the constitutionality of executions because she felt the issue might come before the Court, and she did not want to prejudice a case. This tactic established the “Ginsburg precedent,” which has been used by Supreme Court nominees ever since.

As a Supreme Court Justice, Ginsburg always wore a jabot (an ornamental ruffle) with her judicial robes during oral argument. Supreme Court experts soon noticed that Ginsburg wore different jabots depending upon whether she was in the dissent or in the majority of the cases being announced. When she dissented, she wore a black jabot with gold embroidery and faceted stones. When she was in the majority, she wore a crochet yellow and cream jabot with crystals, which had been a gift from her law clerks.

Perhaps the most surprising friendship of two Supreme Court Justices was between Ruth Bader Ginsburg, a liberal feminist, and Antonin Scalia, a died-in-the-wool conservative. Even though they were generally on opposite sides of legal arguments and Supreme Court opinions, they genuinely liked each other. Ginsburg found Scalia intelligent and amusing, and he returned the compliment by referring to her as an intelligent and considerate woman. They shared a love of opera and people who could make them laugh. They got along because they never talked legal or political issues when they were together. Ginsburg’s friendship with Scalia did not extend to some of the other conservative Supreme Court Justices.

Reed v. Farley. Ginsburg’s first authored Supreme Court opinion concerned a criminal defendant’s right to a speedy trial. Soon after she joined the Court, Justice Ginsburg authored a five-to-four majority opinion in Reed v. Farley, a 1994 criminal case in which Reed appealed his conviction because the trial was not held within 120 days after his arrival in a new jurisdiction. The Court concluded that failure to hold Reed’s trial within the 120- day window was not relevant because he failed to object to the delay and suffered no harm as a result.

Thompson v. Keohane. Ginsburg’s next authored opinion was Thompson v. Keohane, a 1995 case in which the Court considered whether a state court’s determination that Thompson was not “in custody” when he confessed was “a finding of fact, warranting a presumption of correctness, or a matter of law calling for independent review in federal court.” Thompson had confessed to Alaska state troopers that he had murdered his wife, and he was convicted based on his tape-recorded confession. He challenged the conviction to a federal court on petition for writ of habeas corpus. The State argued that deciding whether Thompson was “in custody” at the time he confessed was a factual determination and not subject to review by a federal court. However, in a 7-2 decision, the Supreme Court held that “whether a suspect is ‘in custody,’ and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review,” not a presumption of correctness.

United States v. Virginia. Three years after she joined the Court, Ginsburg authored the 1996 majority opinion in United States v. Virginia, a case involving gender discrimination by Virginia Military Institute (“VMI”). At issue was a state court ruling that VMI’s male-only admission policy was unconstitutional and an offer by the State of Virginia to create the Virginia Women’s Institute for Leadership as a parallel program open only to women. The state court had approved the plan to offer a separate women’s program at VMI, but the United States appealed to the Supreme Court, arguing that a women-only school does not satisfy the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision authored by Justice Ginsburg, the Court held that a separate but equal program for women at VMI was unconstitutional. In this case, Justice Thomas recused himself because he had a son attending VMI, and Justice Scalia dissented.

Stafford Unified School District v. Redding. In 2009, Justice Ginsburg joined an 8-1 majority opinion in Stafford Unified School District v. Redding, which held that school administrators overstepped their authority when they ordered that a thirteen-year-old girl be strip searched for drugs. The young girl was allowed to wear only her undergarments while a female officer searched her person for drugs. Prior to the Court’s issuing its decision, Ginsburg gave an interview in which she stated that the male Justices could not understand how traumatic it could be for a thirteen-yearold girl to be strip searched because they had never been a thirteen-year-old girl. Ginsburg's position as the only woman on the Court at the time was described as “poignant,” and this interview was used an example to advocate for more diversity on the bench. Ultimately, the Court ruled that the search was unreasonable under the Fourth Amendment, and that Redding's suit against the school could proceed, although she could not sue the persons who had ordered the strip search in their individual capacities.

Ginsburg disliked writing dissents because that meant she had failed to convince four other Justices of her legal theory about a case. However, when it was not possible for her to join the majority because she disagreed fundamentally with majority’s legal reasoning, Ginsburg’s only option was to write a strong dissent that might change the legal community’s thinking in the future. She reasoned that sometimes a Justice has to stop arguing with her colleagues and begin educating the public and the legal community by writing a well-argued dissent. Her most famous dissent was in Bush v. Gore.

Bush v. Gore. Bush v. Gore placed the Presidency of the United States into the hands of the Supreme Court. The Presidential election of 2000 was so close that it came down to a handful of votes in Florida, and the political fighting ended when the United States Supreme Court halted the state-wide Florida vote recount, effectively handing the election to George W. Bush. The Court could have refused to hear the case, leaving the decision to the state Supreme Court, but the Justices voted to accept the case. The Court ruled that the Florida recount violated the Equal Protection Clause of the Fourteenth Amendment because different counties in Florida were using different criteria when counting votes and that violated Bush’s civil rights.

The decision in Bush v. Gore was 5-4, with Ginsburg writing one of the four dissents. She argued that federal courts routinely defer to state high courts’ interpretations of their own laws and should have followed that precedent in this important case because deference to state courts is at the core of federalism. She accused the conservative Justices of being hypocrites by abandoning states’ rights when that tactic suited their political agenda.

Gonzales v. Carhart. Three years later, Ginsburg authored a significant dissent in an abortion case. The Partial-Birth Abortion Ban Act was signed into law in 2003, and Dr. Carhart, who performed partial-birth abortions, sued to stop the law from taking effect. He argued that the act would ban many abortions and, therefore, place an undue burden on a women’s right to privacy. A federal district court agreed and ruled the Act unconstitutional. The government appealed to the Eighth Circuit, which agreed with the lower court and ruled the Act unconstitutional. The case went to the United States Supreme Court in 2007, which ruled 5-4 that the Partial-Birth Abortion Ban Act was constitutional and did not place an undue burden on a woman’s right to an abortion because the Act applies only to a specific, narrow type of abortion performed near the end of a pregnancy.

Ginsburg wrote a passionate dissent, arguing that the Partial-Birth Abortion Ban Act placed unreasonable restrictions on a woman’s right to privacy. She stated that the Act’s restrictions limited a woman’s ability to determine her own life course and enjoy full citizenship. Ginsburg argued that the majority’s assumption that women are emotionally fragile and subject to depression and regret after having had an abortion was an outdated idea that had been discredited by modern science. She asserted the Act was an effort to chip away at the right to privacy which has been upheld by the Supreme Court and is central to the lives of women.

Shelby County v. Holder. In Shelby County v. Holder, a 2012 case, Ginsburg dissented when the majority ruled that part of the Voting Rights Act of 1965, which required some states to receive prior federal clearance before they could change their voting procedures, no longer applied because these states had stopped voter discrimination. In a heated dissent, Ginsburg wrote that getting rid of preclearance for certain Southern states because it had worked in the past was like throwing away your umbrella because you were not getting wet today. She argued that without the umbrella of preclearance, Southern states would change their voting procedures to discriminate against minority groups.

During her last years on the Supreme Court, Ruth Bader Ginsburg became a favorite of feminist progressives and famous for reading her dissents from the bench. She faced serious health issues during her later years on the Court. After Ginsburg underwent recurring treatments for cancer, several legal experts suggested she resign and give President Obama the opportunity to appoint a liberal successor while he was in office. However, she liked her job too much to resign, and because of seniority, she had significant power within the Court. As the most senior liberal Justice, she assigned cases when the Chief Justice was in the minority.

Ginsburg developed several maxims during her life that guided her choices. Among them were “pick your battles”; “don’t burn your bridges”; “work on what you believe in”; “set a goal and work for it”; “don’t be afraid to be a leader”; “develop and enjoy a sense of humor”; and “do what makes you happy”—sound advice for living a full and productive life. In 2016, Ginsburg published a book about her life entitled My Own Words. Her book made the New York Times bestseller list at No. 12 later that year. In 2018, she expressed support for the Me Too movement in America, and she personally encouraged women to speak out about their experiences with sexual harassment and assault. She said that women had been silent too long, and that it was time for them to publicly describe their experiences with sexually aggressive men. Ginsburg reported that, when she was in college, a chemistry professor had offered to give her the answers to an exam in return for sex, and that she was disgusted by the offer.

While working at the Women’s Rights Project, Ginsburg developed a plan and worked all her life to gain equal legal and economic rights, sexual freedom, and access to contraception and abortion for women. She worked hard and made enormous progress toward gender equality through teaching, writing, and Supreme Court opinions. After two conservative Republican Justices were appointed to the Court, creating a narrow conservative majority, Ginsburg feared that her proudest achievements would be reversed if she resigned, so she decided to stay on the Court to protect her legacy of equal justice for women. She believed racial justice, women’s reproductive rights, access to affordable health care, and worker protections were under attack by conservatives, and she was determined to stay on the Court as long as possible to protect those civil rights.

In 1999, Ginsburg was diagnosed with colon cancer, the first of several struggles with the dreaded disease. She endured surgery, chemotherapy, and radiation, but she never missed a Court session at that time. She became physically weaker because of the chemotherapy, and she began working with a personal trainer to improve her fitness. In 2009, Ginsburg was diagnosed with pancreatic cancer, underwent treatment, and returned to the bench to assume fulltime work. In 2018, she fell and fractured three ribs. The CT scan of her ribs revealed cancerous nodules in her left lung, and part of that lung was removed at Memorial Slone Kettering Cancer Center. While undergoing this treatment and during her recovery, she missed oral arguments for the first time in her tenure. In 2019, she endured three weeks of radiation therapy for another tumor in her pancreas, and in 2020 her cancer recurred. Rather than resign, she chose to remain on the Court so long as she could do her job. She died of complications from cancer on September 18, 2020.