Supreme Court Justice Ruth Bader Ginsburg passed away from complications from pancreatic cancer on Friday, September 18, 2020. Justice Ginsburg inspired millions and became a beloved icon in a way that is truly uncommon for a jurist. She was the subject of a documentary, a biopic, and an opera. She earned wide acclaim for her legendary octogenarian workouts and her courageous battle with cancer, and, befitting her Brooklyn roots, was bestowed the moniker “Notorious R.B.G.”
Her determination and her brilliance were evident to legal observers long before young girls dressed as her for Halloween and her face and initials were emblazoned on memes, coffee mugs, and tote bags. Her career, both as a litigator and as a judge, was largely dedicated to bringing to life the Fourteenth Amendment’s promise of equal protection under law and advancing gender equality.
While a professor at Rutgers Law School, she co-authored appellant Sally Reed’s briefs to the U.S. Supreme Court in Reed v. Reed (1971). Sally Reed sought to serve as the administrator of her late son’s estate, but an Idaho statute provided specifically that in the appointment of an administrator, “males must be preferred to females,” resulting in the appointment of her ex-husband as administrator. Ginsburg’s reply brief to the Supreme Court argued:
With respect to the parties before the Court, the issue raised by appellant is as vital now as it was at the inception of this controversy. The federal question presented is at least as substantial as any this Court has heard: the constitutional right of a person, who is a woman, to be judged on the basis of her individual qualifications, rather than pre-judged by a male legislature’s assignment of second rank status to all members of the female sex.
. . .
Section 15-314 of the Idaho Code, and myriad statutes cast in the same mold still flourishing across the country, have survived into the 1970’s because this Court has not yet settled the question whether the basic law of our land establishes the principle of equality before the law without regard to sex.
The myth that women are inherently disqualified for full participation in public life as independent persons is no longer acceptable. Yet this Court’s silence has deferred recognition by the law that women are full persons, entitled as men are to due process guarantees and the equal protection of the laws. The time to break the vicious cycle which sex discriminatory laws create is overdue. If a legislature can bar a woman from service as a fiduciary on the basis of once popular, but never proved, assumptions that women are less qualified than men are to perform such services, then the myth becomes insulated from attack, because the law deprives women of the opportunity to prove it false.
Sally Reed awaits a day in Court on her application to be appointed administrator; all women await this Court’s affirmation that the Constitution guarantees to them, together with men, equal justice under the law.
The Supreme Court in Reed finally held, 103 years after its ratification, that the Fourteenth Amendment’s equal protection clause operated to protect women.
Justice Ginsburg understood that laws that pigeonhole individuals into normative gender roles are detrimental to equality, and, in many cases, she represented men in cases challenging laws purporting to favor women over men. In Weinberger v. Wiesenfeld (1975) she succeeded in overturning a provision of the Social Security laws that provided widows, but not widowers, special benefits for caring for minor children. In Craig v. Boren (1976), she persuaded the Court to invalidate a state statute allowing women to purchase 3.2% alcohol beer at age 18, but not men until 21, based on the assumption that women were less likely to drive drunk than men. In Duren v. Missouri (1979), she successfully argued against a Missouri statute that automatically excluded women from jury service unless they submitted a declaration of willingness to serve, resulting in less than 1% of jurors being female. The Court held that a system that categorically kept women off juries violated a criminal defendant’s Sixth Amendment right to a “fair cross-section.” [1]
Justice Ginsburg’s ability to create change and advance equality through persuasion was not limited to arguments before the Court. In 1977, she co-authored an op-ed in the New York Times criticizing a Supreme Court opinion holding that an employer’s disability benefits program that provided employees with benefits for all disabilities except those arising from pregnancy or childbirth was somehow not discrimination based on sex. In the op-ed, she advocated for Congress to overturn this decision, and, less than a year later, President Carter signed the Pregnancy Discrimination Act into law.
After 13 years of service as an appellate judge, Justice Ginsburg ascended to the Supreme Court after being nominated by President Clinton and confirmed by a 96-3 vote. She was only the second woman ever to serve on the high court.
She wrote the Court’s majority opinion in United States v. Virginia (1996) striking down Virginia Military Institute’s males-only admission policy on equal protection grounds. Virginia argued that admitting women to VMI would require “radical” changes that would “destroy” the school’s unique adversative model of military education, because, according to its expert witnesses “males tend to need an atmosphere of adversativeness” while “females tend to thrive in a cooperative atmosphere.” The state offered to create a separate military academy on the campus of a private women’s college, which would de-emphasize the military aspects and instead use a “cooperative method” of education “which reinforces self-esteem.” Justice Ginsburg’s opinion, citing the Reed v. Reed precedent her advocacy helped establish, emphasized that courts must be skeptical of justification for government-enforced distinctions based on sex that rest on generalizations, perceived “tendencies,” and “fixed notions concerning the roles and abilities of males and females.”
As perhaps the most liberal justice on a right-leaning court, Justice Ginsburg often found herself in the minority, but understood the persuasive power of a well-argued dissent. Her dissenting opinions, delivered while wearing one of her famed “dissent collars,” shaped the nation’s thinking about the issues addressed in the Supreme Court cases, and, like her New York Times op-ed, had the power to create change.
The most vivid example of the power of Justice Ginsburg’s dissents pertained to the time limits for lawsuits under federal antidiscrimination statute Title VII. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), a female employee discovered after 19 years that she had been paid less than all of her 15 male peers based on decisions early in her career that she believed were discriminatory. The 5-4 majority found that the employee had lost her right to sue because she did not file her complaint within 180 days of the discriminatory decision. Justice Ginsburg, in her dissent, which she read from the bench, argued that each paycheck was a new allegedly discriminatory act, giving rise to a new right to sue. She closed her dissent: “Once again, the ball is in Congress’ court. . . the Legislature may act to correct this Court’s parsimonious reading of Title VII.”
While her logic did not carry the day at the Court, it did eventually prevail: President Obama signed the Lilly Ledbetter Fair Pay Act into law, adopting Justice Ginsburg’s principle, on January 29, 2009.
In recent years, Justice Ginsburg authored important employment law decisions. In Mount Lemmon Fire Dist. v. Guido (2018) she wrote for a unanimous Court in holding that States and their political subdivisions are “employers” liable under the Age Discrimination in Employment Act even where they have fewer than 20 employees. In Fort Bend County, Texas v. Davis (2019), she held, again for an unanimous Court, that Title VII’s requirement that plaintiffs file a complaint with the EEOC before suing is not jurisdictional, meaning that an employer’s failure to timely raise the defense that the plaintiff failed to first go to the EEOC will cause that defense to be lost.
As when her friend and ideological rival Justice Antonin Scalia died in 2016, Justice Ginsburg’s passing creates a vacancy on the high court in a presidential election year. In 2016, the Republican-held Senate did not conduct hearings or a vote on President Obama’s nominee Merrick Garland, but instead held the Supreme Court seat open through the election on the premise that the public should have a say in who replaced Justice Scalia: that if President Obama was succeeded by a Republican, that would signal that the public wanted a conservative justice appointed to the court. Although Justice Ginsburg’s death is several months closer to the election than Justice Scalia’s, it appears likely that the vacancy will be filled before the January 2021 inauguration for the simple reason that the Senate is controlled by the same party as the presidency. On Saturday, September 26, 2020, President Trump nominated Judge Amy Coney Barrett of the Seventh Circuit.
No matter how hard-fought the confirmation battle may be, Justice Ginsburg’s shoes will undoubtedly be more difficult to fill than her seat.
[1] At oral argument, the state resorted to arguing that exempting women from jury service served a state interest in “safeguarding the important role played by women in family life.” As Justice Ginsburg’s opening brief noted, the Court had already rejected this rationale four years prior.
This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.