Ruth Bader Ginsburg: A Life
By Jane Sherron DeHart
Penguin/Random House: 2018
2018 was an anxious year for progressive Supreme Court watchers. In October 2018, the U.S. Senate confirmed Brett Kavanaugh to the Court following an explosive confirmation process in which Dr. Christine Blasey Ford accused Kavanaugh of an attempted rape in high school. That episode inflamed the American culture wars as we navigate the age of Trump: while Kavanaugh’s defenders minimized Dr. Ford’s claims (including the President, who mocked her at a public rally), the rest of the country watched in horror as Kavanaugh won confirmation after melting down before the Senate, cementing a 5-4 conservative Supreme Court majority that could govern the American legal system for decades. If Kavanaugh—a Federalist Society conservative who previously worked for President George W. Bush—discharges his duties as expected, this will be the first conservative firewall at the Supreme Court since the 1930s, when the Court repeatedly struck down New Deal legislation.
A month after Kavanaugh joined the Court, the progressive community gasped as Justice Ruth Bader Ginsburg cracked three ribs after falling in her chambers at the Supreme Court. Justice Ginsburg is the most well-known justice, now a folk-hero as her firebrand dissenting opinions have drawn attention to the 85-year-old feminist who has already survived 2 bouts of cancer but works as hard as women half her age in a seeming effort to outlast the Trump administration and prevent the incendiary President from appointing a third conservative justice to the Court, which may soon rule on the legality of the Mueller investigation, Trump’s presidential authority and general civil rights issues, including the rights of gays, lesbians and transgender employees.
This is a good time for a solid biography of Justice Ginsburg. We now have one. Jane Sherron DeHart, an historian specializing in women’s studies, has authored a readable and engaging biography that traces Ginsburg’s life from her Brooklyn childhood to the nation’s highest court. The book also outlines the trajectory of civil liberties over the last 45 years, demonstrating how Ginsburg almost single-handedly persuaded the Supreme Court in the 1970s to expand women’s rights under the Equal Protection Clause, which had never previously been interpreted this way.
From childhood, Ginsburg was a brilliant and driven student who lost her mother to cancer on the eve of her high school graduation but excelled at Harvard and Columbia law schools, one of the few women in her class during the 1950s. DeHart captures the sexist atmosphere for female law students at the time, some of whom were openly ridiculed in class. By graduation, she had already married Martin Ginsburg, who went on to become an influential tax lawyer and played a key role in marshaling support for his wife’s judicial aspirations. Yet, that goal was decades away when Ginsburg graduated at the top of her class. Landing a judicial clerkship—the holy grail for law graduates who then springboard to large law firms or a law professorship—was difficult. One influential judge, Learned Hand, did not want to hire Ginsburg because, as “a gentleman of the old school, he knew that it was highly impolite to curse in front of a lady, and he had no incentive of censoring his salty language,” DeHart writes. One of Ginsburg’s law professors convinced another federal judge to give her a chance.
Many top-shelf lawyers head straight to academia following law school. These days, it’s usually a matter of choice. Ginsburg did it because she could not find a job. Many law firms did not want to hire women or Jews. Congress had not yet passed the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of gender and religion. After a few years teaching at Rutgers Law School, Ginsburg took an interest in women’s rights litigation, appellate practice in particular, where courts issue precedents that bind the lower courts. She also taught a course in sex discrimination and the law. When Ginsburg took on this work in the late 1960s, women had few legal rights. She and other pioneers designed law school courses, but there was little case law for students to study on the subject of women’s rights. That would soon change.
While the legal landscape was barren in this area, the tools were in place for enterprising lawyers working to carve out new protections for women. The Civil Rights Act was still a new statute, but the Supreme Court did not start issuing rulings that definitively interpreted the law until the 1970s. And there was always the Fourteenth Amendment’s Equal Protection Clause. At the time, heightened protections under that provision mostly dealt with racial discrimination, thanks to Thurgood Marshall, who as chief counsel for the NAACP in the 1940s and 1950s repeatedly struck down racial barriers and argued the seminal Brown v. Board of Education, which in 1954 held that school segregation violates equal protection. Ginsburg did not know it, but she would emulate Marshall as a civil rights trailblazer and then as Supreme Court justice.
Ginsburg affiliated with the ACLU, where lawyers were influenced by the social movements of the 1960s to litigate their way to social change. Looking for a test case, Ginsburg’s husband found one through a tax dispute where the IRS offered income tax deductions for unmarried women but not unmarried men. Ginsburg used this and other cases to embark on a strategy. Take on the right cases that could lead to a positive result. Each victory would become a building block for future cases, just as Marshall had done with racial discrimination cases. Fortunately, Ginsburg mostly won her cases, many of which challenged laws addressing trusts and estates, arcane administrative rules and the drinking age. You set your precedents where you can find them, even if it means representing men who suffer discrimination so the precedent can protect women in future cases.
Winning these cases was not easy. Ginsburg was arguing before judges who came of age in a misogynist time, nearly all of whom became lawyers and judges prior to the Civil Rights Act of 1964, and for whom equal rights for women was a foreign concept. (The Supreme Court did not rule that sexual harassment violates the Civil Rights Act until 1986). Courts are also reluctant to find new rights in the Constitution. The puzzle is that the Equal Protection Clause does not speak to women or anyone else. It only says the “State [shall not] deny to any person within its jurisdiction the equal protection of the laws.” Courts have never applied that language literally, instead affording the government some leeway in regulating economic and other social matters so long as the law has a “rational basis,” an elastic legal standard in which the government usually wins.
The liberal Warren Court of the 1950s and 1960s eventually employed the Equal Protection Clause to protect blacks and other racial minorities from government-sponsored discrimination. Judges formulated a legal framework for analyzing statutes and rules that discriminated on the basis of race. Courts will strike down the law unless it is narrowly tailored to promote a compelling government interest. This is the perhaps the most stringent legal standard in constitutional law. Few laws survive “strict scrutiny,” in which courts carefully study the measure to determine whether its enactment was absolutely necessary. But courts did not extend these protections to women, denying them heightened protections against discrimination under the Constitution. This spawned the Equal Rights Amendment, which gathered support in the 1970s but failed to see ratification in the early 1980s as the nation grew more conservative.
What ERA supporters could not accomplish through the political process was partly achieved through Ginsburg’s legal advocacy in the 1970s, although the Supreme Court never came to analyze sex discrimination cases as it did racial discrimination cases. Rather than apply “strict scrutiny” review (applicable to race claims), the Supreme Court settled upon “intermediate scrutiny” for sex discrimination cases, striking down laws that discriminate against women unless they substantially advanced an important government interest. That framework still prohibits many forms of gender discrimination, but it is not the kiss of death promised by strict scrutiny.
We can thank Ginsburg for these legal developments. She was not a litigator when she took on sex discrimination cases in the Supreme Court, but she developed a reputation as a serious and hard-working perfectionist whose analytical mind persuaded the all-male Supreme Court to revisit constitutional protections for women. Had Ginsburg never become a Supreme Court justice, she would have merited a biography. But not one that exceeds 700 pages. Half the book covers her life after litigation.
In her mid-40s, after Jimmy Carter was elected President, Ginsburg sought a federal judgeship, hoping to capitalize on Carter’s promise to appoint more women to the federal judiciary, which was still dominated by white men. But at the time, Ginsburg was seen as just another civil rights crusader. Interviewing for a position on the Second Circuit Court of Appeals in Manhattan, the business lawyers on the screening committee deemed her unsuitable because she was unfamiliar with securities law. In 1980, after dragging his feet, Carter ultimately appointed her to the Court of Appeals for the District of Columbia, a training ground for many Supreme Court justices. Ginsburg joined the Supreme Court in 1993, making her only the second female justice. (Today, the Supreme Court has three women, Ginsburg, Elena Kagan and Sonia Sotomayor).
Unfortunately for civil rights advocates, the Court has been largely conservative ever since Ginsburg became a justice. This has produced some memorable dissenting opinions by Ginsburg on civil rights and other issues, meriting the “Notorious RBG” nickname. But perhaps her most influential ruling came in 1996, when Ginsburg wrote the majority opinion that struck down the males-only admissions policy at the Virginia Military Institute. This ruling fulfilled the legal vision that Ginsburg had initiated 25 years earlier as a private litigator. The legal standard that Ginsburg devised in reviewing these cases now requires the government to advance an “exceedingly persuasive justification” for policies that treat men and women differently. She referred to this as “skeptical scrutiny,” which comes close to the “strict scrutiny” test governing race discrimination cases. Ginsburg’s biographer asks whether she had actually altered the legal standard to provide greater rights for women. Some scholars believe the “exceedingly persuasive” test is more demanding than the one employed by the Supreme Court in the 1970s in assessing gender distinctions, but not as strict as the test applicable to racial discrimination cases. It certainly looks that way.
Any Supreme Court biography asks its reader to plow through lengthy discussions of landmark rulings that may not interest non-lawyers. This book covers that ground in lively fashion, all the while keeping tabs on Ginsburg’s private life, including her husband’s death in 2010 after more than a half-century of marriage. Marty Ginsburg was a feminist in his own right, taking on his share of domestic responsibilities, including the cooking, as his wife worked late nights building her career. This book also provides some inside-baseball in areas that are often long-forgotten or under-reported. Ginsburg’s quest for a judgeship in the late 1970s sheds light on the political and other considerations that can scuttle or advance a judicial career, factors that remain in force today, particularly as the federal judiciary takes on a more enhanced role in American life, and interest groups recognize the impact that any new justice can have on a variety of legal issues. Many excellent lawyers never become judges, and many well-known judges would have lived their lives in relative obscurity as lawyers but for a few twists and turns on the way to a judicial nomination. Ginsburg experienced those twists and turns. We also learn that Ginsburg did not get to argue all the cases she wanted in the Supreme Court in the early 1970s, as the ACLU reluctantly allowed an obscure lawyer to seek the glory in Reed v. Reed, an important case that held for the first time that the government cannot discriminate on the basis of gender. The author writes that, without Ginsburg’s direct involvement, the oral argument was terrible.
A few years ago, a debate erupted over whether Ginsburg should have retired when President Obama was in office, so he could replace her with an ideologically-compatible justice. Ginsburg would do nothing of the sort. She has been on the Court a quarter century and works out regularly. From what I can see in reading her opinions, her mind is as sharp as ever. Reading this biography, it is easy to see how no one will talk her into retiring, no matter who the president is. I am sure Ginsburg was shocked to see Donald Trump reach the White House. I doubt she minds the race to outlast Trump. This is one tough woman.
Stephen Bergstein is a civil rights lawyer in upstate New York.