Ruth Bader Ginsburg: Farewell to the “Old” America?

U.S. Supreme Court Justice Ruth Bader Ginsburg speaks on the Main Stage of the National Book Festival, August 31, 2019. Photo by Shawn Miller/Library of Congress // CC0

The death of legendary US Supreme Court Justice Ruth Bader Ginsburg generated massive media coverage. While she was still alive, this 87-year-old icon of the US feminist movement was feted almost like a pop star. “RBG”, as she was lovingly referred to, represented the liberal America where a poor girl from an immigrant family could transform an entire country. Her loss, and her replacement by conservative Justice Amy Coney Barrett, have led many to doubt whether that America still exists.

Ruth Bader Ginsburg’s life story is the stuff of which legends are made. It is the story of an underdog who always believed in herself, let nothing stop her and who in the end overcame all obstacles before going on to change the world. Ginsburg’s story really does read like a classic version of the famous American dream.

Ruth Bader was born to a Polish-Ukrainian family of immigrants in 1933. She grew up in modest circumstances in Brooklyn, at a time when it was a tough neighbourhood dominated by immigrants from many nations.

Despite their own simple educational backgrounds, her parents placed great value in her education, and so she managed to get into the country’s best law school: Harvard. A year before enrolling, she and her husband Martin Ginsburg, who was also studying at the elite Boston university, had a baby daughter, Jane.

At Harvard, Bader Ginsburg was one of only 9 women among the 500 students in her year. Most of her fellow students and lecturers were male and refused to work with women, even placing obstacles in their paths. Adding to the burden, Ginsburg, who had lost her mother to cancer at an early age, also had to take care of her husband, who was diagnosed with testicular cancer, in addition to caring for their young daughter.

Today, the story of how she finished top of her class despite these challenges has passed into legend. She was the living embodiment of the fact that women were able to do things not just as well as their husbands, but even better. She followed her husband to New York, where he had found a job as a tax attorney, and registered at Columbia University to complete her studies.

Here, she joined an international project that brought her to Sweden. She learnt the language and observed the successes of the equal rights and feminist movements. At the time, around a quarter of her fellow students in Sweden were female, an important factor that was to influence her later thinking.

Things did not get any easier after she had finished studying. Ginsburg experienced great difficulty in finding a suitable position. Even finding a post as a law clerk seemed almost impossible. Supreme Court Justice Felix Frankfurter rejected her for a clerkship position in 1960 because of her gender.

It was only when her professor at Columbia, Gerald Gunther, threatened never again to recommend a Columbia student to Judge Edmund L. Palmieri at the US District Court for the Southern District of New York that she finally got a clerkship. But ultimately she had to give up on her goal of becoming an attorney like her husband. In the early 1960s, male objections to working with a female colleague were still too great.

And so Ginsburg became a university professor, finding her first position at Rutgers Law School in 1963. Again, she was one of very few women and experienced structural inequality up close and personally: she was paid less than her male colleagues because her husband had a well-paid job.

As professor, the created the first law journal to focus exclusively on women’s rights and co-authored the first law school casebook on gender-based discrimination. Amid the rising tide of social change in the late 1960s and early 1970s, this outstanding jurist became one of the nation’s leading women’s rights activists. Her own lifelong experience of discrimination was a constant motivator.

Interestingly, at first she often picked male plaintiffs. This was because she was pursuing a greater objective: she wanted to demonstrate that gender discrimination existed in US law. At the time, the Supreme Court declined to grant women the Equal Protection Clause of the Fourteenth Amendment.

The breakthrough came in 1971 in the Reed vs. Reed case. Ginsburg was brought into the proceedings as a leading expert and made an important contribution by helping to persuade a bench composed entirely of men.

But despite this judgment, there were still hundreds of laws in the US of the early 1970s that discriminated on the basis of gender. It was a confusing mess. At the time, almost all of the lawyers and judges in the country were still male, and most of them believed that treating women differently was not discrimination, but the natural order of things.

Ginsburg demanded justice. She wanted to show that treating men and women differently was not natural, but simply an expression of an outdated understanding of social roles. She pursued an intelligent strategy: she represented men who had been discriminated against based on their sex. She hoped that her male colleagues could be more easily made to understand the subject when cases revolved around another man.

Her strategy was successful. Using the case of a man who had been taking care of his wife, who suffered from dementia, and who wanted to offset the resulting caregiver expenses against tax, she achieved a breakthrough before a federal appellate court in Denver.

The anecdote that the justice department used a Pentagon computer to generate a list of elements of the US Code that discriminated on the basis of gender is probably apocryphal, but now forms part of US jurisprudential history.

This event, which showed judges the potentially far-reaching effects of their ruling, formed the foundation of Ginsburg’s famous Women’s Rights Project, which she co-founded with the American Civil Liberties Union (ACLU) and led as director from 1973.

She consistently charted a strategic course of targeting specific statutes one at a time, rather than trying to address all gender discrimination at the same time. Again and again, she used male plaintiffs to make a male-dominated world understand gender-based discrimination.

By the mid-1970s, the project had already participated in over 300 gender discrimination cases, while Ginsburg had argued six equality cases before the Supreme Court, winning five. In this way, her work played a vital role in driving the societal changes underway at the time.

The legacy of Bader Ginsburg, who was nominated to a seat on the DC circuit appeals court by Jimmy Carter in 1980 and finally nominated for the Supreme Court by Bill Clinton in 1993, is the social equality of women, LGBTIQ and other minorities. She fought for an open America that finds its strength in diversity rather than isolation and that offers equal opportunities to all.

But this also meant that from the beginning, the country’s conservative forces viewed her as a target and a provocation: a woman who, throughout her life, had attacked patriarchal structures, undermined them and broken them down, using the law as a tool.

In this way, she became a natural counterpart to the ideology of Donald Trump. Against expectations, Trump ascended to the US presidency in 2016 because – among other reasons – he managed to focus the decades-old hatred parts of society felt towards the liberal elites and the social liberalisation which Ginsburg embodied.

Changing the composition of the Supreme Court was one of the stated aims of the Trump campaign from the beginning. The prospect of getting to decide on 2-3 of the lifetime appointments to the Supreme Court drew many conservative voters into the conservative camp who might otherwise not have voted for the eccentric real estate mogul.

This plan is now coming to fruition. In the last week of October 2020 – just eight days before the presidential election which could end up costing Trump his office – he managed to get a conservative judge, Amy Coney Barrett, appointed to the Supreme Court thanks to the Republican majority in the Senate.

This was a particularly bitter defeat for the Democratic minority in the Senate because in 2016, the Republicans had managed to delay the appointment of a successor to conservative Justice Antonin Scalia by months. Instead, in 2017, Trump was able to nominate a highly conservative judge, Neil Gorsuch, to fill the post.

The key requirement underlying Barrett’s nomination – at the age of 48, she is the youngest woman ever to become a Supreme Court justice – was her clear opposition to abortion. During his election campaign, Trump had made clear his intention to only appoint “anti-abortion judges” to the Supreme Court.

Brett Kavanaugh, nominated by Trump in 2018, also met this requirement. The ultimate goal is to have a newly conservative-leaning Supreme Court review Roe v. Wade, an abortion ruling widely despised in the conservative and religious parts of America.

Over the next few years or even decades, the appointment of Amy Coney Barrett could turn out to be a turning point in US history. At the very least, it is an expression of a divided society and means that the social liberalisation which recently achieved such victories as the recognition of gay marriage is being slowed down – or even reversed.

Ruth Bader Ginsburg could sense this. Despite her clear support for abortion, she was an outspoken critic of Roe v. Wade. In fact, she was so critical that women’s rights groups reacted with misgivings to her nomination as a Supreme Court justice in the early 1990s.

But Ginsburg was not placing in doubt the primacy of women’s rights when it came to abortions. Instead, she was worried about the “stability” of the ruling. On the one hand, she meant that a less vulnerable legal foundation for the abortion rights which the ruling had established was needed.

On the other hand, she criticised the ruling for wanting to achieve “too much, too fast” by effectively making all restrictions on abortions illegal in a single go, making the ruling the target of massive criticism, as she pointed out during a lecture at New York University in 1992.

The election of Donald Trump, in combination with his Supreme Court nominations, shows that Ginsburg’s instincts were true. Society remains divided over the question of abortion, even decades later.

In contrast, workplace equality, which Ginsburg had so successfully fought for, bit by bit, looks more positive. Here, her successor Barrett is much closer to the position of the court’s liberal justices than on the question of abortion.

It was this combination of an exceptional understanding of social relationships and social change on the one hand and her intellectual and legal brilliance on the other that made Ruth Bader Ginsburg so formidable. But she was not only a role model for the women of her generation and those that followed.

As a person, too, she showed all Americans what true integrity meant. She cultivated a deep friendship with her arch-conservative Supreme Court colleague, Justice Antonin Scalia, over a period of almost three decades. This was the case despite some fundamental differences of opinion: for instance, Scalia was strictly opposed to liberalising abortion.

Ginsburg and Scalia showed how two people can hold different opinions and even have vehement disagreements without being contemptuous of the other person. An ability needed not only in today’s deeply divided USA.

With Ruth Bader Ginsburg’s death, the world is not only losing an icon of the women’s rights and civil rights movements. It is also losing a part of the old America, which gave everybody a chance and found its strength in diversity rather than separation and isolation.

Hopefully the looming presidential election will help the country return to this, its old identity.

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