When Justice Ruth Bader Ginsburg began her legal career in 1959, the United States was a nation of gender apartheid. Women were formally regarded as second-class citizens whose duties consisted of finding a husband, raising children, and maintaining a home. They were barred from countless professions, frequently denied access to an education, and paid substantially less than men—openly and legally—who did the same work. And they had no right to control their reproductive lives. Both state and federal law viewed women as vulnerable creatures in need of protection from their own ambitions. Even Chief Justice Earl Warren’s famously liberal Supreme Court unanimously upheld Florida’s exclusion of women from mandatory jury service in 1961, reasoning that “woman is still regarded as the center of home and family life.”
Ginsburg, who died on Friday at the age of 87, saw this paternalistic head-patting for what it was: rank discrimination based on stereotypes that degraded everyone involved. She devoted her life to dismantling this caste. Later in life, the justice would say that she did not fight for “women’s rights,” but for “the constitutional principle of the equal citizenship stature of men and women.” At the start of her career, this principle seemed to be a distant dream. Today, it is the law of the land—and under constant attack from reactionaries who will see, in Ginsburg’s death, the opportunity to erase her legacy. The impact of that legacy on the nation she served is almost impossible to overstate.
When Ginsburg began litigating sex discrimination cases in the early 1970s, the timing appeared to be inauspicious: The court veered rightward under President Richard Nixon, seeming to bring the liberal revolution of the 1960s to a close. Yet that revolution had done little for women’s equality. The Warren Court never applied the 14th Amendment’s equal protection clause to strike down a law that discriminated on the basis of sex. Feminists, fearing the Supreme Court would never recognize constitutional protections against sex discrimination, persuaded Congress to approve an Equal Rights Amendment in 1972 to make gender equality an undeniable constitutional right.
Ginsburg supported the ERA, but she also believed that right already existed; she simply had to help the Supreme Court’s nine male justices see it. To do so, she found cases involving laws that discriminated against men, a brilliant strategy that scored her a string of SCOTUS victories beginning in 1971. Ginsburg recognized that the justices’ judgment might be too clouded by their own biases to see how laws that ostensibly helped women—by, for instance, “protecting” them from working or owning property—actually harmed them. So she attacked laws that injured men to illustrate how sex discrimination in either direction is fundamentally irrational. One case challenged a Social Security rule that granted survivor’s benefits to widows caring for minor children but denied benefits to widowers in the same situation. She described the case as “the perfect example of how gender-based discrimination hurts everyone”—a fact recognized by the court, which pointed out that Congress’ sexist assumptions about parenting harmed fathers and children as much as women.
With remarkable speed, Ginsburg and her colleagues at the ACLU’s Women’s Rights Project—which she co-founded in 1972—persuaded the court to apply heightened scrutiny to laws the discriminate because of sex. This rule ended lawmakers’ ability to justify these measures with resort to sexist stereotypes. The court acknowledged in 1973 that such “romantic paternalism” had the “practical effect” of putting women “not on a pedestal, but in a cage.” Once on the court, Ginsburg would further heighten the amount of scrutiny applied to sex discrimination. In 1996’s U.S. v. Virginia, she invalidated the Virginia Military Institute’s male-only policy, holding that the government must put forth an “exceedingly persuasive justification” for sex discrimination. Later, in 2017, she again invoked this standard in Sessions v. Morales-Santana, clarifying that this justification must remain persuasive “today,” because “new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.”
Over the decades, Ginsburg was constantly broadening her understanding of “unjustified inequality” beyond her own experience. The justice’s explanation of “unjustified inequality” in Sessions drew from the Supreme Court’s 2015 decision in Obergefell v. Hodges, which recognized same-sex couples’ fundamental right to marry. Her connection between sex discrimination and anti-gay discrimination was prescient. A few months after Obergefell came down, Ginsburg noted that feminism and marriage equality are deeply intertwined. “It’s a facet of the gay rights movement that people don’t think about enough,” the justice said. “Why suddenly marriage equality? Because it wasn’t until 1981 that the court struck down Louisiana’s ‘head and master rule,’ ” which gave husbands total control over marital property. “Marriage was a relationship between the dominant, breadwinning husband and the subordinate, child-rearing wife,” Ginsburg continued. States locked both partners into gender roles based on a stereotyped vision of what marriage means. “What lesbian or gay man,” the justice asked, “would want that?”
Five years later, in Bostock v. Clayton County, the Supreme Court affirmed 6–3 that anti-LGBTQ discrimination is a form of sex discrimination. Ginsburg, vindicated, did not write the majority opinion. Nor did she write Obergefell. The justice was happy to let her (male) colleagues author watershed opinions safeguarding equal rights. She did not hog the spotlight and eagerly compromised to reach the proper result. The result, after all, was what mattered to her and to the country. After all, as she put it, she was not a queen, and she would not let purity get in the way of progress.
Victories like Bostock should not obscure the fact that Ginsburg’s tenure was marked by substantial setbacks for the causes she championed. After Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court began retreating from reproductive rights. In 2007’s Gonzales v. Carhart, the court relied on overtly sexist logic to upheld a ban on a common second-trimester abortion procedure.* The five men in the majority reasoned that the government may need to protect women from obtaining a procedure they may later regret, declaring that “respect for human life finds an ultimate expression in a mother’s love for her child.” (In dissent, Ginsburg castigated her colleagues for relying upon “ancient notions about women’s place in the family and under the Constitution” that have “long since been discredited.”)
In her last term on the bench, Ginsburg saw more setbacks. Chief Justice John Roberts diminished the constitutional right to abortion access—a right that is now in even graver peril. The court built upon its disastrous 2014 decision in Burwell v. Hobby Lobby, which exempted religious corporations from the duty to provide contraceptive coverage, by upholding the Trump administration’s dramatic expansion of that exemption. It also expanded the “ministerial exception” to civil rights laws, allowing religious employers to discriminate against workers on the basis of sex.
Despite these disappointments, Ginsburg remained a relentless optimist—perhaps because she understood how far the nation has come in a relatively short period. In 2019, speaking at a sold-out arena in Little Rock, Arkansas, Ginsburg reminded spectators of the Constitution’s opening line: “We the people of the United States in order to form a more perfect union.” She then challenged her audience to consider how empty those words were at the time.
“Think about how things were in 1787,” the justice said. “Who were ‘We the people’? Certainly not people who were held in human bondage, because the original Constitution preserves slavery. Certainly not women, whatever their color, and not even men who own no property. It was a rather elite group.” But over time, Ginsburg continued, “the concept of ‘We the people’ has become ever more inclusive,” growing to encompass “slaves, women, men without property, Native Americans.” Today, all these groups have won their right to participate in American democracy. And, the justice concluded, “we are certainly a more perfect union as a result of that.”
The justice understood constitutional equality was an ongoing project, and she spent her life expanding equal citizenship to all Americans. That project remains unfinished, and her death will make it harder, but not impossible, to complete.
Correction, Sept. 18, 2020: This article originally misspelled Gonzales in the court case Gonzales v. Carhart.
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