About 30 years ago, I had the privilege of calling Judge Ruth Bader Ginsburg on the phone for a reference on a former law clerk who was being considered for a position on my faculty. I knew her by reputation as the woman who led the fight for women’s equal rights before the law, and she was already a distinguished judge on the U.S. Court of Appeals in Washington, D.C. She gave her clerk a glowing reputation, so glowing that when Judge Ginsburg was nominated to the Supreme Court, I told my now-colleague that she was going to call him to clerk for her on the high court if she was confirmed. Sure enough, she was confirmed and he got the call and spent a year on leave from the faculty to assist Justice Ginsburg once again.
What I remember most about the phone call, however, is not what she said about her law clerk but her courtesy, her modesty, and even her enthusiasm for hearing about me and my work. I felt like I had made a new friend even over a 400-mile wire. A couple of years later when she came to Boston University Law School for an event, I had the honor of being seated next to her and her husband, Marty Ginsburg, at dinner. She was even more impressive in person: friendly, clearly brilliant, and charming. I was thrilled to have a chance to converse with one of the great lawyers in the history of our country, and as our (pretty mediocre) dinner was served, it turned out that instead of the mysteries and subtleties of jurisprudence, we talked about food and Marty’s cooking, which I later learned was legendary. I did get to play a bit of Jewish geography with him. He was a distinguished tax lawyer, and my cousin’s father-in-law was also at the top of that field in Washington, so I was not surprised to learn that Marty Ginsburg was well acquainted with my sort-of relative.
When I learned during pre-Rosh Hashanah dinner that Justice Ginsburg had passed away, my thoughts turned to her stellar reputation as a lawyer and her incomparable performance as a justice of the Supreme Court. She accomplished for women what it took a cadre of distinguished lawyers – including Thurgood Marshall, Spottswood Robinson, and Charles Hamilton Houston – to do for African-Americans.
I recall the indignities my mother suffered in the early 1970s when, after she and my father were divorced, insurance companies and others did not want to do business with an unmarried woman. Ruth Bader Ginsburg’s efforts helped put a stop to that sort of discrimination. Of course, she did not do it alone, but if her career had ended there, she would still deserve to be known as one of the great lawyers, male or female, of the 20th century. Even before she became a judge, she deserved the moniker “Notorious RBG.”
It is impossible to overstate her accomplishments as a justice of the Supreme Court. I’ll focus on two of her opinions, one for a majority and the other in dissent. In 1996, she wrote the court’s majority opinion forbidding the State of Virginia from denying women admission to the Virginia Military Institute based solely on their gender. As Justice Ginsburg explained, the court had previously determined that “parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action,” which Virginia failed to do. The heart of Justice Ginsburg’s opinion was its careful exposition of how Virginia’s reasons for barring women were founded upon stereotypes that had been used historically to justify the exclusion of women from activities such as practicing law and medicine and from admission to federal military academies. As Justice Ginsburg said, these stereotypes had been exposed as founded on discriminatory motives rather than reason and could not justify exclusion of women from VMI.
When the Supreme Court in 2007 rejected Lilly Ledbetter’s lawsuit after she discovered that her employer, Goodyear Tire & Rubber Co., had paid her less than men performing the same functions, Justice Ginsburg wrote the dissenting opinion on behalf of a four-Justice liberal minority. The majority’s decision was founded upon its view that Ms. Ledbetter had sued too late, she should have sued within 180 days of the onset of the discrimination, even though she did not discover it until years later. Justice Ginsburg’s dissent carefully explained that the majority had erected an impossible burden for women like Ms. Ledbetter, who have no way of knowing – or even suspecting – that they were consistently receiving smaller pay increases than their male counterparts. Congress agreed with Justice Ginsburg, and the first bill signed into law by President Barack Obama was the Lilly Ledbetter Fair Pay Act of 2009, a measure inspired by Justice Ginsburg’s dissent, that made it possible for employees to prevail when they discover they had been victimized by discriminatory compensation decisions over a long period.
These opinions are consistent with Justice Ginsburg’s career on the Court. She carefully set out a clear, consistent, and principled jurisprudence designed to protect the rights of those who needed protection, and she was consistently the most sensible, well-spoken, and moderate – in tone – member of the Court. Her reasoning was so persuasive, she never found it necessary to engage in the histrionics favored by some of her colleagues. Just on that score, the Court will miss her.
Of course, it is impossible to mark her passing without commenting on the controversy that has already erupted over her replacement. Only naiveté would have led anyone to believe that the party in power would follow the rule that it created out of thin air in 2016 to deny President Obama the right to fill Justice Antonin Scalia’s seat in the last year of his presidency. With the abolition of the filibuster for Supreme Court confirmations, and the apparent decision by almost all Republican senators to follow Mitch McConnell’s instructions and vote to confirm President Trump’s nominee – Circuit Court of Appeals Judge Amy Coney Barrett – it seems likely that Justice Ginsburg will be quickly replaced by a super-conservative justice.
In response, the Democrats’ only option might be – assuming the party takes both the presidency and the Senate in November – to increase the number of Supreme Court justices and restore the balance destroyed by the two “stolen seats.”
It is unfortunate that the Supreme Court is so political. It sticks its nose into many areas in which, in a democracy, it does not belong. But please, do not be misled into thinking this is a new phenomenon. The post-Civil War Supreme Court dismantled Congress’s plan for Reconstruction and paved the way for a century of Jim Crow discrimination against African-Americans. In the early 20th century, the Court actively intervened to prevent pro-labor and other economic reforms, and backed down only in the face of President Franklin D. Roosevelt’s own court-packing plan.
In this light, Justice Ginsburg was a relative moderate, joining an activist court only when necessary to protect fundamental rights, and steadfastly refusing to allow the Supreme Court to undercut beneficial laws that are constantly under attack from the business and industry groups that support the party in power. It will be a shame if her replacement unleashes the destruction of laws protecting women, minorities, workers, immigrants, and all of us who care about health care and a healthy environment.
Right about now, the country could use someone with the determination and ability of Justice Ruth Bader Ginsburg, may her memory be a blessing.
Professor Jack M. Beermann is the Harry Elwood Warren Scholar at the Boston University School of Law.