Honoree Profile: Ruth Bader Ginsburg

By Wendy Williams

Almost 25 years before she was sworn in as the 107th Justice (and second woman) on the U.S. Supreme Court, 36-year-old Ruth Bader Ginsburg embarked on a carefully-conceived, decade-long project that would have secured her place in American history even if she had not ascended to the nation's highest tribunal.

The year was 1969, and Ginsburg had just been promoted to full professor at Rutgers Law School where, since 1963, she had been teaching and publishing articles on such subjects as civil procedure, recognition of foreign judgments and legal services for poor people in foreign legal systems. Urged by her women students, instructed by her personal experiences of a woman's second-class status and buoyed by the rising tide of the reborn feminist movement in the United States, Ginsburg, Phi Beta Kappa graduate of Cornell University and tied-for-top graduate in Columbia Law School's class of 1959, turned her formidable energy and intelligence to teaching, writing about and litigating for women's equal status under law.

By early 1971, Ginsburg was teaching one of the first women-and-law courses in the U.S. With her students she had worked on issues ranging from discrimination against pregnant schoolteachers to sex integration of the all-male Rutgers College and equal education benefits for women veterans. By then she was searching for a suitable case to take to the Supreme Court,which had never recognized the constitutional right of women to be treated as equals to men.

Then on March 3, the Supreme Court granted review to the case Reed v Reed. Sally Reed was challenging an Idaho law specifying that when equally qualified persons sought to administer a decedent's estate, the man must be preferred to the woman. Reed's Idaho lawyer made the oral argument, but it was Ruth Ginsburg's eloquent brief recounting the history of women's legal inequality, and presenting for the first time the argument that sex-based laws should, like race-based laws, be treated as "suspect," that won over a unanimous Court.

Although the Court did not go so far as to declare sex classifications suspect, the Reed opinion displayed its unprecedented willingness to take sex discrimination challenges seriously: The Idaho statute, it said, "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause."

In December 1971, the ACLU Board of Directors budgeted funds for a Women's Rights Project, and Ruth Ginsburg (who would move to Columbia Law School in mid-1972 as its first tenured female faculty member) was selected to head the project. Ginsburg's next major victory was Frontiero v Richardson (1973), in which the Court, with only one dissent,decided it was unconstitutional to accord women members of the uniformed services lesser medical and housing benefits for their families than it gave male members. A plurality of the Court, acknowledging the nation's "long and unfortunate history of sex discrimination," went further, agreeing with appellants that "classifications based upon sex, like classifications based on race, alienage, and national origin,are inherently suspect and must therefore be subjected to close judicial scrutiny."

Although that position never acquired support of the Court's majority, Ginsburg's 1975 victory in Weinberger v Wiesenfeld acknowledged the costs of "one-eyed sex-role pigeonholing" to both sexes and whole families and consolidated the Court's position that sex classifications would attract its active attention, even if not the "close judicial scrutiny" to which it subjected racial classifications.

When the Court finally settled on a durable articulation of the appropriate standard in 1976 ("classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"), it was not Ruth Ginsburg's case, but her fingerprints were everywhere — she had advised the petitioners'Oklahoma lawyer on his brief, submitted an amicus brief for the ACLU, written the petitioners' reply brief, and joined petitioners' lawyer at counsel table during oral argument.

By 1980,when she left teaching and litigating to take up judging on the federal Court of Appeals in DC, she had litigated nine sex-discrimination cases in the Supreme Court — writing briefs in all of them, presenting oral argument in six, and losing only one. Moreover, she had contributed directly to almost every other major sex-discrimination case brought to the Court in the 1970s, submitting 15 amicus briefs, had coauthored the first law-school casebook on sex discrimination and law, published at least 24 articles, monographs and book chapters on sex-discrimination issues, given innumerable speeches and presentations on gender questions, fought for the Equal Rights Amendment, and provided advice, support and inspiration to her fellow pioneer feminist lawyers, many of whom are being honored at this event.

Aryeh Neier, executive director of the ACLU during Ginsburg's litigation years, said of her achievement, "To my knowledge the only litigation strategy that anyone ever implemented that was as clearly developed [as Ginsburg's] was what Thurgood Marshall did at the NAACP Legal Defense Fund." Her 1970s litigation campaign for women's equality, he said, "was one of the masterpieces of American cause litigation."

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