OTI Online
Winter 1994

Doing The Woman Justice: Ruth Bader Ginsburg
by Suzanne Levine

"To be honest, until I began to prepare for these hearings, I didn't realize the depth and the extent to which you have played a very critical role in breaking down the barriers that have barred women from public and private sectors for centuries."

Senator Diane Feinstein
Senate Hearing 7/20/93

When Ruth Bader Ginsburg, 60, took her place on the Supreme Court this fall, it was the culmination of an outstanding career dedicated to challenging laws that discriminate against women. Many of us did not have the time or patience to follow the Senate confirmation hearings for the new Justice. But the content of those hearings, as recorded in the Congressional Record and summarized here, contain a fascinating overview of how one woman managed to challenge and radically redress gender bias in the law.

Ginsburg personally broke barriers that had kept women out of the academic and law arenas. Among the first nine women admitted to Harvard Law School, she graduated at the top of her class at Columbia Law School. She was the first woman to join the faculty of Columbia Law School and became one of the first tenured women professors. Ginsburg suffered first-hand the effects of blatant discrimination. Despite top credentials, she was unable to get a job at a major law firm. She was recommended as a law clerk to Supreme Court Justice Felix Frankfurter, but he deemed it inappropriate to have a woman clerk. As a litigator, she was relegated to the "woman's work" of handling sex discrimination cases.

These indignities galvanized Ginsburg to devote her career to breaking down the legal obstacle to women's advancement. She founded the American Civil Liberties Union (ACLU) Women's Rights Project and was involved with virtually every major gender case which reached the Supreme Court in the 1970s. Of the six landmark cases she argued before the Court, Ginsburg won five of them. These cases wrote the history of modern gender discrimination law.

Ruth Bader Ginsburg
Ruth Bader Ginsburg

Ginsburg won the first of these cases, Reed v. Reed, in 1971. The unanimous decision held that an Idaho law under which "males must be preferred to females" as administrators of descendants' estates violated the equal protection clause of the Fourteenth Amendment. For the first time, the Supreme Court invalidated a state law on the ground of sexual discrimination - almost a century after the Court had upheld Illinois' refusal to admit a woman to the practice of law.

inFrontierov. Richardson, 1973, Ginsburg challenged an Air Force rule that a female enlistee could receive housing and medical benefits for her spouse only if she first proved that he was dependent upon her for over one-half of his support. No such burden was imposed on males. Justice Brennan s opinion in the case noted that, traditionally, "such discrimination was rationalized by an attitude of romantic paternalism, which, in practical effect, put women not on a pedestal but in a cage." The case established, for the first time in history, a strict scrutiny test of constitutionality for statutes based on such gender classifications.

In the 1975 Weinberger v. Wiesenfeld case, Ginsburg's litigation strategy included a brilliant tactic to help the all-male Supreme Court see the unconstitutionality of gender discrimination: she argued a case in which the victim was a man. In the Wiesenfeld family, the wife was the wage earner, paid Social Security, and died in childbirth. The husband wanted to collect Social Security survivor benefits in order to raise his child, but was refused the "mother's benefit" because he was male. After Ginsburg s arguments, the Supreme Court voted unanimously in Wiesenfeld s favor, the majority saying the gender-based classification discriminated against the woman wage earner.

"What a distance we have traveled from the day President Thomas Jefferson told his secretary of state the appointment of women to public office is an innovation for which the public is not prepared; 'nor,'Jefferson added, 'am I,'" Judge Ginsburg said at the confirmation hearings. She quoted Justice Thurgood Marshall, who noted that 'we the people' has grown ever larger. Ginsburg affirms that the framers of the Constitution intended to "create a more perfect union that would become ever more perfect over time."*

Suzanne Levine is an assistant editor on this magazine.

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