Strict scrutiny

Jane Sherron De Hart explores how Ruth Bader Ginsburg’s upbringing inspired her commitment to social justice.

RUTH BADER GINSBURG appears before the Senate Judiciary Committee for her Supreme Court confirmation hearing in 1993 – holding a sign made by her grandson. (photo credit: GARY HERSHORN/REUTERS)
RUTH BADER GINSBURG appears before the Senate Judiciary Committee for her Supreme Court confirmation hearing in 1993 – holding a sign made by her grandson.
On January 17, 1973, Ruth Bader Ginsburg made her first oral argument before the Supreme Court of the United States. Impeccably dressed, and wearing her late mother’s jewelry, the director of the Women’s Rights Project of the American Civil Liberties Union explained why the high court should subject gender-based laws and regulations to the strictest scrutiny in the case of Frontiero vs Richardson.
Ginsburg concluded her argument that women deserved equal protection under the Fourteenth Amendment of the US Constitution with a quote from Sarah Grimke, a 19th-century abolitionist and feminist: “I ask no favor for my sex. All I ask from my brethren is that they take their feet off our necks.”
As was his wont, Justice Harry Blackmun graded Ginsburg’s presentation. Noting that she was “very precise” but excessively “emotional,” leaving him “wary and a little grumpy,” Blackmun gave her a C-plus. Next to Ginsburg’s name, Blackmun wrote “J,” his abbreviation for “Jew.”
Author Jane Sherron De Hart wonders whether the designation signified the provincialism, and perhaps the prejudice, of a self-styled Midwestern “country boy.” De Hart notes as well that Ginsburg’s argument convinced Justice Thurgood Marshall, who had voted against hearing the case, to apply “strict scrutiny” to sex-based as well as race-based discrimination.
In Ruth Bader Ginsburg: A Life, De Hart, an emerita professor of history at the University of California, Santa Barbara, and the co-author of Sex, Gender, and the Politics of the ERA, provides an informative account of the arc of Ginsburg’s life and career. Familial roots in the exodus of Jews from Eastern Europe and Russia, and tikkun olam (the Hebrew injunction to “repair the world”), she indicates, supplied the inspiration for her commitment to social justice. Although Ginsburg’s contributions to American law have been many and varied, De Hart pays special attention to the “tiger justice’s” support for more inclusive citizenship for women, blacks, gays and immigrants.
De Hart reveals the myriad ways in which Ginsburg’s feminism emerged from her personal experiences. Celia Bader, we learn, insisted that her daughter aim high, be strong and independent. Tied for first place in her graduating class at Columbia Law School, Ginsburg nonetheless received no job offers from prestigious law firms; she had enormous difficulty securing a clerkship.
As late as 1970, De Hart notes, women constituted 3% of the legal profession. Of 2,700 lawyers employed in top 20 law firms, a mere 186 were female. Of 10,000 judges, only 200 were women, most of them confined to lower courts. Ginsburg became acutely aware, as well, of pay disparities for female law professors and the sex-related discrimination experienced by her ACLU clients. She also understood that in refusing to put his career ahead of hers, Marty Ginsburg, her husband, was way ahead of his time.
As a litigator and a judge, De Hart writes, Ginsburg was rarely reluctant to state her views. She angered feminists, for example, by criticizing Roe vs Wade’s reliance on a trimester approach (which might be irrelevant as fetal technology improved) and “privacy” rights (which rested on fragile textual backing), instead of the equal protection guarantees of the Fifth and Fourteenth Amendments. That said, Ginsburg also recognized, with Justice Benjamin Cardozo, that justice often must “be wooed by slow advances.” Faced with conservative majorities on the Supreme Court, Ginsburg tried to lay down “way pavers” that might facilitate gradual change.
Throughout chief justice William Rehnquist’s tenure, De Hart demonstrates, Ginsburg cultivated a reputation as a consensus- seeking moderate, using relatively neutral language even in her dissents. More recently, with the dominance of conservatives on the Roberts court, her frustration as de facto leader of a quartet of liberals has risen to the surface. Taking the unusual step of reading dissents from the bench 13 times between 2006 and 2015, Ginsburg exhibited sarcasm, regret and anger. The notion that a partial-birth abortion ban advanced “any legitimate government interest,” she proclaimed, to cite but one example, “is, quite simply, irrational.” Saving “not a single fetus from destruction,” the decision was little more than the enactment of the “moral code” of five Supreme Court justices. Another dissent convinced Congress, controlled by Democrats in 2009, to pass the Lilly Ledbetter Fair Pay Act.
Virtually alone among Supreme Court justices, De Hart points out, Ginsburg has become a popular cultural icon, with T-shirts and coffee mugs bearing her likeness and slogans such as “The Ruth Will Set You Free,” films, documentaries, plays and a “Notorious R.B.G.” Tumblr blog devoted to her. Although De Hart criticizes some her legal reasoning, she no doubt counts herself as a fan – and supporter of Ginsburg’s determination to remain on the Supreme Court. The diminutive justice, De Hart concludes, has had an outsized influence: “The law and the constitutional rights and liberties of the American people are the better for her ongoing efforts.”
The writer is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University.