Justice Ruth Bader Ginsburg made an indelible mark on the law as an advocate for gender equality long before she became an icon on the Supreme Court.
Ginsburg designed a legal strategy that directly challenged long-standing gender stereotypes as a way to fight sex discrimination, legal scholars said. The arguments she advanced as an attorney led to decisions that tore down biased laws, recognized new protections for female workers, and created precedents that continue to influence the law decades later, scholars said.
“She transformed the lives of American women, opening doors of opportunity,” said Dorothy Samuels, a senior fellow at the Brennan Center for Justice who’s writing a book on Ginsburg. “There’s not a woman today who doesn’t owe her a debt of gratitude.”
The closest parallel to Ginsburg’s work as strategist behind the courtroom fight for legal equality for women in the 1970s is Thurgood Marshall, who did much the same in the legal battle for civil rights in the 1940s and 1950s. Both are the rare justices whose courtroom achievements before joining the high court ensured they’d be long remembered regardless of what they did as justices.
Her groundbreaking advocacy focused on convincing courts to view the use of gender stereotypes to make decisions as sex discrimination, scholars said. She worked on these cases with the ACLU, leading its Women’s Rights Project from the group’s founding 1972 until she joined the federal bench in 1980.
Representing men as well as women, Ginsburg pursued an incremental approach to attack stereotypes, showing how outdated notions of men-as-breadwinner and women-as-caregiver hurt both genders.
“What Ruth Bader Ginsburg did was persuade a Supreme Court of Justice Thurgood Marshall and eight pretty recalcitrant white guys that women were protected under the Constitution and entitled to equal protection and gender equality,” said Joan Williams, a law professor and director of the Center for WorkLife Law at the University of California, Hastings.
Demonstrating how stereotyped gender roles disadvantaged men was probably the only way to convince those white male justices that such roles were a problem rather than a solution or an expression of human nature, Williams said. Academics and advocates built on Ginsburg’s achievements to fight bias against workers based on their family caregiving duties under an array of federal laws, she said.
“When we came along championing family responsibilities discrimination, we put that at the center, and said stereotypes about mothers are evidence of sex discrimination,” Williams said.
Gender discrimination wasn’t just a theoretical issue for Ginsburg, who couldn’t get a job with a New York law firm or a Supreme Court clerkship after she earned her law degree from Columbia University. Instead, she clerked for a district court judge, took a position with Columbia researching Swedish law, and then joined Rutgers University’s law school faculty.
Speaking at Georgetown Law School in July 2019, Ginsburg reminisced about a conversation she had with retired Justice Sandra Day O’Connor, who also couldn’t get a job right out of a top law school. O’Connor asked how their lives might have turned out if there hadn’t been discrimination.
“We’d be retired partners from some law firm,” Ginsburg said. “But because we didn’t have that route, we had to find another way.”
In the 1970s, Ginsburg took to the courtroom to challenge gender-based classifications on constitutional grounds, primarily equal protection under the law guaranteed by the Constitution. Her involvement in that run of cases started as the lead author of the ACLU’s brief in Reed vs. Reed, a landmark 1971 Supreme Court ruling that struck down part of the Idaho probate code that gave men preferential treatment over women when naming estate administrators.
Ginsburg went on to argue six cases at the Supreme Court that centered on sex stereotypes, prevailing in five. Those victories included a 1973 ruling that invalidated laws applying different criteria to determine benefits for male and female members of the military, a 1978 decision striking down a Missouri county’s rule that exempted women from jury duty, and opinions in 1974 and 1977 that said the Social Security Act’s denial of benefits to widowers that widows could receive was unconstitutional.
The second of the two death benefits rulings, Califano vs. Goldfarb, was perhaps the most important of the cases that Ginsburg argued at the Supreme Court, said Jane Sherron de Hart, author of “Ruth Bader Ginsburg: A Life.” Ginsburg persuaded the justices to overturn a ruling that had denied a widower’s claim for benefits even though his wife had paid Social Security taxes on her earnings for 25 years.
“She not only attacked old stereotypes about who earns wages, but she was also trying to make sure that women’s labor outside of the home really matters,” de Hart said.
Ginsburg wrote the ACLU’s brief in Craig vs. Boren, a major 1976 ruling that advanced gender equality by establishing that judges should use heightened scrutiny when reviewing the constitutionality of laws that make sex-based distinctions.
Twenty years later, Ginsburg reaffirmed that legal differences based on gender deserve heightened scrutiny when she wrote the Supreme Court’s majority opinion holding the Virginia Military Institute’s male-only admittance policy was unconstitutional.
Ginsburg had a “huge impact” as an attorney by being very careful about the cases she brought and recognizing that sex stereotyping burdens men as well as women, said Catherine Fisk, a law professor at the University of California, Berkeley.
“I can’t think of any living person who has had a greater influence on the law of sex discrimination than Ruth Bader Ginsburg,” Fisk said before Ginsburg’s death. “That’s not just workplace law, but every other aspect of the law.”