Ruth (Joan) Bader Ginsburg 1933-, Associate Justice of the U.S. Supreme Court (1993-), b. Brooklyn, N.Y. A graduate (1954) of Cornell Univ., she attended Harvard Law School, then transferred to Columbia Law School, graduating in 1959. She clerked in the U.S. District Court for the Southern District of New York, taught at Rutgers Law School (1963-72), and became (1972) the first woman full professor at Columbia. During the 1970s, as general counsel for the American Civil Liberties Union 's Women's Rights Project, she argued a series of cases before the Supreme Court that strengthened constitutional safeguards of sexual equality; she has been called the "Thurgood Marshall of women's rights." In 1980 President Carter appointed her to the U.S. Court of Appeals for the District of Columbia, where she displayed a belief in judicial restraint and took a position between sharply defined liberal and conservative factions. Nominated to the Supreme Court by President Clinton in 1993 to replace Byron White , Ginsburg has continued to act as a centrist, eschewing judicial activism.

Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg (born 1933) is known as the legal architect of the modern women's movement.

In 1960 a dean at Harvard Law School recommended one of his star pupils, Ruth Bader Ginsburg, to serve as a clerk to Supreme Court Justice Felix Frankfurter. Though Frankfurter, like others familiar with Ginsburg, acknowledged her impeccable academic credentials, he confessed that he was not ready to hire a woman. This was neither the first nor the last instance where Ginsburg was defined by her gender rather than her formidable intellect. But the rejection galvanized in Ginsburg a fighting spirit to right the wrongs that women suffered so routinely in American society. Thus, much as lawyer and former Justice Thurgood Marshall had converted the prejudice he faced as a black into the engine fueling his crusade to topple institutional racism, so did Ginsburg act on the lessons she had learned from her life. As the legal architect of the modern women's movement, Ginsburg, more than any other person, exposed a body of discriminatory laws anathema to the spirit and letter of the United States Constitution.

When President Bill Clinton announced the nomination of Ginsburg to fill the seat being vacated by retiring Supreme Court Justice Byron White, the initial reaction focused less on her qualifications and more on whatever the president had botched during the selection process. Clinton was accused of indecisiveness and insensitivity, as he had publicly dangled the names of other candidates—in one instance asking a Boston judge to prepare an acceptance speech—before giving the nod to Ginsburg. But once the political dust settled, Ginsburg's record guided the discussion. With few exceptions, legal observers praised her for both ground breaking advances she had won as a litigator and for the scholarly precision that had marked her 13-year tenure on the bench.

Faced Gender Discrimination

Ruth Joan Bader was born March 15, 1933, to Nathan and Cecelia (Amster) Bader in the Flatbush section of Brooklyn, New York to a comfortable middle-class family. Cecelia Bader was the driving force in her daughter's life, a role model at a time when women had to fight for the privileges and rights that men enjoyed by default. "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons," the New York Times quoted Ginsburg as saying in her acceptance of Clinton's nomination.

After graduating from high school, Ginsburg attended Cornell University where she graduated with high honors in government, and subsequently Harvard Law School, where she distinguished herself academically and served on the Law Review. In the "good old boy" male-dominated world of upper crust law, Ginsburg was told that she and her eight female classmates, out of a class of 500, were taking the places of qualified males. She transferred to Columbia University after two years, when her husband, who would become one of the country's preeminent tax attorneys, took a job in New York. But gender discrimination continued to overshadow her scholastic achievements. Although she graduated at the top of her class, law firms, which normally enter fierce bidding wars for such a star, refused to hire her.

First Tenured Female at Columbia Law

After a clerkship for District Judge Edmund L. Palmieri in New York, Ginsburg joined the faculty of Rutgers University where, in order to elude the Draconian employment policies covering child-bearing women, she concealed her second pregnancy by wearing clothes too big for her. At Rutger's she was only the second female on the school's faculty and among the first 20 women law professors in the country. In 1972, after teaching a course on women and the law at Harvard, which denied her tenure, she was snatched up as the first female faculty member in the law school's history. Although she wasted no time making a name for herself as a legal scholar, it was a litigator—she was counsel to the American Civil Liberties Union (ACLU), where she directed the Women's Rights Project—that her keen, laser sharp mind found its greatest outlet.

The women's movement took off in the early 1970s due to a confluence of factors, including the inspiration provided by the victories recently won by civil rights activists, the increasing number of working women outside the home and encountering employment discrimination, and a growing feminist awareness that the United States, though progressive in some areas, was laden with gender-discriminating institutions. For Ginsburg the central issue was the strategy she and others would use to force the desired changes in society. Just as years earlier the National Association for the Advancement of Colored People (NAACP) had recognized that racism needed to be tackled in the courts and not in the political arena—where, after all, the Jim Crow laws had been born—Ginsburg found her target in those laws by which society's inequalities were both tolerated and promoted. But, on a more basic level, Ginsburg turned to cases in which men and families, in addition to women, were victimized by government policies that discriminated on the basis of gender. A former ACLU colleague was quoted as telling Legal Times, "We were young and very green. She had it all so carefully thought through. She knew exactly what she needed to do."

Argued Women's Rights before Supreme Court

In a 1973 case before the Supreme Court, Ginsburg successfully argued against a federal statute that gave more housing and medical benefits to men within the armed service than to women. The statute allowed a man to automatically claim his wife as a dependent, even if she did not depend on his income, and thus claim the benefits, while the woman in uniform would qualify for those benefits only after showing that her husband received more than half his support from her. Speaking before an all-male court, Ginsburg expertly blew out of the water a government statute that, on the one hand, disadvantaged a man who is a dependent and, on the other, minimized the economic contributions of women. In another case, Ginsburg convinced the court that a provision of the Social Security Act discriminated against men and the families of women because it gave certain benefits to widows and not widowers. Ginsburg also convinced the court to strike down a law ostensibly benefiting women—an Oklahoma statute that women over the age of 18 could purchase alcohol while men needed to be at least 21.

By most accounts, had Ginsburg gone the route of arguing only those cases in which women were the victims of discriminatory laws, she would not have effectively revealed the absurdity and unconstitutionality of all laws that treat men and women differently. Indeed, the crux of her legal philosophy—that the law cannot proscribe rights to one group and not to another—would have surely collapsed if she sought to protect women more than men. She had little patience for the claim of some feminists that women think differently than men and are inherently better suited for certain activities, be it child-rearing or government service.

Having won five of the six cases she argued before the Supreme Court and showing, more than any other lawyer, that the equal protection provision of the Fourteenth Amendment applies not just on the basis of race but on gender, Ginsburg, in the waning days of President Jimmy Carter, was named a judge on the United States Court of appeals for the District of Columbia. Though Ginsburg has been hailed as the Thurgood Marshall of the women's movement, she unlike Marshall (who saw his judgeship as an opportunity to continue the activism and advocacy he practiced as a lawyer), brought a cautious, measured disposition to the court. Her belief, shared by many conservatives, is that, with few exceptions, the courts should interpret laws and leave policy-making in the electoral, political domain. Ginsburg further delighted rightists with her vote to dismiss an appeal by a homosexual sailor who was contesting his discharge from the Navy, and with her statement that affirmative action policies can backfire by demeaning the achievements of blacks. In 1987 cases that produced a division on the court, Ginsburg voted 85 percent of the time with Judge Robert Bork, an arch conservative whose nomination to the Supreme Court would be torpedoed by Democrats, and 38 percent of the time with Judge Patricia Wald, one of the court's staunchest liberals. Still, Ginsburg curried favor with liberals with her votes supporting freedom of speech and broadcasting access to the courts.

Supreme Court Justice

With the retirement of Justice Byron White, President Clinton reportedly sought out a replacement with the intellect to counter the court's chief conservative, Antonin Scalia, and the political skills to pull toward the left members of the court's pivotal centrist block. The first choice was New York Governor Mario Cuomo, who declined the nomination. When the name of Interior Secretary Bruce Babbit was floated, environmental groups successfully lobbied to keep him in his present position. The frontrunner in the final days was Boston Judge Stephen Breyer, who according to reports, had been told to draft an acceptance speech. But Clinton decided not to proceed with Breyer, evidently because the president was less impressed with the judge after the two met in the White House. Following that meeting, Clinton asked to see the results of the preliminary background check on Ginsburg, who had been on the short list for nomination.

While some commentators criticized Clinton for zig-zagging and for turning his back on Breyer, Ginsburg received the accolades of the legal community. Court observers praised her commitment to the details of the law, her incisive questioning of lawyers arguing before her, and her talent for winning over colleagues with dispassionate and well-reasoned arguments. Clinton was quoted in the New York Times as saying, "I believe that in the years ahead she will be able to be a force for consensus-building on the Supreme Court, just as she has been on the court of appeals, so that our judges can become an instrument of our common unity in their expression to their fidelity to the Constitution." Conservatives, grateful that a liberal ideologue had not been nominated, rallied behind Ginsburg, as did liberals, believing that they had found a foil to Scalia, even though the two jurists are good friends. In a widely reported joke, when Scalia was asked with whom he would want to be stranded on a desert island, Mario Cuomo or Harvard law professor Laurence Tribe, his answer was Ruth Bader Ginsburg.

Ironically, the loudest concerns about the nomination of this champion of equality came from some women's and abortion rights groups. Although pro-choice, Ginsburg, in articles and speeches, has questioned the reasoning underlying "Roe vs. Wade," the 1973 Supreme Court decisions protecting abortions under a right to privacy not explicitly mentioned in the Constitution. According to Ginsburg and a growing number of legal scholars, abortion rights are most convincingly grounded in the equal protection provisions of the Constitution rather than in a nebulous right to privacy. In keeping with her legal philosophy of judicial restraint—that is, minimizing the political activism of the court—Ginsburg has argued that state legislatures should have more flexibility than "Roe" provides, and that, at the time of the decision, the political atmosphere was favoring a liberalization of strict abortion laws, a claim disputed by some abortion rights advocates.

Confirmation to the Supreme Court often involves more a political brawl than a deliberative review of a nominee's record, but the Senate Judiciary Committee hearings on Ginsburg were remarkably free of rancor and partisanship. Setting the tone for the friendly hearings, Committee Chairman Joseph Biden, echoing statements of his Democratic and Republican colleagues, said according to the Boston Globe, that Ginsburg had "already helped to change the meaning of equality in our nation."

On August 3, 1993, Ginsburg was confirmed by the Senate in a vote of 96 to 3, becoming the 107th Supreme Court Justice, its second female jurist, and the first justice to be named by a Democratic president since Lyndon B. Johnson. She was then sworn in during August 10 ceremonies held at the White House and the Supreme Court itself. The three senators to oppose her confirmation were Republicans Jesse Helms of North Carolina, Don Nickles of Oklahoma, and Bob Smith of New Hampshire. President Clinton said in a statement quoted by the Detroit Free Press, "I am confident that she will be an outstanding addition to the court and will serve with distinction for many years."

Her First Term

According to the Tribune News Service, "In her rookie year on the Supreme Court, Ruth Bader Ginsburg proved to be anything but a novice…. {Ginsburg} proved assertive from the outset." Yet some Court observers, comparing her to former Justices Thurgood Marshall and William J. Brennan Jr., felt that she had not championed the underdogs as the former justices had and that her prose lacked compassion or combativeness.

In his nomination of Ginsburg, President Clinton felt that she would be a good counter balance for the conservative Antonin Scalia and an equalizing replacement for the conservative Justice Byron White. Since joining the Supreme Court, Justice Ginsburg, it is felt, has moved the court leftward, but not as much as the liberals had hoped. In her first term as a junior justice, according to Aaron Epstein of Knight-Ridder Newspapers, "Ginsburg strongly backed gender equality, solidly supported separation of church and state, opposed an expansion of property rights, argued to preserve protection of workers and opposed police, and prosecutors more often than most of her colleagues."

Women in the Judiciary

In a rare public appearance together, Justices Ruth Bader Ginsburg and Sandra Day O'Connor attended a program sponsored by the University of Pennsylvania Law School and the University's Annenberg Public Policy Center entitled Women and the Bench celebrating women in the judiciary. During the introduction of Ginsburg and O'Connor, Colin Diver, dean of the law school said, "every single woman who has ever served on the U.S. Supreme Court" was in attendance. This venue allowed some distinguished alumnae along with the justices and other women in the judiciary to recount their experiences and careers for their primarily law student oriented audience. While being appointed to the Supreme Court by President Bill Clinton, Justice Ginsburg attributed former President Jimmy Carter with changing the judicial landscape for women forever. She said, "He appointed women in numbers such as there would be no going back."

According to U.S. District Court Judge Phyllis A. Kravitch, "When Carter took office in 1977 there were only two women presiding over federal appeals courts and eight ruling in federal district courts. Now, besides the two women on the Supreme Court, 25 women judges sit in U.S. appeals courts and 100 in district courts…. And the states have all followed suit." Sandra Day O'Connor added, "About eight percent of the nation's judges are women."

While being applauded for stepping into her position as Supreme Court Justice without hesitation, some observers feel that she hasn't yet found her voice. Christian Kellett, law professor at Dickinson College in Carlisle, Pennsylvania feels, "She hasn't struck out on her own yet, but she is far more confident of her opinions than other junior justices have been. I think her influence has brought justices in the conservative middle over to the liberal side in some instances." Since taking office Justice Ruth Bader Ginsburg has written 35 significant opinions, two important concurring opinions, and three selected dissenting opinions.

Further Reading

Italia, Bob, and Paul Deegan, Ruth Bader Ginsburg, (1994).

Ayer, Eleanor H., Ruth Bader Ginsburg: Fire and Steel on the Supreme Court (1994, 1995).

Bredeson, Carmen, Ruth Bader Ginsburg: Supreme Court Justice (1995). □

Ginsburg, Ruth Bader (b. Brooklyn, N.Y., 15 Mar. 1933), associate justice, 1993–. President Bill Clinton appointed Ruth Bader Ginsburg to the Supreme Court in 1993, its second female justice. She received her undergraduate degree with high honors from Cornell University, where she met and married her husband, Martin D. Ginsburg. She then attended Harvard Law School but later transferred to Columbia Law School where she graduated in 1959 at the top of her class and as a member of the Columbia Law Review. Upon graduation from law school, she was rejected by New York City law firms and for a Supreme Court clerkship by Justice Felix Frankfurter. Ultimately, she clerked for the U.S. district court. She then returned to Columbia Law School, where she was a research associate and then research director at its Project on International Procedure. Ginsburg then joined the faculty at Rutgers University School of Law and later became the first tenured woman professor in the history of Columbia Law School. Over her career as a law professor she also visited at several law schools in the United States and abroad.

Women's Rights Advocate

Actively involved in numerous civil rights and liberties and women's rights groups throughout her career, Ginsburg cofounded the Women's Rights Project (WRP) of the American Civil Liberties Union. As the director of the WRP, she carefully devised a litigation strategy to bring a series of test cases to the Court to convince it to apply the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment to discrimination involving gender. Ginsburg personally argued several gender discrimination cases before the Court including Reed v. Reed (1973), which resulted in the Supreme Court, for the first time, interpreting the Equal Protection Clause to prohibit some forms of gender‐based discrimination. She also filed an amicus curiae brief on behalf of the WRP in Frontiero v. Richardson (1973) and even orally argued as amicus curiae in Frontiero, urging the Court to find that sex, like race, should be treated with strict scrutiny. Although she was unable to convince the Court to extend that standard to gender‐based classifications, she won five of the six cases she presented to the Supreme Court and in the process changed the federal courts' treatment of gender‐based complaints. As the architect of the WRP's legal strategy, Ginsburg repeatedly urged the Court to abandon the sex role stereotypes it had adopted in earlier cases. Ginsburg authored briefs for the appellants, appellees, or petitioners in nine gender‐based discrimination cases, and helped write amicus curiae briefs in fifteen additional cases.

While Ginsburg was engaged actively in the effort to convince the Supreme Court to apply a heightened standard of review to gender‐based classifications, she also co‐authored the first major sex discrimination casebook, Text, Cases, and Materials on Sex‐Based Discrimination (1974). This text became the basis for a host of other law professors to teach a new generation of women lawyers about the use of the courts to end a host of discriminatory practices against women.

On the Bench

In 1980, Democratic President Jimmy Carter was facing stiff opposition from women's groups in his effort to win his party's nomination for the presidency. Ginsburg's stellar reputation as an academic and as an advocate for women's rights made her a logical choice for Carter, who appointed her to one of the most politically contentious courts in the nation, the Court of Appeals for the District of Columbia Circuit.

Although some Republican senators voiced concern over what they perceived as her liberal views, once on the court of appeals, Judge Ginsburg surprised many court watchers. She frequently siding with conservative Republican jurists, notably unsuccessful Supreme Court nominees Robert Bork and Douglas Ginsburg, as well as with Antonin Scalia, eventually appointed by Ronald Reagan to the high court.

Her reputation as a middle‐of‐the‐road jurist on the court of appeals made her a logical nominee when President Clinton was faced with the opportunity to replace retiring Justice Byron White. Although Clinton initially considered several other jurists, Ginsburg's husband and a host of her former clerks and colleagues lobbied Clinton to appoint her as the second woman to the Court. As the first Democratic appointee to the Court in over twenty‐five years, her unanimous “Well Qualified” rating from the American Bar Association made her a welcome, noncontroversial appointee. Although some concern was voiced over her criticisms of the Court's grounding Roe v. Wade (1973) in the concept of a personal liberty instead of the Equal Protection Clause's guarantee against sex discrimination, Ginsburg was confirmed as the Court's 107th justice by a vote of 96 to 3. Her confirmation was the quickest in two decades. Only pro‐life groups—Americans United for Life, the Eagle Forum, the Family Research Council, March for Life, and the conservative Christian Coalition appeared before the Senate Judiciary Committee to protest her appointment.

Throughout her career on the bench, Justice Ginsburg has embraced the idea of equality. Unlike some judicial activists, and even sometimes in contravention to positions she took as an advocate for women's rights, Ginsburg has consistently stressed her belief that all three branches of government need to act together to achieve equal rights, even if doing so means the process may take longer than obtaining a single judicial solution. She has criticized the Roe decision (while agreeing with its results) believing that the Court acted too fast. Similarly, she has praised Congress for overturning Goldman v. Secretary of Defense (1984), a decision she made while on the court of appeals denying Jewish service members the right to wear a yarmulke on duty. Ginsburg noted that “the Constitution is the Constitution for the Congress of the United States, and it is addressed to this body before it is addressed to the courts.”

On the bench, she shows meticulous attention to detail and reveals her civil procedure training through her concern for practical applications of the law. She avoids historical debates about the meaning of the law, which her close friend on the Court, Justice Scalia, often evokes among justices who disagree with him. For example, she played no part in the debate over whether the views of Alexander Hamilton and James Madison should shape the Court's approach to gun control and the constitutionality of the Brady Bill. She is comfortable writing dissents and authors fewer each term than the average justice. Unlike other members of the Rehnquist Court, she is careful not to engage in sarcastic commentary or marked attacks on the legal reasoning of others. This moderation also can be seen in her continual stress on the importance of the legislature as the law‐making branch of government.

Through the October 2002 term of the Court, Ginsburg authored eighty opinions. Over one‐third were unanimous decisions evoking no controversy. Most frequently dissenting from the rest of her opinions were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Her usual allies on the Court are Justices John Paul Stevens, David Souter, and Stephen Breyer. Interestingly, she is just as likely to be in agreement with Justice Souter as she is with Justice Breyer, the only other Democratic appointee on the Court. She authors opinions most frequently in the area of civil procedure and is now regarded as the Court's resident expert on civil procedure, her initial area of teaching expertise. She also has a strong role for the Court in matters of gender discrimination and has helped create the law, first as an advocate and later as a justice.

Only in the area of sex discrimination has Justice Ginsburg led the Court with the zeal of a crusader. Perhaps her most notable constitutional decision to date is United States v. Virginia Military Academy (VMI) (1996). In a case that had been litigated in the federal courts for years due to the state‐supported VMI's refusal to admit women based on its belief that women were not up to its grueling program, Ginsburg, writing for the Court, appears to have convinced a majority of the Court to apply a heightened “skeptical scrutiny” standard to claims of gender discrimination. The VMI case, which came twenty‐five years after her participation in Reed, allowed her to note the Court's prior “pathmarking decisions” as the source of the constitutional standard to be applied in gender‐discrimination cases, the exceedingly persuasive justification test, which VMI failed to provide. Here her fervent dislike of sex‐role stereotypes was evident: generalizations about what is appropriate for “most women” would no longer justify denying opportunities to women (p. 515). Unlike other justices who as advocates had played major roles in major constitutional cases, Ginsburg's opinion was marked by her personal modesty. She made no references to herself or her seminal role in the development of gender‐based doctrine by the Court.

Justice Ginsburg has not been in the position to mold the Court's jurisprudence, even if it was in her nature to do so. She is one of the two most liberal justices on the Court, but not a liberal in the sense of earlier justices such as William Brennan. Although her career as a civil rights lawyer paralleled somewhat that of Thurgood Marshall, the last Democrat before her appointed to the bench, Ginsburg's judicial philosophy does not allow her to stake out truly liberal positions on the Court, even in dissent. Although liberal by Rehnquist Court standards, she is a judicial moderate in all areas except those involving gender discrimination, which she interprets to include reproductive rights for women.

Bibliography

Ruth Bader Ginsburg , Sexual Equality and the Constitution, Tulane Law Review (1978): 451–475.
Melanie K. Morris , Ruth Bader Ginsburg and Gender Equality: A Reassessment of her Contribution, Cardozo Women's Law Journal (2002): 1–25.
Karen O'Connor , Women's Organizations' Use of the Courts (1980).
Karen O'Connor and and Barbara Palmer , Ginsburg, Breyer, and the Clinton Legacy, Judicature (March–April 2001): 262–273.
Laura Krugman Ray , Justice Ginsburg and the Middle Way, Brooklyn Law Review (2003): 629–682.
Christopher Smith , etal. The First Term Performance of Justice Ruth Bader Ginsburg, Judicature (September‐October 1994): 74–80.

Karen O'Connor