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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

G, Ginsburg, Ruth Bader

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 May 2019

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 (p. 393) 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.

Ruth Bader Ginsburg

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 (p. 394) 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.

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 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, et al. “The First Term Performance of Justice Ruth Bader Ginsburg,” Judicature (September-October 1994): 74–80.

Karen O’Connor