Ruth Bader Ginsburg has passed away at a time when her loss to the US Supreme Court — and to America – promises to wreak havoc on the American political scene. Rest in peace, dear “notorious” RBG. And deepest condolences to her family, friends, colleagues, law clerks and admirers. She is someone who reached out to and embraced a wide audience. “Fight for the things that you care about,” she said. “But do it in a way,” she emphasized, “that will lead others to join you.” I am among those who benefited and learned from this commitment of hers to both action and inclusiveness.
It all started for me when I went to my first meeting as a new member of the ACLU Board. I had just been elected to the Board from the North Carolina affiliate where I had been recruited by the state director, Betsy Brinson, to lead a newly formed action committee on gender equality. It was a time, 1972, when women’s rights had started to stir things up a bit, and I had become a convert to the possibility of “mainstreaming” feminism. It was no longer just for an “alienated fringe” of society but something that belonged, I believed, at the center of our daily lives. Nonetheless, it was still at the early stages of moving in that direction. So there I was, both chairing a statewide initiative for the North Carolina affiliate and breaking new ground as the first woman to represent the affiliate at the national level.
Yes, even the ACLU Board was undergoing a transition. When I entered the large conference room in one of those fancy New York City hotels overlooking Central Park, I nervously searched for a place to sit. Most of the seats were already filled on each side of the three long rows of tables. In front was a slightly elevated platform where the Board’s presiding officials and staff were busy chatting and shuffling their papers. I did manage to find a seat somewhere in the middle of the room and looked around at all of the strangers – overwhelmingly men, as I recall. Yes, they were mostly older white men, as I recall. But again, there I was! And there was RBG – on the platform!
I have already written about my personal impressions of this experience in a musing entitled “ACLU Reflections” that I posted on this website in January 2018. But the focus here is on my impressions of RBG whom I came to know as the head of the ACLU Women’s Rights Project, a new national initiative that was far more detailed and ambitious than my modest efforts at the North Carolina level. The Board agenda included a discussion on the interplay between support for the Equal Rights Amendment and support for broadening the applicability of the equal protection clause of the 14th Amendment. (One might note that the ACLU had only recently come around to the notion that equal protection for men and women was better than preferential protection of the “weaker” sex.)
The momentum in the Board debate was toward a dual strategy of advocating state legislative ratification of the ERA and bringing or supporting cases up through the court system on the 14th Amendment. I was personally very deeply engaged in the ERA effort, but I had a lot to learn about the 14th Amendment strategy. The goal for that latter strategy, as RBG explained, was to get the Supreme Court to apply what was known as “strict scrutiny” of the equal protection clause for gender in the same way as that doctrine applied to race. This was, of course, a big challenge since the 14th Amendment had been adopted at a time when women did not even have the right to vote! And there was quite a bit of judicial precedent to overcome, but then the same had been true of race and the 14th Amendment. How can we forget the judicial ruling of “separate but equal” from the 1890’s, after all?
As RBG laid out the litigation strategy for this 14th Amendment track, I was awestruck! This was a long-term strategy and a very technically elaborate one at that. And I continued to be awestruck by the complexity and thoroughness of the strategy. Over the years – and yes, it took several years – RBG regularly reported to the Board on the progress. Without going through a list of the cases or the legal technicalities of each one, suffice it to say that it definitely evolved, step by step. Not only was it carefully thought out, a deliberate strategy to change the course of constitutional law through a series of cases sequentially developed to move judicial interpretation in a certain direction; but it was also driven by a determination to change the minds of the justices on that overwhelmingly male Supreme Court. As RBG repeatedly emphasized, the strategy was to fight for gender equality, to be sure, but to do so by getting those Supreme Court justices to join the fight.
The evolution of case law, as it unfolded, required an adjustment in the strategy too. My own recollection is that the strategy hit a bump in the road with a case that didn’t fit the strategy and threw it off course. But a more complete recollection is aided by a read-through of the excellent account of those years in Raising the Bar: RBG and the ACLU Women’s Rights Project by Amy Leigh Campbell (published in 2004). The ACLU played a role in 34 different Supreme Court cases , and RBG herself argued six of the pivotal ones in that eight-year period leading up to 1980. While there was indeed a bump or more in the road, the end result was the inclusion of gender in the application of that equal protection clause – just with a new standard of scrutiny, referred to as “intermediate” scrutiny (first mentioned in the case of Craig v. Boren 429 U.S. 190 (1976)). This might not have been as high a bar as “strict” scrutiny, but the bar had been dramatically raised as a result of the carefully nurtured accumulation of cases up to this one. And it was the turning point for establishing a judicial standard for gender that helped guide and solidify its subsequent application in other significant cases.
Those were pivotal cases and pivotal years. Gender is now covered in the constitutional law on the 14th Amendment, thanks to RBG and the implementation of this deliberately conceived litigation strategy. It is only recently that I have become aware of how it paralleled and was actually modelled on the litigation strategy for civil rights that led to Brown v. Board of Education, 347 U.S. 483 (1954). Having just read a fascinating account of this strategy from the perspective of a courageous team of lawyers and plaintiffs in Virginia in We Face the Dawn, written by Margaret Edds (published in 2018), I understand why RBG has been identified as the Thurgood Marshall of gender equality. The NAACP under Thurgood Marshall had successfully worked on a long string of cases, many of which came out of Virginia, that had been carefully chosen and effectively argued before the Supreme Court to overturn and replace that awful “separate but equal” doctrine.
On a personal front, I benefited from witnessing this history in the making at the ACLU Board. It was a mid-career experience for me, but it convinced me to think once again about law school. How difficult it must have been for RBG to overcome all those barriers for women in the legal profession of the 1950s and 1960s. She prevailed in spite of the put-downs by the dean at Harvard Law School and the closed doors at all of the New York law firms. I myself had been discouraged by my faculty advisor to even take the law school exams when I was in college. (Of course, it didn’t help that my father thought all lawyers were parasites – unlike the medical or theological professions that he had chosen.) So she was a belated inspiration for me to go back to school for that law degree.
In those same years, the ERA came close to ratification. I was also a part of that effort, although I have always wished since then that I had done more to reach that goal. Having been elected (and twice re-elected) to the NC Senate with the support and active involvement of a marvelous team of equal rights advocates, I was there, voting aye on the Senate floor when the ERA was narrowly defeated – not once but twice – in 1975 and 1977. A sunset clause in the accompanying Congressional resolution went into effect after that, and the ERA was shelved. I took RBG’s advice to heart and tried to get those nay voters to come around, but that is another story.
What is relevant to observe here is that RBG herself did not give up. Even under the 14th Amendment, more was yet to be done. It was years later that RBG would be a sitting justice on that same Supreme Court when another landmark ruling came along, with the opportunity to write the majority opinion! This happened in 1996, just three years after she had been appointed to the Supreme Court by President Bill Clinton and confirmed by the US Senate by a remarkable vote of 96 to 3. In the case of United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court overturned the male-only admission policy of the Virginia Military Institute in an 8 to 1 decision. And that was the end of an era in public education – the last all-male public university in the United States.
There is no need here to elaborate on the wording of her opinion, other than to note that her dear friend and ideological opposite Justice Antonin Scalia complained that she had succeeded in getting to the equivalent of that ultimate goal, a “strict” scrutiny standard for gender, even though she had not used those words. It seems that even RBG agreed that this VMI decision basically ended the need for the ERA.
Ruth Bader Ginsburg continued to serve on the US Supreme Court in the years since then, and one has to wonder what the US might have become if she had continued to be part of the majority in Supreme Court decisions. Instead, the Supreme Court has moved to the right – as have many of the lower courts. And thus, her role evolved into becoming an articulate author of minority opinions, even on gender issues, sad to say. It was a role she took on with gusto, knowing that minority opinions can set the stage for a different long-term strategy. And, along the way, she became an icon, the “notorious” RBG. She was a workaholic, a conscience, a believer in incrementalism and collegiality, an enduring advocate of gender equality, an inspiration. Rest in peace, RBG. As for the ERA, on the other hand, the Commonwealth of Virginia may yet have another pivotal role to play when its legislators voted, belatedly, in January 2020, to be the 35th state to ratify the ERA.