Florida Bar Journal

Remembering RBG: A Look Back at the Life and Legacy of a Legend, a Year After Her Passing

Supreme Court Justice Ruth Bader Ginsburg, the second woman to serve on the U.S. Supreme Court and a pioneer of women’s rights, died on September 18, 2020. Though small in stature, her impact on American jurisprudence is enormous. No one article can do her career and accomplishments justice, but with a little over a year after her passing, this article celebrates and reflects on the mark she left on the law.

Ruth Bader Ginsburg was born in Brooklyn on March 15, 1933, to Nathan and Celia Bader. Her older sister, Marilyn, died from meningitis when Ginsburg was only two, leaving Ginsburg an only child.^[1] She grew up in a family with modest means. Her father, Nathan, moved to the United States from Russia at the age of 13.^[2] Her mother, Celia, was the first American-born in a family of Austrian Jewish immigrants, and she passed onto Ginsburg a love of reading.^[3] While Celia was unable to attend college herself — she worked in Manhattan’s garment district to allow her brother to attend Cornell University — she dreamed of more for her daughter. She saved a portion of the money she received from her husband every week for a secret college fund for Ginsburg.^[4] Tragically, she was unable to see her dreams for Ginsburg come to fruition. During Ginsburg’s freshman year at James Madison High School, Celia was diagnosed with cervical cancer. She died the day before Ginsburg’s high school graduation at the age of 48.^[5]

Fulfilling her mother’s dreams, Ginsburg attended Cornell University on scholarship. There, she met her husband, Martin D. Ginsburg (Marty). She described Marty as “the only young man I dated who cared that I had a brain.”^[6] It was during their time together at Cornell that they both decided to pursue law degrees. In Marty’s words, the idea was “to be in the same discipline so there would be something you could talk about, bounce ideas off, [and] know what each other was doing.”^[7] Ginsburg married Marty after her graduation from Cornell in the spring of 1954. Following Ginsburg’s graduation and Marty’s first year at Harvard Law School, Ginsburg and Marty reported to Fort Still, Oklahoma, where Marty began a two-year career as an artillery training officer.^[8] Ginsburg worked first as a law firm secretary and then as a Social Security claims adjuster. When she became pregnant with her first child, Jane, she was disheartened to learn that her job would no longer give her raises or promotions.^[9]

Following their time in Oklahoma, Ginsburg started law school at Harvard in 1956, becoming one of only nine women in a class of roughly 500 men.^[10] Of the experience, Ginsburg recalled: “You felt that every eye was on you. Every time you answered a question, you felt you were answering for your entire sex.”^[11] Despite this, Ginsburg excelled, managing to secure a coveted spot on the Harvard Law Review. While at Harvard Law School, Marty fell ill with testicular cancer. Thus, in addition to raising their daughter, Jane, caring for Marty, and excelling in her own classes, Ginsburg assisted Marty with his classes, arranging for the best note-takers to take notes for him and typing up the notes herself at night. Upon graduation, Marty secured a job in New York City, and Ginsburg transferred to Columbia, where she graduated first in her class.

Even with impeccable academic credentials, Ginsburg could not secure a job with a major New York law firm following graduation. She attributes this to the “three strikes” against her: She was Jewish, female, and a mother.^[12] Clerkships, too, were hard to obtain for women; after submitting several applications for clerkships with the Second Circuit, Ginsburg finally obtained a clerkship with a judge at the Southern District of New York through the assistance of Gerald Gunther, a Columbia faculty member in charge of helping students obtain post-graduation clerkships.^[13] In order to secure a clerkship for Ginsburg with Judge Edmund Louis Palmieri, Gunther had lined up a young male graduate working with a New York City law firm to replace Ginsburg if she did not work out to Judge Palmieri’s satisfaction.^[14] Ginsburg, however, quickly erased any of Judge Palmieri’s doubts with her work.

With Ginsburg’s sterling academic record at a top law school, Ginsburg should have been a prime candidate to secure a prestigious clerkship at the U.S. Supreme Court. Supreme Court justices, though, were also reluctant to hire women. When Professor (later Dean) Albert Sacks of Harvard Law School inquired about a clerkship for Ginsburg with Justice Felix Frankfurter, Frankfurter informed Sacks that he was not ready to hire a female clerk.^[15] Thus, after her two-year clerkship with Judge Palmieri concluded, Ginsburg chose to return to Columbia to work on a project on international civil procedure.^[16] Thereafter, she accepted a job as a professor at Rutgers Law School. While Ginsburg would have preferred to get hands-on experience at a law firm before moving into academia, she worried that she would not get another opportunity to enter the academic field if she declined the Rutgers job.^[17] Accordingly, she began her teaching career at Rutgers in 1963, becoming one of less than two dozen women teaching on the tenure track of American law schools.^[18]

During her time at Rutgers Law School, Ginsburg became pregnant with her second child, James. This time, Ginsburg kept the pregnancy a secret, fearing it would cause Rutgers to cancel her year-to-year contract.^[19] It wasn’t until her contract was renewed that she told her fellow faculty members. The next academic year, Ginsburg was promoted from assistant to associate professor, and she was awarded tenure in the fall of 1969.^[20] Ginsburg attributes her time at Rutgers, and the women she met there, with her entry into the field of gender equality law.^[21] While putting together materials for her new course, Women and Law, Ginsburg read every federal decision ever published involving women’s legal status, noting that the undertaking “was no grand feat. There were not many decisions, and not much in the way of commentary.”^[22]

It was during her time at Rutgers that Ginsburg started working on New Jersey ACLU’s cases. Her first big case, though, came from her husband, Marty. Reading tax court advance sheets one evening, Marty discovered the case of a taxpayer named Charles Moritz.^[23] Moritz, who never married, took care of his mentally and physical disabled mother in his home. When he tried to take a tax deduction for hiring a caretaker to help his mother, the IRS rejected it. Under the tax code, a single woman could earn a deduction for expenditures for care of a disabled dependent so the taxpayer could work, but single men did not qualify.^[24] After Moritz, representing himself, lost his case in tax court, Marty and Ginsburg represented him on appeal to the 10th Circuit and won.^[25] In the Moritz brief, Ginsburg argued for the first time that sex-based classifications should be treated as “suspect” and subject to “strict scrutiny” by courts reviewing their constitutionality under the equal protection clause.^[26]

After Rutgers, Ginsburg accepted a job at Columbia Law School as Columbia’s first tenured woman professor.^[27] There, she taught a course on sex discrimination and the law. She remained at Columbia until 1980, when President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia.^[28] Ever Ginsburg’s cheerleader, Marty gave up his lucrative New York law practice to move with Ginsburg to Washington.^[29] On the D.C. Circuit Court, Ginsburg developed a reputation as a centrist judge. Her friend, Professor Jeffrey Rosen, described her as “a paragon of judicial restraint.”^[30]

Ginsburg’s centrist reputation on the D.C. Circuit served her well. In 1993, President Clinton nominated Ginsburg to become the second woman on the Supreme Court, where she joined Justice Sandra Day O’Connor. Her nomination to the Court was in no small part due to the advocacy of her husband, Marty. Though Ginsburg greatly coveted a spot on the Court, she also knew that “a potential nominee could not be perceived as promoting herself” because doing so “would have been seen as a breach of decorum.”^[31] Marty, thus, took up the job of campaigning for Ginsburg himself, a task made more difficult by Ginsburg’s lack of support from women’s groups who held Ginsburg’s critique of Roe v. Wade against her.^[32] With Marty’s efforts, though, Ginsburg secured the nomination. Remarking on Marty’s constant, selfless support of Ginsburg’s career, Ginsburg advises: “If you have a caring life partner, you help the other person when that person needs it. I had a life partner who thought my work was as important as his, and I think that made all the difference for me.”^[33]

In her nearly 30 years on the Court, Ginsburg was perhaps best known for her powerful and sometimes scathing dissents. She also, however, authored more than 200 majority opinions.^[34] A few of her most noteworthy opinions are discussed below.

United States v. Virginia

Just three years into her tenure on the Court, Justice Ginsburg authored the majority opinion in the landmark decision of United States v. Virginia, 518 U.S. 515 (1996), which opened the prestigious Virginia Military Institute (VMI) to women under the Constitution’s Equal Protection clause.^[35] VMI was established in 1839 as one of the country’s first military colleges and, at the time of the opinion, enrolled about 1,300 male-only cadets.^[36] In 1990, a female student seeking admission to VMI filed a complaint with the attorney general, which prompted a lawsuit against the Commonwealth of Virginia and VMI on the basis that VMI’s admissions policy of accepting exclusively male students violated the Equal Protection Clause of the 14th Amendment.^[37]

The district court ruled in favor of VMI, holding that it had demonstrated “sufficient constitutional justification” for its single-sex policy. Ironically, one of the arguments advanced to support the exclusion of women from VMI was that the policy supported diversity, with the district court reasoning: “VMI’s school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was enhanced by VMI’s unique method of instruction.”^[38] The Fourth Circuit Court of Appeals disagreed and vacated the district court’s judgment. On remand, Virginia proposed to establish a parallel program for women at Virginia’s Women’s Institute for Leadership (VWIL), and the district court held that this proposal satisfied the requirements of the Equal Protection Clause.^[39] A divided court affirmed, opining that allowing women to participate in VMI’s adversative training “would destroy…any sense of decency that still permeates the relationship between the sexes.”^[40] The appellate court determined that while VWIL lacked the “historical benefit and prestige” of VMI, the opportunities at the two schools were sufficiently comparable to pass constitutional muster.^[41]

Writing for the majority, Justice Ginsburg explained that in cases of official classification based on gender, the state must show that the justification for the differential treatment or denial of opportunity is “exceedingly persuasive,” that the classification serves “important governmental objectives,” and that the means employed are “substantially related to the achievement of those objectives.”^[42] Holding that Virginia failed to satisfy this standard, Justice Ginsburg wrote: “Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options.”^[43] Justice Ginsburg likened VMI’s concern that women would downgrade its stature and destroy its adversative system with historical fears about admitting women to the practices of law, medicine, and policing, and concluded that women’s successful entry into federal military academies and the U.S. military debunked Virginia’s fears.^[44] In acknowledging VMI’s mission to produce “citizen-soldiers…imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready to defend their country in time of national peril,” Justice Ginsburg opined that “[s]urely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men.”^[45]

In rejecting Virginia’s proposed “parallel” program for women as an acceptable remedy, Justice Ginsburg reasoned that “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”^[46] For the women who would welcome and excel at VMI’s program, Justice Ginsburg wrote that “[i]t is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will ‘bar like discrimination in the future.’”^[47] Forced to act by the ruling, the VMI board narrowly voted 9-8 to admit women beginning with the 1997 school term.^[48] The country’s only other state-supported, all-male military college, the Citadel, also enrolled four women in its first-year class following the opinion.^[49]

Ledbetter v. Goodyear Tire

Fourteen years after United States v. Virginia, Justice Ginsburg authored one of her most famous dissents in the case of Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Justice Alito authored the majority opinion, holding that petitioner Lilly Ledbetter had abandoned her claim under the Equal Pay Act.^[50] Lilly Ledbetter worked for Goodyear in Gadsden, Alabama, for almost 20 years. Shortly before her retirement, she submitted a questionnaire to the EEOC alleging sex discrimination, and later filed a formal charge.^[51] At the district court, Ledbetter introduced evidence that she received poor evaluations because of her sex, resulting in lower pay increases that affected her pay throughout her employment.^[52] By the end of her time with Goodyear, she was paid substantially less than all her male colleagues. The jury found in her favor and awarded backpay and damages.^[53]

Goodyear appealed, arguing that, under Title VII’s 180-day time limitation for filing a discrimination charge, Ledbetter’s claim was time-barred respecting any pay decisions made prior to 180 days before the filing of her EEOC questionnaire, and the 11th Circuit Court of Appeals reversed the district court’s ruling. Ledbetter filed a petition for a writ of certiorari in the Supreme Court and asked the Court to determine

[w]hether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.^[54]

Relying on precedent, the majority held that “the EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.”^[55] Thus, the Court affirmed the 11th Circuit’s decision that Ledbetter’s claims were time barred.^[56]

Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, dissented. Justice Ginsburg opined that because pay disparities often occur in small increments over time, they are different from discrete acts of discrimination like termination or refusal to hire or promote.^[57] Complainants are unlikely to fully realize the discrimination and complain until the disparity in pay become sizeable and apparent.^[58] Justice Ginsburg distinguished the precedent relied on by the majority, instead likening pay disparities to hostile work environment claims where the Court’s precedent provided that “[t]he unlawful employment practice in hostile work environment claims, cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”^[59]

In Ledbetter’s case, Justice Ginsburg noted that she “charged insidious discrimination building up slowly but steadily.”^[60] Ledbetter’s salary did not fall significantly behind that of her male counterparts until successive pay adjustments had been made over time, with each new paycheck contributing “incrementally to the accumulating harm.”^[61] Justice Ginsburg lamented that the majority’s interpretation was “totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.”^[62] She concluded by stating that “the ball is in Congress’s court,” urging the legislature to act to correct the majority’s “parsimonious reading” of Title VII.^[63] Congress did just that, enacting the Lilly Ledbetter Fair Pay Act of 2009, which clarified that discrimination based on age, religion, national origin, race, sex, or disability “accrues” each time the employee receives a paycheck that is deemed discriminatory. Justice Ginsburg considered the law one of her proudest achievements, and a framed copy of the act hung on the wall of her chambers.^[64]

Shelby County v. Holder

It was Justice Ginsburg’s dissent in the 2013 decision Shelby County v. Holder, 570 U.S. 529 (2013), that earned her the moniker “Notorious RBG,” a play on late rapper Biggie Small’s nickname, “Notorious B.I.G,” after a NYU law student frustrated with the majority’s decision in Shelby created a Tumblr bearing the name.^[65] When asked if she felt uncomfortable about the comparison with the rapper, she reportedly said: “Why should I feel uncomfortable? We have a lot in common. First and foremost, we were both born and bred in Brooklyn, New York.”^[66]

In the case itself, the Court addressed the Voting Rights Act of 1965, which required certain states to obtain federal permission prior to enacting any law related to voting as a measure to address entrenched racial discrimination in voting.^[67] In 2010, Shelby County, Alabama, sued the attorney general seeking a declaratory judgment that the act’s requirements were facially unconstitutional.^[68] Both the district court and court of appeals upheld the act, and the Supreme Court granted certiorari.^[69]

The majority held the act’s requirements infringed on state sovereignty and, in particular, the “fundamental principle of equal sovereignty among the [s]tates.”^[70] The majority reasoned that while these departures were justified in 1965, the changed environment 50 years later rendered them unconstitutional. The majority discussed that while the years had seen great improvements in discriminatory voting practices, largely because of the Voting Rights Act, the act’s requirements had grown more, rather than less, stringent.^[71] Finding that the challenged portions of the act were no longer constitutional in light of current conditions, the majority struck them down, concluding that “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.^[72]

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented. Justice Ginsburg reasoned that “[t]he number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy.”^[73] While acknowledging that conditions had improved since passage of the act, she echoed Congress’ concern that eliminating the preclearance requirement would “risk loss of the gains that had been made.”^[74] She lamented:

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proved effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself.^[75]

A 2018 study conducted by an assistant professor of public policy at Harvard Kennedy School ostensibly confirmed Justice Ginsburg’s fears, finding that minority voter turnout in the first national election following the Shelby decision declined sharply in counties once subject to federal oversight.^[76]

There are many, many more opinions authored by Justice Ginsburg that are worth discussing, far too many for this article. Justice Ginsburg worked to the end, authoring her final dissent on July 8, 2020, just two months before her death, in the case of Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020). Her legacy lives on, and she will be forever honored by many as a champion of progressive causes. As she famously said: “I would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability.” And so she shall.

This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.