Ruth Bader Ginsburg

Background

Joan Ruth Bader was born on March 15, 1933 in the New York City borough of Brooklyn to Jewish parents. Having always been studious, she graduated Phi Beta Kappa from Cornell University in Ithaca, New York with a Bachelor of Arts degree in government on June 23, 1954. Ruth Bader was the highest-ranking female student in her graduating class. Bader married Martin D. Ginsburg, whom she met at Cornell, a month after her graduation. She went on to work at the Social Security Administration office in Oklahoma, where she was demoted at the age of 21, after becoming pregnant with her first child.

Ruth Bader Ginsburg enrolled in Harvard Law School in 1956, where she was subjected to scurrilous remarks from the Dean of Harvard Law, about her “taking the place of a man.” She subsequently transferred to Columbia Law School, where she graduated from, after her husband had secured employment in New York City. Ruth Bader Ginsburg tied for first position in her law school graduating class, after becoming the first woman to be on two major law reviews: the Harvard Law Review and Columbia Law Review.

Ruth Bader Ginsburg as an attorney

Despite graduating first in her class, Ginsburg found it difficult getting a job and was rejected for a clerkship by Supreme Court Justice Felix Frankfurter, because of her gender. Upon the recommendation of one of her Columbia Law Professors, Ginsburg would clerk for Judge Edmund L. Palmieri of the U.S. District Court for the Southern District of New York, in a position she held for two years. She worked as a litigator in the 70s and co-founded the Women’s Rights Project at the American Civil Liberties Union, which participated in over 300 women’s rights cases by 1974. Ginsburg was motivated by contemporary civil rights rulings dovetailing on the Equal Protection Clause of the Fourteenth Amendment requiring all people to be protected by the law. Many of the cases she was involved with in the 70s became landmark cases and not only advanced women’s rights, but also impacted the legal profession.

Between 1972 and 1980, Ruth Bader Ginsburg taught at Columbia Law School, becoming the first tenured woman. Ginsburg also co-authored the first law school casebook on sex discrimination.

Analysis of Two Landmark Cases

Having filed an amicus brief, Ruth Bader Ginsburg sat with counsel during oral argument for the case of Craig v. Boren. In the 1976 case of Craig v. Boren, the United States Supreme Court ruled that where gender discrimination is concerned, if a governmental regulation is substantially related to the achievement of an important government purpose then it is constitutional. The case involved a liquor vendor in Oklahoma named Craig, who filed a lawsuit against an Oklahoma state official, Boren, on the grounds that a statute violated the Equal Protection Clause of the Fourteenth Amendment.

Ruth Bader Ginsburg

The Oklahoma statute in question prohibited the sale of “non-intoxicating” 3.2 percent alcoholic beer to males under the age of twenty-one. However, the law also permitted the sale of the same beer to females over the age of eighteen. Craig lost the case as the district court supported the statute and held that statistical evidence showed that gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma’s roads based on an examination of drunk-driving arrests of young men and traffic injuries. The case was appealed to the United States Supreme Court, which deliberated on the question of whether the Equal Protection Clause of the Fourteenth Amendment was violated, when a law denies the sale of alcohol to individuals of the same age, based solely on gender.

The Fourteenth Amendment Equal Protection Clause bars state and local governments from treating individuals or classes of individuals differently under similar circumstances without sufficient justification. It provides that no state shall deny the equal protection of the laws to any person in its jurisdiction. The Court decided in favor of the plaintiff, Craig, opining that there was a violation of the Equal Protection Clause of the Fourteenth Amendment. However, on reaching its decision, the Supreme Court introduced a new standard of review called the “intermediate scrutiny” to heighten the review analysis on laws that discriminated based on gender and which implicated the Equal Protection Clause. This was in addition to the two standards of review that already existed: strict scrutiny and rational basis.

Justice William J. Brennan delivered the majority opinion and was joined by Justices White, Thurgood Marshall, Powell, and Stevens. Justices Blackburn, Stewart, Stevens, and Powell, all wrote concurrences. While Chief Justice Burger and Justice Rehnquist dissented.

In his opinion, Justice Brennan concluded that the appropriate standard of review for governmental gender-based classifications was intermediate scrutiny and stated that the classification must be “substantially related to the achievement of an important government purpose.” (Craig v. Boren). Thus, the Court examined Boren’s claim that the statistical data indicated that the state regulations were related to traffic safety. Justice Brennan opined that “even if the statistics are taken as accurate in showing the propensity of both sexes to drive under the influence of alcohol, the statistics show that 0.18 percent of females between ages eighteen and twenty were arrested for that offense, while 2 percent of males in that age group were arrested for the same offense.” (Craig)

Justice Brennan reasoned that while the difference was significant in terms of statistical data, it was not enough to justify a broad categorical rule that differentiated males and females, by proscribing the sale of alcohol to males, while permitting its sale to females in this group. Furthermore, Justice Brennan noted that no statistics were provided with regard to the use and relative danger of 3.2 percent alcoholic beer as compared to alcohol generally. (Craig)

Consequently, he opined that there was no justification for establishing a gender-based law governing the sale of “this particular beer and not alcohol in general” to males and females between the ages of eighteen and twenty. As such, the Court reversed the judgment of the district court, as the gender-based discrimination inherent in the Oklahoma law constituted a denial of equal protection of the laws to males between eighteen and twenty.

Twenty years later, sitting as a member of the United States Supreme Court, Justice Ginsburg would apply a heightened version of the intermediate scrutiny review of the Equal Protection Clause of the Fourteenth Amendment for which she had played a pivotal role in its development, as she delivered the majority opinion in a landmark case in 1996, United States v. Virginia.

In that case, the Supreme Court ruled that all governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification. (United States v. Virginia)

L-R, Justices Sotomayor, Ginsburg and Elena Kagan, currently the three women on SCOTUS, as of May 8, 2020.

In her opinion, Justice Ginsburg noted that while inherent differences existed between men and women, such differences were not to be used to denigrate members of either sex, or to establish artificial constraints that limit an individual’s opportunity. The Virginia Military Institute (VMI) had been founded in 1839 as the only single-sex public higher education institution in Virginia. Its objective was to use an “adversative” method to train men for leadership in civilian life and military service. To that end, it denied women entry through its admissions policy. However, in order to meet equal protection requirements, VMI established a separate program for women called the Virginia Women’s Institute for Leadership (VWIL), which was located at a private women’s liberal arts college. VWIL differed significantly from VMI in terms of the academic offerings it provided its female cadets, the level of instruction it delivered to them, and the financial resources it could access.

Consequently, in leading the 7-1 majority decision, Justice Ginsburg stated that VMI did not show “exceedingly persuasive justification” for its sex-based admissions policy. It was deemed that because VWIL did not provide women with the same type of rigorous military training, facilities, courses, faculty, financial opportunities, and alumni reputation, connections, and prestige which VMI provided male cadets, an equal protection violation had occurred. According to Justice Ginsburg, “The VWIL program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence.” (United States v. Virginia)

While Chief Justice Rehnquist voted in the majority, stating in his concurring opinion that VWIL did not provide an appropriate remedy, because of its lack of equal opportunities for women, he did contend with what he called the uncertainty in the application of the intermediate scrutiny analysis used in gender-based discrimination cases. Viewing the “exceedingly persuasive justification” as an unnecessary addition to the long-established standard of requiring gender-based classifications to be substantially related to an important government purpose, Chief Justice Rehnquist said it infused an element of uncertainty.

However, in his dissenting opinion, Justice Scalia stated that the majority completely ignored evidence that inherent physical differences exist in men and women, which justify requiring them to attend separate schools. (United States v. Virginia)

Feminist Theoretical Dichotomy: Individualist and Relational

Feminism is often misinterpreted by non-scholars, while the public generally has a circumscribed view of who feminists are. Therefore, it is important that we ground our understanding in doctrinal approaches propounded by rigorous work done by reputable scholars in feminist history. Karen Offen, a feminist historian and scholar at Stanford University, provides us with a useful dimorphic framework with which to interrogate the meaning of feminism. The individualist and relational feminist approaches can be used to analyze Justice Ginsburg’s life and work as a feminist.

Renowned feminist historian, Karen Offen, (PhD Stanford)

Karen Offen explores the meaning of relational feminism espoused in France and most of continental Europe, while shedding light on a different notion of feminism favored by Anglo-Saxon feminists, or American and British feminists from the 20th century—individualist feminism.

Briefly, relational feminism posits that womanhood has value and that society should provide programs that acknowledge, affirm, valorize, and reward women’s differentiated status. Valuing womanhood may be instantiated by maternal legislation that pays women for maternal leave for instance. The goal of the relational feminist is not to deemphasize gender difference but seek to underscore the value of women’s role in society and ensure their work is fairly rewarded or compensated. It may address the unpaid work of women as wives, who cook and clean for instance, and would emphasize the need for women to be paid for any labor they perform by virtue of being women. However, relational feminists’ emphasis on recognizing and valuing womanhood is pursued in tandem with enhancing the most favorable professional and educational opportunities for women.

On the other hand, individualist feminism deemphasizes sex difference and opposes gendered work. Individualist feminism is existentialist and underscores the autonomy of the woman. While a classic goal of individualist feminism is suffrage, and pursuing reproductive rights is also a central feature, full equal political, social and economic rights and possessing what men have are ideals of individualist feminism.  

To individualist feminists, sex differences serve as a tool for subordinating women, and thus, the need to eliminate policies fashioned along differentiating the sexes. Individualist feminists have been criticized as a bourgeois, possessive Anglo-Saxon and American reaction to rival male domination without intrinsically looking inward to women’s genuine needs. Whereas relational feminism is viewed as more woman-centered and woman-celebratory in its onslaught of male privileges.

Examining Ginsburg’s Feminism Using the Individualist-Relational Dichotomy

A prima facie examination of Ruth Bader Ginsburg’s feminist motivation in the case of Craig v. Boren, may lead us to conclude that the individualist strain of feminism, according to the Offen dichotomy we have laid out, is at work here. The case was focused on deemphasizing sex differences in dismantling a gender-based law, which permitted females to drink alcohol at a younger age than was allowable for males. Indeed, the individualist feminist approach pivots on deemphasizing sex differences between men and women, as it views gender differences as a tool for subordinating women. Therefore, adherents would also reject legislation predicated on sex differences such as the Oklahoma statute that lowered the drinking age for females but raised it for males.

However, let us not be misled into thinking that acolytes of relational feminism would support a law that is based on outdated stereotypes that may tend to injure women. The Oklahoma law differentiating the drinking age between males and females, is predicated on stereotypes straight out of the ark insinuating that women matured faster than men. Such insidious stereotypes tend to have deleterious effects on women, when we consider for instance that premature drinking does not have any direct advantage or benefits for teenage women.

Ruth Bader Ginsburg: a life of continuous learning

Consequently, while the elimination of this law may appear to be favored by individualist feminists, it would not be a law that is necessarily supported by relational feminists. Both relational and individualist feminists would oppose this law. Thus, Ruth Bader Ginsburg could be said to have exhibited both individualist and relational motives in her feminist advocacy in her opposition to the Oklahoma law. It is important to note that the policy goals of relational feminists vis-a-vis their individualist counterparts are not necessarily diametrically opposed.

Moving on to the case of United States v. Virginia: Justice Ginsburg wrote the majority opinion stating that Virginia’s policy of excluding women from VMI was unconstitutional. Perhaps a cursory examination may lead one to conclude that Justice Ginsburg’s motivation was based on the individualist strain of feminism. On its face, it may appear that the majority on the Court is saying that emphasizing sex differences between male and female students is wrong. This seems to be what Justice Scalia inferred in his dissent in which he claimed the majority completely ignored evidence that inherent physical differences exist in men and women that justify requiring them to attend separate schools.

However, Justice Ginsburg in her opinion did not necessarily say there were no sex differences that could justify separate schools in the VMI case. Justice Ginsburg merely stated that Virginia had not shown an exceedingly persuasive justification for VMI’s admission policy, which discriminated against women. Instead, the majority showed that the provision of a substandard alternative in a female only school, VWIL, violated the equal protection rights of women.

While relational feminists celebrate and value womanhood, they also advocate for educational and professional opportunities, and seek to remove barriers to their advancement. Gender-based discrimination predicated on outdated stereotypes do not advance the agenda of relational feminists in terms of professional development.

Conclusion

Justice Ginsburg’s background, life, and career provide ample support for the reason she is viewed as a liberal legal luminary who has championed women’s rights and equality for women. Grounding her work within the interrogative tools of Professor Offen’s individualist and relational feminist framework, helps to provide clarity on the utility of her work and her feminist achievements. The examination of some of the cases Justice Ginsburg has been involved with—Craig v. Boren and United States v. Virginia—suggests a nexus connecting the two approaches in her feminist motivation.  Thus, despite some of the apparent differences between the two feminist approaches outlined by Professor Offen, in practice there may be a tendency for both strains to be subsumed in a feminist’s strategy and work. This appears to be the case when we examine some landmark decisions that have involved Justice Ruth Bader Ginsburg.

Liberal legal luminary, Supreme Court Justice Ruth Bader Ginsburg