This article is part of a symposium on the jurisprudence of the late Justice Ruth Bader Ginsburg.
Katherine Franke is the James L. Dohr professor of law and director of the Center for Gender and Sexuality Law at Columbia University.
Supreme Court Justice Ruth Bader Ginsburg will be remembered as the principal architect of the law of sex equality. There are three key components to her conception of sex-based justice worth considering as we digest her larger life and legacy as an advocate, teacher and member of the Supreme Court.
First, understanding Ginsburg’s legacy is enhanced by an appreciation of how she was a proceduralist at heart. In the early 1960s, Ginsburg traveled to Sweden and learned Swedish to work on a project with legal scholar Anders Bruzelius on the rules of civil procedure in Europe. That early love of procedure informed, if not underwrote, her approach to sex equality.
Ginsburg’s conception of sex-based equality rested on an underlying commitment to liberal humanism: Every person should be judged individually and not on the basis of stereotypes or generalizations associated with the class of person to which one belongs. On this account, we all share a basic humanity, and should be viewed as people, not sexed bodies. The wrong of sex discrimination, thus, lay in being treated “as a woman” or “as a man.” In this respect, her approach to sex discrimination mirrored a liberal approach to race discrimination, and demanded the application of sex-blind decision-making (to borrow a rather out-dated and insensitive term) in employment, housing, education and other parts of civic life. “Sex, like, race is a visible, immutable characteristic bearing no necessary relationship to ability,” she advised the court in her oral argument in Frontiero v. Richardson. “Because a person’s skin color bears no necessary relationship to ability, similarly — as appellees concede — a person’s sex bears no necessary relationship to ability.”
We should understand Ginsburg’s notion of sex equality as proceduralist in nature because it imposes a test to ferret out discrimination that is more method than substantive in nature. Rather than urging courts to apply a substantive analysis of the kind of power that results in sex-based inequality, such as patriarchy, the Ginsburg approach instructs courts to ask a simple question: Was the treatment of a person “on account of” or “on the basis of” their sex? If so, then sex discrimination was afoot, because a person’s sex should be irrelevant to the determination of their qualifications for a social good or bad, just as consideration of a person’s race is presumptively illegitimate.
But liberal feminism did not dominate feminist thinking at the time. Cultural feminists regarded this approach as desperately wrong-headed insofar as it ignored the ways in which women were different from men. They argued that those differences should be celebrated, not erased. They also argued that the liberal feminist approach taken by the likes of Ginsburg provided no leverage for addressing pregnancy discrimination – one of the central and material forms of sex-based discrimination that rested on real differences between men and women. Dominance feminists offered a competing critique of liberal feminism, most notably summed up by Catharine MacKinnon as: “Why should you have to be the same as a man to get what a man gets simply because he’s a man?”
Nevertheless, a liberal approach to sex discrimination emerged as the dominant legal framing of the matter in large measure as a result of Ruth Bader Ginsburg’s work as an advocate in the 1970s, and we see it reflected in the court’s decisions in Reed v. Reed (1971), Frontiero (1973), Weinberger v. Wiesenfeld (1975) and Craig v. Boren (1976).
The second aspect of Ginsburg’s conception of justice is that she always insisted that the material reality of sex discrimination remains central to the legal analysis of sex-based classifications. Her oral argument before the Supreme Court in Weinberger provides an excellent example. The case challenged a Social Security Act rule that allowed a wife to inherit the social security benefits of her deceased husband, but not a husband to inherit the benefits of a deceased wife. Her oral argument in the case was stunning, brilliant and detailed when it came to describing how sexism worked in daily life:
In practical effect, laws of this quality help to keep women not on the pedestal but in a cage. They reinforced, not remedy, women’s inferior position in the labor force … Its attention to the families of insured male workers, their wives, and children is expressed in the scheme that heaps further disadvantage on the woman worker, far from rectifying economic discrimination against women … The impact is to encourage the traditional division of labor between man and woman to underscore twin assumptions; first, that level for paying, including attendant benefits, is the prerogative of men; and second, that women, but not men, appropriately reduce their contributions in the working life to care for children.
The means of proving discrimination as argued by Ginsburg was procedural in nature — was Stephen Wiesenfeld denied benefits “on account of his sex”? — yet this rule was nested within a very thick description of the nasty work that sex discrimination accomplished in real people’s lives. We saw Ginsburg make similar moves when she transitioned from advocate to justice. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the court ruled that the statute of limitations on a sex discrimination claim starts running when the discrimination commences, not when the party being discriminated against learns of the discrimination. In a strong dissent, Ginsburg offered a homily on how sex discrimination really operates in the workplace: “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops over time. Comparative pay information, moreover, is often hidden from the employee’s view.”
Finally, a third aspect worth noting as we consider Ginsburg’s legacy is that she was more committed to a politics of equality than liberty, in contrast to, say, her colleague Justice Anthony Kennedy. Unlike many reproductive justice advocates of the 1970s and today, Ginsburg regarded sexual liberty – including reproductive rights – not necessarily as an end in itself, but as instrumental to the larger cause of sex-based equality. Ending pregnancy-related discrimination and ensuring access to the full range of reproductive health care – including contraception and abortion – were necessary in order to secure women’s workplace and civic equality, in her view. In her briefs and judicial opinions, she returned to a notion that women could never be fully equal in the workplace or enjoy the status of full and equal citizens if they could not control their reproductive lives. In this sense, protecting reproductive rights and sexual liberty were a means of securing women’s equality to men. She was less inclined to defend sexual rights as independently fundamental.
When Ruth Bader Ginsburg, barely five feet tall even in her pumps, stood to argue her case before the Supreme Court in Duren v. Missouri (1979), Chief Justice Warren Burger leaned toward her and said, “Mrs. Ginsburg, you may lower the lectern if you would like.” She replied, “Yes, I could do that.” “Yes, I could do that” captures the ethos of her work as an advocate advancing the cause of sex equality, and her power, brilliance and bravery as a jurist. She was not a radical feminist, but rather her approach to sex equality was shaped by, and then in turn shaped, what the law could accomplish in eradicating sex-based classifications and stereotyping in a wide range of contexts. As she ended her oral argument in Frontiero, quoting powerful words from Sarah Grimke, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
Recommended Citation: Katherine Franke, Symposium: The liberal, yet powerful, feminism of Ruth Bader Ginsburg, SCOTUSblog (Oct. 9, 2020, 2:00 PM), https://www.scotusblog.com/2020/10/symposium-the-liberal-yet-powerful-feminism-of-ruth-bader-ginsburg/