Ginsburg, Ruth Bader
Significance: As the second female appointee to the Supreme Court, Ginsburg acquired the reputation of being a moderately liberal justice and continued to pursue her earlier commitment to use law to combat gender discrimination.
The daughter of Russian Jewish immigrants, Ruth Bader Ginsburg completed her undergraduate studies at Cornell University in 1954 and received her law degree from Columbia University in 1959. Although she tied for first place in her class and served on her school's law review staff, she was unable to obtain employment in a major law firm after she graduated. Her experiences with gender discrimination early in her career were similar to those of Justice Sandra Day O’Connor, the first woman to be appointed to the Supreme Court. Recognizing the barriers that lay between her and the private practice of law, Ginsburg sought and obtained a clerkship with a federal district judge, Edmund Palmieri. She then joined the law faculties at Rutgers University and Columbia University. Ginsburg's commitment to eradicating gender discrimination became evident while she was teaching at Columbia University. As a faculty member, she headed the Women's Rights Project for the American Civil Liberties Union, and she also coauthored a pioneering book, Text, Cases, and Materials on Sex-Based Discrimination (1974). As a legal pioneer in the area of gender discrimination, Ginsburg helped put the issue on the legal agenda. Between 1971 and 1976, she argued six gender discrimination cases before the Supreme Court, winning five of them. One of her victories was Frontiero v. Richardson (1973), in which the Court overturned a federal law that automatically awarded supplementary benefits to married men but not to married women in the military. The justices declined by only one vote to classify gender the as a suspect classification, which would have meant the application of strict scrutiny in cases involving gender discrimination. President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia in 1980. Serving on the court with Antonin Scalia and Clarence Thomas, both of whom would precede her to the Supreme Court, Ginsburg became known for her scholarly and balanced opinions and her ability to get along with both the liberal and conservative wings of the Court. She advocated gradual change when adjudicating either constitutional law or the common law, observing that “doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.”
Appointment to the Supreme Court
The moderate political ideology that Ginsburg demonstrated as a circuit court judge matched that of President Bill Clinton, who nominated her to the Supreme Court in 1993. She received the highest recommendation of the American Bar Association. With Democrats having a majority in the Senate, her confirmation hearings lasted only four days, with only one hostile witness allowed to testify. Committee chairman Joe Biden advised her not to answer any questions that she did not feel comfortable answering. She was then confirmed by a Senate vote of ninety-six to three on August 3, 1993, and became the Court's second female justice. Unlike many newcomers who apparently suffer from freshman anxiety, Ginsburg seemed comfortable on the Court from the beginning. She quickly acquired the reputation of being an energetic and enthusiastic questioner during oral arguments. Some Court observers labeled her as “aggressive” in this role because of her apparent willingness to interrupt her more senior colleagues in their questioning efforts. Nevertheless known for her politeness, she has never made sarcastic comments or strong attacks on the legal reasoning of others. In her opinions, she has given meticulous attention to details. Her major concern has always been the practical application of the law, giving minimal interest to the historical background of issues. She was soon regarded as the Court's expert on civil procedure, a subject that she had taught for many years.
Jurisprudence and Decisions
Ginsburg had long been a strong advocate of the right of women to terminate unwanted pregnancies, although she argued that the Court should have grounded the right in the equal protection principle rather than in the concept of personal liberty. Informed observers were not surprised when she joined the Court's majority in Stenberg v. Carhart (2000), striking down Nebraska's restrictive law on partial-birth abortions. She also could be counted on to support other claims of privacy and liberty interests, such as Lawrence v. Texas (2003), which ruled that states could not outlaw homosexual practices between consenting adults. The area of sex discrimination is the only area in which Ginsburg has been a zealous crusader. One of her most controversial opinions was the majority opinion in United States v. Virginia (1996), in which the Court declared unconstitutional the male-only admission policy at the publicly supported Virginia Military Institute. When examining claims of sex discrimination by government, she wrote that the court would henceforth apply a standard of heightened “skeptical scrutiny,” requiring government to demonstrate an “exceedingly persuasive justification” in order to maintain sex-based distinctions. She has firmly rejected rationales based on presumptions of “inherent” sex differences or stereotypes of what was appropriate for “most women.” Ginsburg has not been sympathetic toward claims of “reverse discrimination” when reviewing affirmative action programs designed to enhance the opportunities of minorities or women. When considering the constitutionality of such programs, she has advocated the standard of minimal scrutiny. Thus, she dissented in Adarand Constructors v Peña (1995), when a 5-4 majority applied the strict scrutiny standard to racial preferences in federal programs. Likewise, in the cases of Grutter v. Bollinger and Gratz v. Bollinger (2003), Ginsburg endorsed race-based preferences, whether based on individualized assessment or not, based on the goal of diversity. Drawing a sharp distinction between classifications that were aimed at “exclusions” and those aimed at “inclusion,” she quoted a United Nations document approving race-based measures designed to accelerate de facto equality for categories of people. This practice of looking to international law and foreign courts as a source of guidance became a matter of some controversy after the Court's decision in Roper v. Simmons (2005), in which a 5-4 majority held that the execution of minors was unconstitutional. The opinion for the Court, which Ginsburg joined, took into account current international law on the issue. Justice Antonin Scalia disagreed, expressing opposition to giving “like-minded foreigners” a role in interpreting the U.S. Constitution. Likewise, the House of Representatives passed a resolution declaring that foreign laws and pronouncements should never be used as a source for understanding the U.S. Constitution. Ginsburg expressed her disagreement with the resolution in a speech before the American Society of International Law. Acknowledging that foreign sources were not authoritative for the Court's decisions, she argued that Americans should be willing to learn from the experiences and “good thinking” of foreigners. Many commentators have viewed Ginsburg as an advocate of judicial restraint, and it is true that she has frequently declared that legislative acts should be respected whenever possible. When discussing the abortion issue, she even wrote that it would have been preferable if the right to abortion had been gradually accomplished through legislation, even though the process would have taken many years. When she dissented in the controversial case of Bush v. Gore (2000), which stropped the recount of presidential ballots in Florida, she blasted the majority for not following the precedent of allowing a state court to interpret the state's laws. Her praise for judicial restraint, however, did not prevent her from voting to strike down some laws in which the question of constitutionality was ambiguous. In Zelman v. Simmons-Harris (2002), for example, she joined the minority that opposed the use of tax-supported vouchers in parochial schools, even though the program involved no coercion and only indirectly helped religious institutions.
- Bayer, Linda N. Ruth Bader Ginsburg. Philadelphia: Chelsea House Publishers, 2000.
- Cooper, Phillip J. Battles on the Bench: Conflicts Inside the Supreme Court. University Press of Kansas, 1995.
- Frederick, David C. Supreme Court and Appellate Advocacy. Foreword by Ruth Bader Ginsburg. St. Paul, Minn.: West Group, 2003.
- Ginsburg, Ruth Bader. “Remarks for the American Law Institute Annual Dinner.” St. Louis University Law Journal 38 (Summer, 1994): 884.
- Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.
- Smith, Christopher E., Joyce Ann Baugh, Thomas R. Hensley, and Scott Patrick Johnson. “The First-Term Performance of Justice Ruth Bader Ginsburg.” Judicature 78 (1994): 74-80.
- Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005
- Yarbrough, Tinsley. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.