Updated: September 19, 2020 3:27:31 pm
Written by Linda Greenhouse
Ruth Bader Ginsburg, the second woman to serve on the Supreme Court and a pioneering advocate for women’s rights, who in her ninth decade became a much younger generation’s unlikely cultural icon, died Friday at her home in Washington. She was 87.
The cause was complications of metastatic pancreatic cancer, the Supreme Court said.
By the time two small tumors were found in one of her lungs in December 2018, during a follow-up scan for broken ribs suffered in a recent fall, Ginsburg had beaten colon cancer in 1999 and early-stage pancreatic cancer 10 years later. She received a coronary stent to clear a blocked artery in 2014.
Barely 5 feet tall and weighing 100 pounds, Ginsburg drew comments for years on her fragile appearance. But she was tough, working out regularly with a trainer, who published a book about his famous client’s challenging exercise regime.
As Ginsburg passed her 80th birthday and 20th anniversary on the Supreme Court bench during President Barack Obama’s second term, she shrugged off a chorus of calls for her to retire in order to give a Democratic president the chance to name her replacement. She planned to stay “as long as I can do the job full steam,” she would say, sometimes adding, “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
When Justice Sandra Day O’Connor retired in January 2006, Ginsburg was for a time the only woman on the Supreme Court — hardly a testament to the revolution in the legal status of women that she had helped bring about in her career as a litigator and strategist.
Her years as the solitary female justice were “the worst times,” she recalled in a 2014 interview. “The image to the public entering the courtroom was eight men, of a certain size, and then this little woman sitting to the side. That was not a good image for the public to see.” Eventually she was joined by two other women, both named by Obama: Sonia Sotomayor in 2009 and Elena Kagan in 2010.
After the 2010 retirement of Justice John Paul Stevens, whom Kagan succeeded, Ginsburg became the senior member and de facto leader of a four-justice liberal bloc, consisting of the three female justices and Justice Stephen Breyer. Unless they could attract a fifth vote, which Justice Anthony Kennedy provided on increasingly rare occasions before his retirement in 2018, the four were often in dissent on the ideologically polarized court.
Ginsburg’s pointed and powerful dissenting opinions, usually speaking for all four, attracted growing attention as the court turned further to the right. A law student, Shana Knizhnik, anointed her the Notorious R.B.G. — a play on the name of the Notorious B.I.G., a famous rapper who was Brooklyn-born, like the justice. Soon the name, and Ginsburg’s image — her expression serene yet severe, a frilly lace collar adorning her black judicial robe, her eyes framed by oversized glasses and a gold crown perched at a rakish angle on her head — became an internet sensation.
Young women had the image tattooed on their arms; daughters were dressed in R.B.G. costumes for Halloween. “You Can’t Spell Truth Without Ruth” appeared on bumper stickers and T-shirts. A biography, “Notorious RBG: The Life and Times of Ruth Bader Ginsburg,” by Irin Carmon and Knizhnik, reached the bestseller list the day after its publication in 2015, and the next year Simon & Schuster brought out a Ginsburg biography for children with the title “I Dissent.” A documentary film of her life was a surprise box office hit in the summer of 2018, and a Hollywood biopic centered on her first sex discrimination court case opened on Christmas Day that year.
The adulation accelerated after the election of Donald Trump, whom Ginsburg had had the indiscretion to call “a faker” in an interview during the 2016 presidential campaign. (She later said her comment had been “ill advised.”) Scholars of the culture searched for an explanation for the phenomenon. Dahlia Lithwick, writing in The Atlantic in early 2019, offered this observation: “Today, more than ever, women starved for models of female influence, authenticity, dignity, and voice hold up an octogenarian justice as the embodiment of hope for an empowered future.”
Her late-life rock stardom could not remotely have been predicted in June 1993, when President Bill Clinton nominated the soft-spoken, 60-year-old judge, who prized collegiality and whose friendship with conservative colleagues on the federal appeals court where she had served for 13 years left some feminist leaders fretting privately that the president was making a mistake. Clinton chose her to succeed Justice Byron White, an appointee of President John F. Kennedy, who was retiring after 31 years. Her Senate confirmation seven weeks later, by a vote of 96-3, ended a drought in Democratic appointments to the Supreme Court that extended back to President Lyndon B. Johnson’s nomination of Thurgood Marshall 26 years earlier.
There was something fitting about that sequence, because Ruth Ginsburg was occasionally described as the Thurgood Marshall of the women’s rights movement by those who remembered her days as a litigator and director of the Women’s Rights Project of the American Civil Liberties Union during the 1970s.
The analogy was based on her sense of strategy and careful selection of cases as she persuaded the all-male Supreme Court, one case at a time, to start recognizing the constitutional barrier against discrimination on the basis of sex. The young Thurgood Marshall had done much the same as the civil rights movement’s chief legal strategist in building the case against racial segregation.
Early Legal Landmarks
When Ruth Ginsburg arrived to take her junior justice’s seat at the far end of the Supreme Court’s bench on the first Monday of October 1993, the setting was familiar even if the view was different. She had previously stood on the other side of that bench, arguing cases that were to become legal landmarks. She presented six cases to the court from 1973 to 1978, winning five.
Her goal — to persuade the Supreme Court that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well — was a daunting one. The Supreme Court under Chief Justice Earl Warren, famous for its liberal rulings across a variety of constitutional fronts, had never recognized sex discrimination as a matter of constitutional concern. The Supreme Court under Chief Justice Warren Burger, who was appointed by President Richard Nixon in 1969, figured to be no more hospitable.
Ginsburg started from the premise that she needed to provide some basic education for an audience that was not so much hostile as uncomprehending. She took aim at laws that were ostensibly intended to protect women — laws based on stereotyped notions of male and female abilities and needs.
“The justices did not comprehend the differential treatment of men and women in jury selection and other legal contexts as in any sense burdensome to women,” she said in a 1988 speech. She added: “From a justice’s own situation in life and attendant perspective, his immediate reaction to a gender discrimination challenge would likely be: But I treat my wife and daughters so well, with such indulgence. To turn in a new direction, the court first had to gain an understanding that legislation apparently designed to benefit or protect women could have the opposite effect.”
So there was a successful challenge to an Idaho law that gave men preference over women to be chosen to administer estates, a practice the state had defended as being based on men’s greater familiarity with the world of business (Reed v. Reed, 1971). There was a case challenging a military regulation that denied husbands of women in the military some of the benefits to which wives of male soldiers were entitled, on the assumption that a man was not likely to be the dependent spouse (Frontiero v. Richardson, 1973).
Another case challenged a Social Security provision that assumed wives were secondary breadwinners whose incomes were unimportant to the family and therefore deprived widowers of survivor benefits (Weinberger v. Wiesenfeld, 1975). In that case, as in several others, the plaintiff was a man. Stephen Wiesenfeld’s wife, Paula, had died in childbirth, and he sought the benefits so he could stay home and raise their child, Jason. After the Supreme Court victory, Ginsburg stayed in touch with the father and child, and in 1998 she traveled to Florida to help officiate at Jason’s wedding. In 2014, in a ceremony at the Supreme Court 42 years after Paula Wiesenfeld’s death, Ginsburg presided over her one-time client’s second marriage.
In a 1976 case, Craig v. Boren, which Ginsburg worked on but did not personally argue, the Supreme Court for the first time formally adopted the rule that official distinctions based on sex were subject to “heightened scrutiny” from the courts. In that case, the court struck down an Oklahoma law that permitted girls to buy beer at age 18 but required boys to wait until they were 21.
The precise question the court addressed in Craig v. Boren may not have been profound, but the constitutional consequences of the answer certainly were. Although the court never adopted the rule of “strict scrutiny” that Ginsburg argued for in her early cases, instead reserving that most burdensome judicial test essentially for race discrimination, the initially reluctant justices had clearly embraced the conclusion that the 14th Amendment’s guarantee of equal protection included equality of the sexes.
It was a moment of personal triumph, therefore, when nearly 20 years after making her last argument before the Supreme Court, Ginsburg announced the court’s majority opinion in a 1996 discrimination case involving the Virginia Military Institute in Lexington. By a lopsided 7-1, the court had found that the all-male admissions policy of a state-supported military college was unconstitutional.
Virginia had argued that its “adversative” method of educating young men to be citizen-soldiers through a physically challenging curriculum was unsuited for young women. Under legal pressure, the state had set up an alternative military college for women — less rigorous and notably lacking the powerful alumni network that conferred substantial advantages on VMI graduates.
That was not good enough, Ginsburg wrote for the majority in United States v. Virginia. She explained that the state had failed to provide the “exceedingly persuasive justification” that the Constitution required for treating men and women differently. “Women seeking and fit for a VMI-quality education cannot be offered anything less under the state’s obligation to afford them genuinely equal protection,” she wrote, adding: “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.”
In this majority opinion, the most important of her tenure, Ginsburg took pains to make clear that the Constitution did not require ignoring all differences between the sexes. “Inherent differences between men and women, we have come to appreciate, remain cause for celebration,” she wrote, “but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” Any differential treatment, she emphasized, must not “create or perpetuate the legal, social, and economic inferiority of women.”
In August 2018, Ginsburg visited the Virginia Military Institute for the first time and addressed the corps of cadets, which included nearly 200 women among the student body of 1,700. She knew that her decision “would make VMI a better place,” she told cadets.
Ruth Bader’s father, Nathan Bader, immigrated to New York with his family when he was 13. Her mother, the former Celia Amster, was born four months after her family’s own arrival. Ruth, who was named Joan Ruth at birth and whose childhood nickname was Kiki, was born on March 15, 1933. She grew up in Brooklyn’s Flatbush neighborhood essentially as an only child; an older sister died of meningitis at the age of 6 when Ruth was 14 months old. The family owned small retail stores, including a fur store and a hat shop. Money was never plentiful.
Celia Bader was an intellectually ambitious woman who graduated from high school at 15 but had not been able to go to college; her family sent her to work in Manhattan’s garment district so her brother could attend Cornell University. She had high ambitions for her daughter but did not live to see them fulfilled. She was found to have cervical cancer when Ruth was a freshman at James Madison High School, and she died at the age of 47 in 1950, on the day before her daughter’s high school graduation. After the graduation ceremony that Ruth was unable to attend, her teachers brought her many medals and awards to the house.
On June 14, 1993, when Ginsburg stood with Clinton in the Rose Garden for the announcement of her Supreme Court nomination, she brought tears to the president’s eyes with a tribute to her mother. “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons,” she said.
Ruth Bader attended Cornell on a scholarship. During her freshman year, she met a sophomore, Martin Ginsburg. For the 17-year-old Ruth, the attraction was immediate. “He was the only boy I ever met who cared that I had a brain,” she said frequently in later years. By her junior year, they were engaged, and they married after her graduation in 1954.
Theirs was a lifelong romantic and intellectual partnership. In outward respects, they were opposites. While she was reserved, choosing her words carefully, with long pauses between sentences that left some conversation partners unnerved, he was an ebullient raconteur, quick with a joke of which he himself was often the butt. The depth of their bond, and their mutual commitment to treating their family and careers as a shared enterprise, were nonetheless apparent to all who knew them as a couple.
Martin Ginsburg, a highly successful tax lawyer, would become his wife’s biggest booster, happily giving up his lucrative New York law practice to move with her to Washington in 1980, when President Jimmy Carter named her to the U.S. Court of Appeals for the District of Columbia Circuit. Thirteen years later, he lobbied vigorously behind the scenes for her appointment to the Supreme Court.
Settling in Washington, Martin Ginsburg taught tax law at Georgetown University’s law school. He occupied a chair that a longtime client, Ross Perot, had endowed for him in gratitude for years of tax advice that had saved the Texas entrepreneur untold millions of dollars. He was also a gourmet cook who did the family’s cooking and, later, baked delicacies for his wife to share with colleagues at the court. (Ruth Ginsburg was, by her own description, a terrible cook whose children forbade her from entering the kitchen.) The Ginsburgs lived in a duplex apartment at the Watergate, next to the Kennedy Center for the Performing Arts, where they frequently attended the opera and ballet.
Their 56-year marriage ended with his death from cancer in 2010 at the age of 78. In his final days, he left a note, handwritten on a yellow pad, for his wife to find by his bedside.
“My dearest Ruth,” it began. “You are the only person I have loved in my life, setting aside, a bit, parents and kids and their kids, and I have admired and loved you almost since the day we first met at Cornell.” He added: “What a treat it has been to watch you progress to the very top of the legal world!!”
Their two children, Jane, a professor of intellectual property law at Columbia Law School, and James, a producer of classical music recordings in Chicago, survive, along with four grandchildren.
Following their marriage, the couple settled in Lawton, Oklahoma, where Martin Ginsburg, having served in the ROTC during college, was due to spend two years as an Army officer at nearby Fort Sill. Ruth Ginsburg applied for a government job at the local Social Security office. She was offered a position as a claims examiner at the Civil Service rank of GS-5, but when she informed the personnel office that she was pregnant — with Jane, her first child — the offer was withdrawn. A pregnant woman couldn’t travel for the necessary training, she was told. She accepted a clerk-typist job at the lowly rank of GS-2.
As one of her biographers, Jane Sherron De Hart, wrote in “Ruth Bader Ginsburg: A Life” (2018), the young wife, soon-to-be mother, and future feminist icon “rationalized the incident as ‘just the way things are.’” It would be years before Ruth Ginsburg made it her life’s work to challenge the web of assumptions and the assignment of roles that limited women’s opportunities.
Early in their marriage, with both enrolled at Harvard Law School (Martin Ginsburg had completed his first year before entering the Army), the couple faced a daunting crisis. During his third year of law school, Martin Ginsburg was diagnosed with an aggressive testicular cancer, which was treated with radiation. The prognosis was poor, and he was rarely able to attend class. Other students took notes for him, and Ruth Ginsburg, while attending class herself and caring for their young daughter, typed up the notes and helped him study. He recovered and graduated on time.
Harvard Law School was a challenge for women even in the best of times. There were no women on the faculty. During Ruth Ginsburg’s first year, the dean, Erwin Griswold, invited the nine women in the class to dinner and interrogated each one, asking why she felt entitled to be in the class, taking the place of a man. Ruth stammered her answer: that because her husband was going to be a lawyer, she wanted to be able to understand his work.
When her husband received a job offer in New York, Ruth Ginsburg asked Harvard officials if she could spend her final year at Columbia and still receive a Harvard degree. The request was denied, so she transferred and received a Columbia degree, tying for first place in the class. In 1972, she became the first woman to receive tenure on the Columbia law faculty.
The Swedish Influence
After her graduation from Columbia, Ruth Ginsburg received no job offers from New York law firms. She spent two years clerking for a federal district judge, Edmund L. Palmieri, who agreed to hire her only after one of her mentors, Professor Gerald Gunther, threatened never to send the judge another law clerk if he did not.
After the clerkship, Ruth Ginsburg returned to Columbia to work on a comparative law project on civil procedure. The project required her to learn Swedish and to spend time in Sweden. The experience proved formative. Feminism was flourishing in Sweden, and there was nothing unusual about women combining work and family obligations. Childcare was readily available. An article by the editor of a feminist magazine caught Ruth Ginsburg’s attention. “We ought to stop harping on the concept of women’s two roles,” the editor, Eva Moberg, wrote. “Both men and women have one principal role, that of being people.”
Between 1963 and 1970, Ruth Ginsburg produced a treatise on Swedish civil law, which remains a leading work in the field, along with a dozen other articles and books. But more than this impressive academic output, the most important product of her Swedish interval may have been the effect on the young lawyer of directly observing a different way to organize society.
After more prestigious law schools, including Columbia and New York University, would not hire her, she took a job teaching at Rutgers Law School, where she was the second woman on the faculty. In fact, fewer than two dozen women were teaching at all American law schools combined. Her second child, James, nine years younger than his sister, was born during this period.
In addition to teaching, she began volunteering to handle discrimination cases for the New Jersey affiliate of the American Civil Liberties Union, which brought her such cases as complaints by public-school teachers who had lost their jobs when they became pregnant. A childhood friend from summer camp, Melvin Wulf, who had become national legal director for the ACLU, heard about her work and brought more cases her way. Among them was the Idaho case on estate administrators that eventually became her first Supreme Court victory, Reed v. Reed. The 88-page brief she filed in that case, an inventory of all the ways in which law served to reinforce society’s oppression of women, became famous in legal history as the “grandmother brief,” on which feminist lawyers drew for many years.
In 1972, the ACLU created a Women’s Rights Project and hired Ruth Ginsburg as its first director. At the same time, she left Rutgers and began teaching at Columbia. It was under the ACLU project’s auspices that she carried out her Supreme Court litigation strategy to persuade the justices that official discrimination on the basis of sex was a harm of constitutional dimension.
The implications of this strategy were not immediately apparent, even to those who watched closely as it unfolded. Clearly, Ruth Ginsburg was doing something different in selecting cases in which the victims of disparate government treatment were men. On one level, it was obvious that she was trying to feed the justices a diet of cases they could easily digest: Why should men be treated less generously than women simply because they were men? What the government owed to one sex, it owed to the other, full stop.
But for Ruth Ginsburg, something deeper and more radical was at stake. Her project was to free both sexes, men as well as women, from the roles that society had assigned them and to harness the Constitution to break down the structures by which the state maintained and enforced those separate spheres. That was why a widowed father seeking social welfare to enable him to be his baby’s caregiver was the perfect plaintiff: not only because his claim to the benefits that would go automatically to a widow might strike sympathetic justices as reasonable, but because his very goal could open the court’s eyes to the fact that childcare was not a sex-determined role to be performed only by women.
‘A Force for Consensus-Building’
Many who had followed Ginsburg’s litigating career expressed surprise as she began compiling a moderate rather than liberal voting record on the U.S. Court of Appeals for the District of Columbia Circuit, which she joined in 1980. She sometimes appeared more comfortable with the court’s conservative members, who included such judges as Antonin Scalia and Robert H. Bork, than with liberal colleagues including Judge Patricia M. Wald, another appointee of President Carter’s who was the first woman to serve on that important court.
In fact, Ginsburg’s anomalous role as what might be called a judicial-restraint liberal sprang from deep convictions that in a healthy democracy, the judicial branch should work in partnership with the other branches, rather than seek to impose a last word that left no room for further discussion.
This was the basis for her criticism of Roe v. Wade, the Supreme Court’s 1973 decision establishing a constitutional right to abortion. In a speech at New York University Law School in 1993, several months before her nomination to the Supreme Court, she criticized the ruling as having “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”
While leaving no doubt about her own support for abortion rights, she said the court would have done better to issue a narrow rather than sweeping ruling, one that left states with some ability to regulate abortions without prohibiting them. “The framers of the Constitution allowed to rest in the court’s hands large authority to rule on the Constitution’s meaning,” but “armed the court with no swords to carry out its pronouncements,” she said, adding that the court had to be wary of “taking giant strides and thereby risking a backlash too forceful to contain.”
In contrast to Ginsburg’s underlying assumption, there was in fact ample evidence that what had once appeared a steady legislative march toward revision or repeal of the old criminal abortion laws had stalled by 1973 in the face of powerful lobbying by the Roman Catholic Church. And there was also evidence that the backlash against the decision was not a spontaneous response — in fact, polling in the decision’s immediate aftermath demonstrated widespread and growing public approval — but rather was elicited by Republican strategists hunting for Catholic voters, who had traditionally been Democrats. In later years, Ginsburg acknowledged questions about the historical accuracy of her narrative, but she maintained her criticism of the decision.
The New York University speech alarmed the leaders of some women’s groups and abortion rights organizations, some of whom lobbied quietly against her when White announced in March 1993 that he would soon be leaving the court. Clinton, making his first nomination to the court, conducted an almost painfully public search among judges and political figures, with contenders including Mario Cuomo, then governor of New York, who turned him down, and Bruce Babbitt, the incumbent secretary of the interior.
As the search wound down, it appeared the president had chosen Stephen G. Breyer, chief judge of the 1st U.S. Circuit Court of Appeals in Boston, who had come to Washington at the president’s invitation for an interview. Breyer was in pain from broken ribs suffered in a recent bicycle accident, and the interview did not go well. Martin Ginsburg, meanwhile, had been urging New York’s senior senator, Daniel Patrick Moynihan, to press his wife’s case with the president. Clinton was at first reluctant; “The women are against her,” he grumbled to Moynihan. But after a 90-minute private meeting with Ruth Ginsburg on Sunday, June 13, the president made up his mind. He called her at 11:33 that night to tell her that she was his choice.
“I believe that in the years ahead she will be able to be a force for consensus-building on the Supreme Court, just as she has been on the Court of Appeals,” Clinton said at the announcement ceremony the next day. The appointment proved highly popular with the public, and she was confirmed on Aug. 3, 1993, over the dissenting votes of three of the Senate’s most conservative Republicans: Jesse Helms of North Carolina, Don Nickles of Oklahoma and Robert C. Smith of New Hampshire.
Addressing the Senate Judiciary Committee, Ginsburg said her approach to judging was “neither ‘liberal’ nor ‘conservative.’” She did, however, make clear that her support for the right to abortion, despite her criticism of Roe v. Wade, was unequivocal. In answer to a question from Sen. Hank Brown, R-Colo., she said: “This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
Fourteen years later, on a Supreme Court that had turned notably more conservative with the departures of Marshall and O’Connor and their replacement by Justices Clarence Thomas and Samuel A. Alito Jr., Ginsburg expressed herself on the subject of abortion in one of her most stinging and widely noticed dissenting opinions.
In Gonzales v. Carhart, the court by a 5-4 vote upheld a federal law criminalizing a particular procedure that doctors used infrequently to terminate pregnancies during the second trimester. In his majority opinion, Kennedy said the law was justified in part to protect women from the regret they might feel after undergoing the procedure. That rationale, Ginsburg objected in dissent, relied on “an anti-abortion shibboleth” — the notion that women regret their abortions — for which the court “concededly has no reliable evidence.” The majority’s “way of thinking,” she wrote, “reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”
It was during that 2006-2007 Supreme Court term that Ginsburg’s powerful dissenting voice emerged. Another decision that term provoked another strong dissent. The court voted 5-4 in the case of Ledbetter v. Goodyear Tire and Rubber Co. to reject a woman’s pay discrimination claim on the grounds that the woman, Lilly Ledbetter, had not filed her complaint within the statutory 180-day deadline. Alito’s majority opinion held that the 180-day clock had started running with Ledbetter’s first paycheck reflecting the management’s decision to pay her less than it paid the men doing the same job.
Ginsburg objected that, properly interpreted, the 180-period began only when an employee actually learned about the discrimination. Congress should make this clear, she wrote, declaring: “The ball is in Congress’s court.” The impact of her unusually direct call to Congress was magnified because she took the unusual step of announcing her dissent from the bench. What might have been seen as a technical dispute over a statute of limitations became a very public call to arms.
It worked. Congress voted to overturn what Ginsburg called the court’s “parsimonious reading” of Title VII of the Civil Rights Act of 1964. On Jan. 29, 2009, the Lilly Ledbetter Fair Pay Act was the first bill that Obama signed into law. “Justice Ginsburg was courting the people,” Professor Lani Guinier of Harvard Law School wrote in a 2013 essay. Guinier called the oral dissent “a democratizing form of judicial speech” that “could be easily understood by those outside the courtroom.”
Donning the ‘Dissenting Collar’
Ginsburg took care with her opinions, those for the majority as well as those in dissent. Her opinions were tightly composed, with straightforward declarative sentences and a minimum of jargon. She sometimes said she was inspired to pay attention to writing by studying literature under Vladimir Nabokov at Cornell.
Still, it was her dissents, particularly those she announced from the bench, that received the most attention. Playing along with her crowd, she took to switching the decorative collars she wore with her judicial robe on days when she would be announcing a dissent. She even wore her “dissenting collar,” which one observer described as “resembling a piece of medieval armor,” the day after Trump’s election.
One of her best-known dissents came in 2013 in Shelby County v. Holder, in which the 5-4 majority eviscerated the Voting Rights Act of 1965 by invalidating the provision that required southern jurisdictions, along with some others, to receive federal permission — “preclearance” — before making a change in voting procedures.
“What has become of the court’s usual restraint?” Ginsburg demanded in an ironic reference to conservative calls for “judicial restraint.” And she ended her announcement with these words: “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”
Among Ginsburg’s roughly 200 majority opinions — seven or eight per term — one of her favorites came in a relatively obscure decision in 1996 called M.L.B. v. S.L.J. The question was whether a parent whose parental rights had been terminated by a court decree had a right to appeal even if unable to pay the cost of having the official court record prepared. The Supreme Court of Mississippi had ruled that the state had no obligation to pay for the required record, without which the appeal could not proceed.
Constitutional doctrine offered no clear path to ruling for the mother, M.L.B. With few exceptions, most notably the right to a lawyer for an indigent criminal defendant, the Constitution does not grant affirmative rights, and Supreme Court precedent rejects the notion that poverty is a condition deserving of special judicial consideration as a matter of equal protection. So Ginsburg anchored her 6-3 decision in a separate line of cases in which the court had treated protection for family relationships as fundamental.
“The state may not bolt the door to equal justice” when it came to parental rights, she wrote in an opinion that delicately threaded the needle between unfavorable Supreme Court precedents and those from which favorable legal authority could be extrapolated. “In this context,” Professor Martha Minow, a dean of Harvard Law School, wrote in an admiring essay on the opinion, “Justice Ginsburg’s opinion for the court in M.L.B. v. S.L.J. is truly extraordinary.”
No Fear on the Bench
Asked often to explain the success of her 1970s litigation campaign, Ginsburg usually offered some version of having been in the right place with the right arguments at the right time.
“How fortunate I was to be alive and a lawyer,” she wrote in the preface to “My Own Words,” a compilation of her writing published in 2016, “when, for the first time in U.S. history, it became possible to urge, successfully, before legislatures and courts, the equal-citizenship stature of women and men as a fundamental constitutional principle.”
Although on the bench she was an active and persistent questioner, in social settings she tended to say little. She often let her more outgoing and jovial husband speak for her, and she struck those who did not know her well as shy and even withdrawn — although in talking about her great love, opera, she could become almost lyrical. Still, there was so little wasted motion that it was nearly impossible to imagine her as the high school cheerleader and twirler she had once been.
It was not so much that there were two sides to her personality, as it might have appeared, as that her innate shyness simply disappeared when she had a job to do. She once recalled that before her first Supreme Court argument, she was so nervous that she did not eat lunch “for fear I might throw up.”
But about two minutes into the argument, “the fear dissolved,” she said. She realized that she had a “captive audience” of the most powerful judges in America, and “I felt a surge of power that carried me through.”
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