Justice Ruth Bader Ginsburg (1933-2020): in memoriam

Ruth Bader Ginsburg, American Supreme Court Justice extraordinaire, and only the second woman to sit on the court, died on Erev Rosh Hashanah.

She was 87, a first-generation American Jew from an Orthodox home, who rebelled against religious sexism, but had a mezuzah nailed to the doorpost of her Supreme Court office, and the word ‘tzedek’ (justice) woven into her collar. Her determined feminism, intellect, courage and tactical skills shaped her career and her legal judgments and transformed the lives of millions.

Her liberalism emerged in one of the few statements she ever made relating to Israel/Palestine, when she donated part of a Swedish human rights prize to the Jewish/Palestinian Hand-in-Hand schools, explaining: ‘From the earliest grades, the children… learn the shared values of Jews, Muslims and Christians, among them helping others, welcoming guests, opposing oppression and caring for the earth.’

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Ruth Bader Ginsburg: Photo: Wikipedia

We repost two appreciations below: from the American Civil Liberties Union stressing her human-rights contribution; and Jane Eisner in the Forward, stressing her role as an ideal representative of American Jewish liberalism.

Ruth Bader Ginsburg via the Amos Trust

In Memory of Justice Ruth Bader Ginsburg (1933-2020)

Anthony D. Romero , ACLU Executive Director, American Civil Liberties Union, 19th September 2020

Ruth Bader Ginsburg, the Supreme Court justice who first rose to national prominence as an ACLU lawyer fighting for equal rights for women, has died at 87 years old.

She began Harvard Law School as a young mother and one of only nine women in her class, and became the architect of a legal strategy to eradicate gender discrimination in the United States. She modeled her approach after that of Thurgood Marshall on race discrimination, planning for a series of cases at the Supreme Court, each precedent paving the way for the next that would further expand rights and protections. In 1993, she joined the court as an associate justice, and over the decades became a cultural icon beloved for her vision and passion in defending the rights of women.

Ginsburg was born in Brooklyn in 1933 to Jewish parents with roots in Eastern Europe. Her mother Celia, who died shortly before Ginsburg graduated from high school, instilled in her a sense of independence and a love of learning. She went on to Cornell University, where at 17, she met her future husband, Martin Ginsburg. They married after graduation, and soon had a daughter, Jane.

Ginsburg attended Harvard Law School, where women were barred from living in the dorms and from using certain campus facilities. When the dean hosted a dinner for the first-year women, Ginsburg recalled, “He asked each of us to stand up and tell him what we were doing taking a seat that could be occupied by a man.”

Discrimination dogged her early career. After transferring to Columbia Law School, she graduated first in her class, but she had trouble getting a job. She later accepted a position teaching civil procedure at Rutgers Law School, where her employers informed her that she would be paid less than her male colleagues because she had a husband who earned a good income. She and other female professors filed a federal class-action discrimination case against the university, and won. For fear of demotion, she hid her pregnancy with her son, James, until after her contract renewal. Simply living her personal and professional life at a time of openly discriminatory policies for women had positioned her to fight.

In the late 1960s, Ginsburg began volunteering for the ACLU, and soon wrote a brief in the case Reed v. Reed. Sally Reed had separated from her husband, and when their son died, both parents sought to be appointed the executor of his estate. Idaho law automatically appointed the father because he was a man. Ginsburg named as co-authors on the brief two women lawyers whose ideas had helped build her arguments: Dorothy Kenyon, an early advocate for women’s rights, and Pauli Murray, a brilliant African American activist who had pioneered the argument for applying the 14th Amendment to women’s rights. In 1971, the Supreme Court ruled for Sally Reed, the first time it would strike down a law for treating men and women differently. The court ruled that giving a mandatory preference to one sex is “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” In an ACLU memo, Ginsburg called the victory “a small, guarded step.”

In 1972, Ginsburg joined the ACLU as the founding director of the new Women’s Rights Project. That same year, she also accepted a job as the first female tenured law professor at Columbia.

In the early ‘70s, gender discrimination affected most aspects of life. The Women’s Rights Project tallied hundreds of federal laws that discriminated on the basis of sex — in education, employment, reproductive rights mortgages, credit cards, loans, house rentals, prison, and the military. Most legal scholars believed the law should treat women differently, to protect them. For instance, some laws prevented female employees from lifting more than 15 pounds, or working at night. Some lawyers were beginning to take on cases of sex discrimination, often to help a specific woman, not necessarily with a view toward changing the law on gender equality. Ginsburg wanted to do just that.

In 1973, Ginsburg took on another Supreme Court case. Sharron Frontiero was an Air Force officer whose husband, Joseph, had been denied the housing and medical benefits that female spouses of male Air Force officers received automatically.

In writing both muscular and spare, Ginsburg expanded the scope of her brief to encompass the history of women’s subjugation, with references to Alexis de Tocqueville and Alfred Lord Tennyson, and pared down the language to a precise and devastating argument. “That’s when it dawned on me how brilliant she is,” said Brenda Feigen, then co-directing the Women’s Rights Project with Ginsburg. “She was at her most creative and profound,” she said. “She told the story of sex discrimination — how it had been and how it had to end.”

It was in Frontiero that Ginsburg gave her first oral argument before the Supreme Court. “I knew that I was speaking to men who didn’t think there was any such thing as gender-based discrimination and my job was to tell them it really exists,” she has said. To make the point to the nine men who were sitting on the bench, she quoted the nineteenth-century women’s-rights advocate Sarah Grimkè: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” She apparently succeeded. Feigen, who was by Ginsburg’s side in the court, recalled, “There was not a single question from any of the justices. They must have been transfixed.”

Ginsburg’s team won the case. Yet they did not convince a majority of the justices that sex discrimination should be treated exactly like racial discrimination. “My expectation, to be candid, was that I would repeat that kind of argument, maybe half a dozen times. I didn’t expect it to happen in one fell swoop,” Ginsburg later said.

While at the ACLU, Ginsburg played a role in 34 Supreme Court cases, and won five of the six cases she argued before the court — Frontiero, Weinberger v. Wiesenfeld, Califano v. Goldfarb, Duren v. Missouri, and Edwards v. Healy. Many of her cases involved sex discrimination against men, which she felt might rouse more sympathy among the male justices, and show that discrimination hurts everyone.

Ginsburg sometimes said that one of her favorite cases involved a man whose wife died in childbirth, leaving him alone to care for their newborn son. Stephen Wiesenfeld’s wife had been the primary breadwinner, and upon her death, he went to the local Social Security office to inquire about survivors’ benefits for a parent and learned that he didn’t qualify because he was a man. Ginsburg convinced the Supreme Court that the section of the Social Security Act that denied fathers benefits because of their sex was unconstitutional. She won a unanimous decision.
 
“Ruth was careful to build brick upon brick,” said Aryeh Neier, then executive director of the ACLU. “She wanted to create a stable structure. She wasn’t interested in reaching for the roof right away. In my tenure at the ACLU, this was the most clearly planned litigation strategy.”

Ginsburg’s legacy would be felt at the ACLU long after her departure in 1980 to become a judge on the U.S. Court of Appeals.

President Clinton nominated Ginsburg to the Supreme Court in 1993. She was introduced at her confirmation hearing by Eleanor Holmes Norton, Delegate to the U.S. House of Representatives from Washington D.C., who had served as the assistant legal director at the ACLU. “When Ruth Ginsburg founded the ACLU Women’s Rights Project, today’s axiom that the 14th Amendment applies to women was not axiomatic at all,” she said. “Judge Ginsburg has spent her life making things how they ought to be. Using her gifted mind, honed by indefatigably hard work, she has used the law, always carefully, always defensibly, for all of those left at the margins, for want of a lawyer or a judge with the brilliance and commitment to pull them mainstream. As a lawyer, she was an activist intellectual who brought grace to both roles.”

The last to testify at her confirmation hearing was Stephen Wiesenfeld, the widower for whom Ginsburg won Social Security benefits some 20 years earlier when she was at the ACLU. He described his experience of being a newly-widowed father struggling to raise his son without his wife’s Social Security benefits and how Ginsburg “saw immediately the gains, the consequences, and the long range effects and the logistics of revising this inequity in the Social Security system.”

Sen. Joe Biden, then the Chairman of the U.S Senate Committee on the Judiciary, thanked Wiesenfeld for his testimony and added, “I shared a similar fate that you did in 1972 and raised two children with a professional wife who had passed away, and it is amazing how much has changed.”

Ginsburg was confirmed to the court in a vote of 96 to 3.

On the court, Ginsburg continued her efforts to push for full gender equality under the 14th Amendment. In 1996, she wrote the decision in United States v. Virginia, which struck down the male-only admission policy at the Virginia Military Institute and established a new standard of review for sex discrimination cases.

Over time, as the court became more conservative, Ginsburg also became more pointed in her dissents.

In 2006, the court ruled against Lilly Ledbetter, who had been paid less than male colleagues in comparable jobs at the Goodyear Tire & Rubber Company. In a rare move, Ginsburg, then the sole woman justice on the court, read her blistering dissent aloud from the bench. “The court does not comprehend…the insidious way that women can be victims to discrimination,” she accused. “The ball is in Congress’ court.” A few years later, President Obama signed the Lilly Ledbetter Fair Pay Act into law.

Then in 2013, the court gutted the Voting Rights Act of 1965. “Race-based voting discrimination still exists,” she rebuked her colleagues, again reading her dissent. Dismantling the act, she said later, was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

In a country hungry for integrity and for leadership fighting the erosion of civil rights, a new generation of young women branded Ginsburg “The Notorious RBG” on social media, and showed their esteem for her in unexpected ways. Children dressed up as Ginsburg for Halloween, her face appeared on tattoos, pillows, and shower curtains, and her story was told in a documentary and a feature film, multiple biographies, and several children’s books.

 


Ruth Bader Ginsburg ‘represented an ideal of American Jewish liberalism’

We were in the kitchen, cleaning up after our small, simple Rosh Hashanah dinner, just the immediate family, stripped down to the fundamentals: honey, challah, wine, chicken, joy in being together. I did not look at my phone all evening.

Then a daughter walked in. RBG had died.

And the tears flowed.

I was privileged to have interviewed Justice Ruth Bader Ginsburg on a synagogue stage in February 2018 in Washington, D.C., before thousands of people, an experience that instantly soared to the top echelon of my professional life. I read countless books and articles to prepare, watched documentaries and videos, poured through transcripts and legal opinions. I wanted to really know this woman, who had, in the years since her beloved husband’s death, allowed herself to become a feminist icon and a well-exposed cultural celebrity.

But that’s not what I was after, not what I wanted to reveal and present. I was Editor-in-Chief of The Forward, and interviewing her at a synagogue: I was interested most of all of in who she was as a Jew.

In the wake of her tragic death — and yes, though hardly unexpected, in this ugly, divisive moment it is a civic tragedy — many will catalogue Ginsburg’s extraordinary legal accomplishments and political significance. What I want to acknowledge is her important place in American Jewish history.

Ginsburg represented the apogee of Jewish achievement in this fraught land. As unique as she was, she also was an archetype, the epitome of what America had to offer a wandering, battered people. Born in 1933, as fascism began its brutal march across Europe and as the Depression still blanketed the world economy, Ginsburg also faced adversity at home. Her only sister died when she was very young. Her mother died just as she was set to graduate from high school.

Women with brains and drive were excluded from power, legally considered second-class citizens, rarely allowed to even glimpse their own potential.

But she would have none of it. Quietly but firmly, she pushed back against barriers by working harder than anyone else, supported by an amazing husband, and fortunate to come of age when being Jewish was no longer the hindrance it had been only a short time before.

The virulent antisemitism that had plagued the United States in the immediate postwar years gradually gave way in the 1950s, as advocates used the law to break down discrimination against Jews in housing, education and employment. Ginsburg worked the same levers, doggedly seeking to turn over the laws that discriminated on the basis of sex.

She was not a revolutionary. She worked within the system to change the system, to make it more fair and just, to extend protections to those who needed government the most.

This was the quintessential Jewish aspect of her character. Yes, she was raised a Jew, married a Jew, belonged to a synagogue, supported Jewish causes, here and in Israel. But more than that, Ginsburg epitomized the liberal intellectual ideal that has come to characterize so many modern American Jews — grounded in the belief that American institutions will bend toward justice if presented with unassailable rational arguments, and that they can best be led in that direction from within.

Only because the Supreme Court lurched in recent years to a hardline, unforgiving brand of conservatism did Ginsburg seem like a flaming liberal. It’s easy to forget now that her appointment was initially a disappointment to many feminists, who worried about her dogged, incremental approach to the law in its social context.

But that approach is what enabled her to reach the pinnacle, and it’s what has stood as a beacon to generations of American Jews who wanted to believe that their lot, and the lot of their less fortunate neighbors, could be improved by deliberate, moral persuasion.

That era might now be over. It seems fitting that she died as Rosh Hashanah came in and a year of pain and sickness and utter despair was closing. Already, the battle lines are forming over the chair that she has left empty — a chair that dwarfed her diminutive frame but could never contain her enormous mind and heart.

She’s left us no choice but to carry on her legacy, but the challenge is enormous. Ginsburg represented an ideal of American Jewish liberalism that recoiled at the unbridled, unprincipled exercise of raw political power. And that is what we are facing now.


Ruth Bader Ginsburg via the Amos Trust

Comments (4)

  • Marge Berer says:

    These are both very nice memorial statements. But I think it should be noted that Ruth Bader Ginsburg was not a practising Jew. The Washington Post in 2008 reported the following: “Ginsburg said she is not an observant Jew, though she was raised in such a household. She somewhat reluctantly told the audience that her decision can be traced to her mother’s death when Ginsburg was 17. Although there was “a house full of women,” Jewish law required 10 men to convene a minyan, or communal prayer.” Ginsburg said she might feel differently if she were young now; she recently attended a Washington bat mitzvah where both the rabbi and cantor were women.”
    See: https://web.archive.org/web/20081007132256/http://www.washingtonpost.com/wp-dyn/content/article/2008/01/14/AR2008011402290.html

    I also read elsewhere that she had stopped practising because they would not allow her to be in the minyan.

    I have also written an In Memoriam about her: https://bererblog.wordpress.com/2020/09/19/in-memoriam-ruth-bader-ginsburg-1933-2020-fire-and-steel-on-the-us-supreme-court/
    I think her insistence on justice was what defined her.

    One of my cousins told me last night that her death has “caused a political crisis”. If Trump is not stopped from appointing someone to replace her, which by legal precedent he should not do, I will hold a one-woman demonstration at the US Embassy. I hope it brings the entire women’s movement in the US into the streets and affects how women especially vote in this travesty of an election that is coming.

  • Ruth Bader Ginsburg was undoubtedly courageous on many issues. However we should also not forget that when it came to Israel she was a Progressive Except for Palestine.

  • Jack says:

    She is rightly recognised for supporting women’s rights but did she support rights for Palestian women and men?

  • Naomi Wayne says:

    Tony Greenstein is right – RBG was Progressive Except for Palestine where, I reckon she was a pretty mainstream American liberal Jew of her age and generation (so a little bit progressive, but loath to make the big jump). She was also no economic radical. But I don’t think that means we ignore or write off her extraordinary feminist trailblazing. As a woman who worked in the field of anti discrimination law, especially sex discrimination law, I value her for the way she led the way in US law, which permeated how we think here, in the best possible ways. I also respect the way she insisted on her Jewishness, whilst not being a practising Jew. After all, if that were to disqualify her, it would have a pretty big impact on the Jewish left too!

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