This article is part of a symposium on the case law of the late judge Ruth Bader Ginsburg.
Katherine Franke is James L. Dohr Professor of Law and Director of the Center for Gender and Sexuality Law at Columbia University.
The Supreme Court Judge Ruth Bader Ginsburg will be remembered as the chief architect of the Gender Equality Act. Her idea of gender justice has three key components that should be considered as we digest her larger life and legacy as an attorney, teacher, and member of the Supreme Court.
First, understanding Ginsburg's legacy is enhanced by appreciating how she was a proceduralist at heart. In the early 1960s, Ginsburg traveled to Sweden and learned Swedish to work with legal scholar Anders Bruzelius on a project on the code of civil procedure in Europe. This early love of procedure shaped, if not underpinned, her approach to gender equality.
Ginsburg's concept of gender equality was based on a fundamental commitment to liberal humanism: Each person should be judged individually, rather than on the basis of stereotypes or generalizations associated with the class of the person to which they belong. Because of this, we all share a fundamental humanity and should be viewed as human beings, not as sexual bodies. So the injustice of gender discrimination was to be treated “as a woman” or “as a man”. In this regard, their approach to gender discrimination reflected a liberal approach to racial discrimination, calling for the use of gender-blind choices (to borrow an outdated and insensitive term) in employment, housing, education, and other parts of civil life. "Sex, like race, is a visible, unchangeable trait that has no necessary relationship to ability," she advised the court at her hearing in Frontiero v. Richardson. "Since a person's skin color is not necessarily related to ability, a person's gender – as the respondents admit – is not necessarily related to ability."
We should understand Ginsburg's concept of gender equality as procedural, as it imposes a test to detect discrimination that is methodological rather than substantive. Rather than urge the courts to conduct a substantive analysis of the type of power that leads to gender inequality such as patriarchy, the Ginsburg approach instructs the courts to ask a simple question: Was a person's treatment "because of" or "because of" their gender? If so, then gender discrimination was underway, as a person's gender should be irrelevant in determining his or her qualification for any social good or bad, just as consideration of a person's race is presumably inadmissible.
Liberal feminism, however, did not dominate feminist thought at the time. Cultural feminists viewed this approach as desperately wrong in that they ignored the way in which women differed from men. They argued that these differences should be celebrated and not eliminated. They also argued that Ginsburg's liberal feminist approach had no impact on discrimination during pregnancy – one of the central and material forms of gender discrimination based on real differences between men and women. Dominant feminists offered a competing critique of liberal feminism, summarized primarily by Catharine MacKinnon as follows: "Why should you have to be identical to a man to get what a man gets simply because he is a man?"
Even so, due to Ruth Bader Ginsburg's work as an attorney in the 1970s, a liberal approach to gender discrimination has emerged as the dominant legal basis for the matter, and we see this in the court rulings in the Reed v Reed case (1971 ), Frontiero (1973), Weinberger v. Wiesenfeld (1975) and Craig v. Boren (1976).
The second aspect of Ginsburg's concept of justice is that she always insisted that the material reality of gender discrimination is central to the legal analysis of gender classifications. Your hearing before the Supreme Court in Weinberger is an excellent example. The case challenged a rule in Social Security Act that allowed a woman to inherit her deceased husband's social security benefits, but not a husband to inherit a deceased woman's benefits. Her oral argument on this case was stunning, brilliant, and detailed when it came to describing how sexism works in daily life:
In practice, laws of this quality help ensure that women do not stay on the pedestal but in a cage. You have strengthened, not eliminated, the subordinate position of women in the labor force … Your attention to the families of insured male workers, their wives and children is expressed in the system that further disadvantages women workers, far from economic discrimination against Correcting women … The implication is to encourage the traditional division of labor between men and women to underline two assumptions. First, this level of payment, including related benefits, is the prerogative of men. and, second, that women, but not men, should appropriately reduce their working contribution to childcare.
The means put forward by Ginsburg to prove discrimination were procedural in nature. Was Stephen Wiesenfeld denied services “because of his gender”? – but that rule was embedded in a very thick description of the evil work that gender discrimination has done in real people's lives. We saw Ginsburg take similar steps when she moved from attorney to justice. In Ledbetter v Goodyear Tire & Rubber Co. (2007), the court ruled that the statute of limitations for a claim to sex discrimination begins when the discrimination begins and not when the discriminated party learns of the discrimination. In strong contradiction, Ginsburg delivered a sermon on how gender discrimination really works in the workplace: “Wage differences often, as with Ledbetter, appear in small steps; Suspicions that discrimination is at work develop over time. Additionally, comparative salary information is often hidden from the employee's perspective. "
A third aspect that we should mention about Ginsburg's legacy is that, unlike, for example, her colleague Justice Anthony Kennedy, she is more committed to a policy of equality than freedom. Unlike many proponents of reproductive justice in the 1970s and today, Ginsburg viewed sexual freedom – including reproductive rights – not necessarily as an end in itself, but as an instrument for the greater cause of gender equality. Ending discrimination on the basis of pregnancy and ensuring access to all reproductive health care, including contraception and abortion, were, in their view, necessary to safeguard women's jobs and equality for citizens. In her briefs and legal opinions, she returned to the idea that women in the workplace could never be completely equal or enjoy the status of full and equal citizens if they could not control their reproductive lives. In this sense, the protection of reproductive rights and sexual freedom has been a means of ensuring equality between women and men. She was less inclined to fundamentally defend sexual rights than fundamentally independently.
When Ruth Bader Ginsburg, barely three feet tall even in her pumps, discussed her case in front of the Supreme Court in Duren v. Missouri (1979), Chief Justice Warren Burger leaned over to her and said, “Mrs. Ginsburg, you can lower the lectern if you want. “She replied," Yes I could do that. " “Yes, I could do that” captures the ethos of her work as a gender equality attorney and her power, brilliance and valor as a lawyer. She was not a radical feminist, but rather her approach to gender equality was shaped by what the law could do in eliminating gender classifications and stereotypes in a variety of contexts. When she finished her hearing in Frontiero and quoted Sarah Grimke powerfully, “I'm not asking for any favors for my gender. All I ask of our brothers is that they take their feet off our necks. "
Symposium: The liberal yet powerful feminism of Ruth Bader Ginsburg,
SCOTUSblog (October 9, 2020, 2 p.m.),