This year marks two significant milestones in the life and career of U.S. Supreme Court Justice Ruth Bader Ginsburg: her 80th birthday on March 15th and the 20th anniversary of her confirmation to the U.S. Supreme Court on August 10th. NELA takes this opportunity to celebrate Justice Ginsburg and her contributions to advancing equality and justice in the workplace as a litigator and as a Supreme Court Justice.
Justice Ginsburg experienced gender discrimination herself both during law school and when seeking employment. When she informed one potential employer of her pregnancy, her job offer was rescinded. Then, upon entering Harvard Law School in 1954 as one of nine women, the dean asked her and each of the other eight women why they were taking a seat intended for a man. Despite graduating at the top of her class, she, like Justice Sandra Day O’Connor, received not a single job offer and was turned down by some 14 law firms. After also being turned down as a law clerk by U.S. Supreme Court Justice Felix Frankfurter because he didn’t believe the Court was ready to have a woman as a clerk, she would eventually be hired as a law clerk by U.S. District Court Judge Edward Palmieri in Manhattan. Justice Ginsburg would later become a tenured professor at Rutgers School of Law-Newark and then Columbia Law School, where she transferred to and graduated from in her third year of law school.
As both a litigator and professor, Justice Ginsburg helped pave the way toward gender equality through Supreme Court advocacy. In 1971, she authored a brief for the American Civil Liberties Union (ACLU) asking the Justices to find, for the first time, that the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution banned discrimination based upon gender. Not only was Reed v. Reed the first case she worked on before the Court, but it was also Justice Ginsburg’s first victory: the Court struck down the discriminatory law, which had required men to be favored over women for appointment as estate administrators.
To further her work on behalf of gender equality, she founded the ACLU’s Women’s Rights Project in 1972, in her words, “to go after the stereotypes that were written into law.” She would lead the Women’s Rights Project and teach at Columbia until her confirmation to the U.S. Court of Appeals for the D.C. Circuit in 1980. Her work in the more than one dozen cases she participated in or argued before the Court reflected her view that gender discrimination was unconstitutional, whether the victim was a man or a woman. Unlike her legal counterparts in the movement for racial equality, Justice Ginsburg’s approach to social change through the courts favored gradual, incremental progress. Though Justice Ginsburg is often referred to as the Thurgood Marshall of the women’s rights movement, the two pioneering Justices held divergent views on the best means of achieving social change, with Justice Marshall preferring decisions that struck down whole classes of laws, like Brown v. Board of Education. She told Jeffrey Toobin for his recent article in The New Yorker (subscription required), when discussing how the Court had approached the cases she brought as a litigator: “the Court, in effect, opened a dialogue with the political branches of government. . . [and] wrote modestly, it put forward no grand philosophy.” She believes that pushing for broad, sweeping changes in a single case could energize those opposed to equality, citing emboldened anti-abortion advocates in the wake of Roe v. Wade. It is this cautious approach—having courts rule on incremental changes and leaving it to legislatures to enact broad measures—that Justice Ginsburg has favored both as a litigator and during her tenure on the Supreme Court.
President Bill Clinton nominated her to the U.S. Supreme Court in 1993. In comparison to the contentious, partisan treatment of today’s judicial nominees, Justice Ginsburg faced a relatively uneventful confirmation hearing before the Senate Judiciary Committee and was confirmed 96-3 by the U.S. Senate. As she said during a speech at Southern Methodist University in 2011, “Today, my ACLU connection would probably disqualify me.” While that may not be true, she likely would have had more votes against her. Take, for example, the confirmation battles of U.S. District Judges Edward M. Chen (confirmed 56-42) and William J. Martínez (confirmed 58-37), who both were accused by Senator Jeff Sessions (R-Ala) of having the “ACLU chromosome” or “ACLU DNA”, respectively.
Justice Ginsburg’s background and philosophy on the law as a litigator can be seen in the decisions she has rendered as a judge, none more clearly than in her impassioned dissent in Ledbetter v. Goodyear Tire & Rubber Co. A majority of the deeply divided Court found that because Lilly Ledbetter had failed to challenge her employer’s decision to pay her less than her male counterparts within 180 days of that decision, her claim for pay discrimination was time barred. In Justice Ginsburg’s dissenting opinion, which she was moved to read from the bench, she wrote that the majority opinion favored an approach that was out of “tune with the realities of the workplace” and not respectful of “Title VII's remedial purpose.” She gave as an example the fact that “Pay disparities often occur, as they did in Ledbetter’s case, in small increments… Comparative pay information, moreover, is often hidden from the employee’s view.” It is this sort of real-world analysis that reflects Justice Ginsburg’s experience representing clients, recognizing what workers face on a daily basis. She then noted that “the ball again lies in Congress’s court[,]” calling on the legislature to correct the majority’s “parsimonious reading of Title VII.” Congress responded by passing the Lilly Ledbetter Fair Pay Act of 2009, the first bill signed into law by President Barack Obama.
On her 80th birthday, NELA honors Justice Ginsburg for her many contributions to advancing equality and justice in the workplace as both an advocate and a judge. Justice Ginsburg’s brand of experiential diversity is sorely lacking on today’s federal bench. We believe this dearth of experience has led to judicial hostility to workers’ rights cases, like Lilly Ledbetter’s, and invite you to read more about this problem in NELA’s Report, Judicial Hostility To Workers’ Rights: The Case For Professional Diversity On The Federal Bench. NELA is committed to working with the Obama Administration to shepherd professionally diverse candidates for federal judgeships through the vetting, nomination, and confirmation processes as a means of ensuring that workers receive equal justice under the law, as well as enhancing the quality of decision making for litigants in employment cases.
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If you would like more information about becoming a federal judicial candidate, are a candidate for a federal judicial vacancy who would like to be endorsed by NELA, or know someone who NELA should consider endorsing, please contact NELA Program Director Rebecca Hamburg Cappy or NELA Legislative & Public Policy Director Julie M. Strandlie.