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04

Mar

2015

A Legacy of Justice

 
The Legacy of Ruth Bader Ginsburg

Ruth Bader Ginsburg was the second woman appointed to the highest court in the United States, and her tenure there has been a storied one. In her 22 years on the Supreme Court, Justice Ginsburg has become a leading figure in the battle for gender equality and civil rights. We asked four contributors to the new volume The Legacy of Ruth Bader Ginsburg to weigh in on how she will be remembered.

 

From United States v. Virginia to Burwell v. Hobby Lobby, it’s clear that Justice Ginsburg has already made an unforgettable impact on US law and American culture. Contributors to the new book The Legacy of Ruth Bader Ginsburg tackled a challenging question:

Which case will come to define Ruth Bader Ginsburg’s legacy decades from today?

Scott Dodson

Professor of Law and Harry & Lillian Hastings Research Chair, UC Hastings College of the Law

Ruth Bader Ginsburg’s most famous opinion is undoubtedly United States v. Virginia, the seminal case striking down the all-male admissions policy of Virginia Military Institute. That case, of course, is one point of an indelible mark Ginsburg has made in gender equality, both in the law and in society. But her legacy is subtler and even broader. She is an icon to millions because of her compelling personality both on and off the bench. Her reasoned and measured persistence, her clear-sightedness, her passion and love for the Court, and her attention to the individual has made her not just a famous jurist but “The Notorious RBG.” That is what history will remember.

Cary Franklin

Assistant Professor of Law, University of Texas School of Law

If I had to choose one opinion that embodies Justice Ginsburg’s contributions to American law, I might choose Nevada Department of Human Resources v. HibbsHibbs upheld a key provision of the Family and Medical Leave Act, finding that it was within Congress’s power to combat sex discrimination to require employers to provide all employees with twelve weeks of family leave. The Court explained that employers often assume that women will leave work to engage in family caregiving, and that men will not. The Court noted that, in the absence of a uniform leave policy, “[t]hese mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver” and precluded men from doing so. The reasoning was vintage Ginsburg—which makes it all the more remarkable that the opinion was written by Chief Justice Rehnquist. When scholars in the future assess Ginsburg’s legacy, they will surely note how much she taught us all.

Neil S. Siegel

David W. Ichel Professor of Law; Professor of Political Science; Co-Director, Program in Public Law, Duke Law School

A case unfamiliar to many, Struck v. Secretary of Defense. In our chapter, Reva Siegel and I call attention to then-Professor Ginsburg’s 1972 merits brief in Struck. The brief has been underappreciated because the Supreme Court eventually declined to decide the case. As general counsel for the ACLU’s Women’s Rights Project, Ginsburg filed the brief on behalf of Air Force Captain Susan Struck, whose pregnancy—and whose religious refusal to have an abortion—subjected her to automatic discharge from military service. The brief demonstrates that, from the start, Justice Ginsburg has viewed laws imposing traditional sex stereotypical roles on pregnant women as a core case of sex discrimination. She argued in Struck that such laws violated equal protection because they denied individual women equal opportunity and imposed on women as a group a dependent, subordinate status in American society.  Haltingly but discernibly, America is coming to adopt as its own Ginsburg’s constitutional vision in Struck of substantive, not just formal, equality—her insistence on the equal citizenship stature of all people, including women, communities of color, and sexual orientation minorities.

Dahlia Lithwick

Senior Editor, Slate Magazine

As a matter of pure doctrine, the VMI case will probably be the legal landmark that best defines Justice Ginsburg’s constitutional thinking for legal historians. But her dissent in the Hobby Lobby case last year seems to be the case that cemented her status as American icon; it was largely in the wake of that case that Ginsburg became a fixture on t-shirts, bumper stickers, and even Halloween costumes. That dissent was quite deliberately written to and for young American women — the women who don’t ordinarily follow the intricate workings of constitutional claims. And Ginsburg’s message was clear: Beware what this Court determines about your reproductive rights, and about who gets to decide that, and know what path we have started down today. Ginsburg’s dissent mentioned “women” 43 times as compared to just 13 mentions in the majority opinion. It was a call to action. And what was striking about that dissent was the extent to which Ginsburg’s message was received: Women heard the warning, and rallied behind her. The very words of that dissent became t-shirts and songs. That dissent may not have has as much salience inside the Supreme Court building. But in the world of popular culture—of Twitter and t-shirts and tweens—it was the first time in a long time that citing a Supreme Court Justice was a sexy thing…

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