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Jane Sher­ron De Hart ex­plores how Ruth Bader Gins­burg’s up­bring­ing in­spired her com­mit­ment to so­cial jus­tice

The Jerusalem Post Magazine - - CONTENTS - • GLENN C. ALTSCHULER The writer is the Thomas and Dorothy Litwin Pro­fes­sor of Amer­i­can Stud­ies at Cor­nell Uni­ver­sity.

On Jan­uary 17, 1973, Ruth Bader Gins­burg made her first oral ar­gu­ment be­fore the Supreme Court of the United States. Im­pec­ca­bly dressed, and wear­ing her late mother’s jew­elry, the di­rec­tor of the Women’s Rights Project of the Amer­i­can Civil Lib­er­ties Union ex­plained why the high court should sub­ject gen­der-based laws and reg­u­la­tions to the strictest scru­tiny in the case of Fron­tiero vs Richard­son.

Gins­burg con­cluded her ar­gu­ment that women de­served equal pro­tec­tion un­der the Four­teenth Amend­ment of the US Con­sti­tu­tion with a quote from Sarah Grimke, a 19th-cen­tury abo­li­tion­ist and fem­i­nist: “I ask no fa­vor for my sex. All I ask from my brethren is that they take their feet off our necks.”

As was his wont, Jus­tice Harry Black­mun graded Gins­burg’s pre­sen­ta­tion. Not­ing that she was “very pre­cise” but ex­ces­sively “emo­tional,” leav­ing him “wary and a lit­tle grumpy,” Black­mun gave her a C-plus. Next to Gins­burg’s name, Black­mun wrote “J,” his ab­bre­vi­a­tion for “Jew.”

Au­thor Jane Sher­ron De Hart won­ders whether the des­ig­na­tion sig­ni­fied the provin­cial­ism, and per­haps the prej­u­dice, of a self-styled Mid­west­ern “coun­try boy.” De Hart notes as well that Gins­burg’s ar­gu­ment con­vinced Jus­tice Thur­good Mar­shall, who had voted against hear­ing the case, to ap­ply “strict scru­tiny” to sex-based as well as race-based dis­crim­i­na­tion.

In Ruth Bader Gins­burg: A Life, De Hart, an emerita pro­fes­sor of his­tory at the Uni­ver­sity of Cal­i­for­nia, Santa Bar­bara, and the co-au­thor of Sex, Gen­der, and the Pol­i­tics of the ERA, pro­vides an in­for­ma­tive ac­count of the arc of Gins­burg’s life and ca­reer. Fa­mil­ial roots in the ex­o­dus of Jews from East­ern Europe and Rus­sia, and tikkun olam (the He­brew in­junc­tion to “re­pair the world”), she in­di­cates, sup­plied the in­spi­ra­tion for her com­mit­ment to so­cial jus­tice. Al­though Gins­burg’s con­tri­bu­tions to Amer­i­can law have been many and var­ied, De Hart pays spe­cial at­ten­tion to the “tiger jus­tice’s” sup­port for more in­clu­sive cit­i­zen­ship for women, blacks, gays and im­mi­grants.

De Hart re­veals the myr­iad ways in which Gins­burg’s fem­i­nism emerged from her per­sonal ex­pe­ri­ences. Celia Bader, we learn, in­sisted that her daugh­ter aim high, be strong and in­de­pen­dent. Tied for first place in her grad­u­at­ing class at Columbia Law School, Gins­burg nonethe­less re­ceived no job of­fers from pres­ti­gious law firms; she had enor­mous dif­fi­culty se­cur­ing a clerk­ship.

As late as 1970, De Hart notes, women con­sti­tuted 3% of the le­gal pro­fes­sion. Of 2,700 lawyers em­ployed in top 20 law firms, a mere 186 were fe­male. Of 10,000 judges, only 200 were women, most of them con­fined to lower courts. Gins­burg be­came acutely aware, as well, of pay dis­par­i­ties for fe­male law pro­fes­sors and the sex-re­lated dis­crim­i­na­tion ex­pe­ri­enced by her ACLU clients. She also un­der­stood that in re­fus­ing to put his ca­reer ahead of hers, Marty Gins­burg, her hus­band, was way ahead of his time.

As a lit­i­ga­tor and a judge, De Hart writes, Gins­burg was rarely reluc­tant to state her views. She an­gered fem­i­nists, for ex­am­ple, by crit­i­ciz­ing Roe vs Wade’s re­liance on a trimester ap­proach (which might be ir­rel­e­vant as fe­tal tech­nol­ogy im­proved) and “pri­vacy” rights (which rested on frag­ile tex­tual back­ing), in­stead of the equal pro­tec­tion guar­an­tees of the Fifth and Four­teenth Amend­ments. That said, Gins­burg also rec­og­nized, with Jus­tice Ben­jamin Car­dozo, that jus­tice of­ten must “be wooed by slow ad­vances.” Faced with con­ser­va­tive ma­jori­ties on the Supreme Court, Gins­burg tried to lay down “way pavers” that might fa­cil­i­tate grad­ual change.

Through­out chief jus­tice Wil­liam Rehn­quist’s ten­ure, De Hart demon­strates, Gins­burg cul­ti­vated a rep­u­ta­tion as a con­sen­sus-seek­ing mod­er­ate, us­ing rel­a­tively neu­tral lan­guage even in her dis­sents. More re­cently, with the dom­i­nance of con­ser­va­tives on the Roberts court, her frus­tra­tion as de facto leader of a quar­tet of lib­er­als has risen to the sur­face. Tak­ing the un­usual step of read­ing dis­sents from the bench 13 times be­tween 2006 and 2015, Gins­burg ex­hib­ited sar­casm, re­gret and anger. The no­tion that a par­tial-birth abor­tion ban ad­vanced “any le­git­i­mate govern­ment in­ter­est,” she pro­claimed, to cite but one ex­am­ple, “is, quite sim­ply, ir­ra­tional.” Sav­ing “not a sin­gle fe­tus from de­struc­tion,” the de­ci­sion was lit­tle more than the en­act­ment of the “moral code” of five Supreme Court jus­tices. An­other dis­sent con­vinced Congress, con­trolled by Democrats in 2009, to pass the Lilly Led­bet­ter Fair Pay Act.

Vir­tu­ally alone among Supreme Court jus­tices, De Hart points out, Gins­burg has be­come a pop­u­lar cul­tural icon, with T-shirts and cof­fee mugs bear­ing her like­ness and slo­gans such as “The Ruth Will Set You Free,” films, doc­u­men­taries, plays and a “No­to­ri­ous R.B.G.” Tum­blr blog de­voted to her. Al­though De Hart crit­i­cizes some her le­gal rea­son­ing, she no doubt counts her­self as a fan – and sup­porter of Gins­burg’s de­ter­mi­na­tion to re­main on the Supreme Court. The diminu­tive jus­tice, De Hart con­cludes, has had an out­sized in­flu­ence: “The law and the con­sti­tu­tional rights and lib­er­ties of the Amer­i­can peo­ple are the bet­ter for her on­go­ing ef­forts.”

(Gary Her­shorn/Reuters)

RUTH BADER GINS­BURG ap­pears be­fore the Se­nate Ju­di­ciary Com­mit­tee for her Supreme Court con­fir­ma­tion hear­ing in 1993 – hold­ing a sign made by her grand­son.

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