RBG’s legacy, one year later
We live in polarizing times. Americans have starkly different views about the pandemic, Afghanistan, taxes, rising crime rates, climate change and much more. The disagreements are bitter and the tone is harsh. Is it even possible to persuade people who don’t already agree with us?
Ruth Bader Ginsburg knew how to do this. Exactly a year after her passing, we should remember the advice she regularly gave. “Fight for the things that you care about,” she would say, “but do it in a way that will lead others to join you.”
These were not just words for Ginsburg. She spoke from personal experience. Before she became a judge, RBG was a trailblazing advocate for women’s rights. Almost singlehandedly, she persuaded the Supreme Court that gender discrimination is unconstitutional, winning five of the six cases she argued there in the 1970s.
How did she do it? The secret to her success sounds a lot easier than it is: RBG had a gift for seeing issues through other people’s eyes. She knew that she had to understand their view in order to win them over. This is a lesson we all need to learn.
RBG learned it out of necessity. Her job was to persuade judges, who were virtually all men in the 1970s. Most took for granted that the law could treat men and women differently. A judge’s “immediate reaction to a gender discrimination challenge would likely be: But I treat my wife and daughters so well,” Ginsburg explained.
To reach this unsympathetic audience, RBG had to pick her arguments carefully. The goal was not to make other women’s rights advocates cheer, since they already agreed with her. Instead, she had to win over those skeptical judges. She saw herself as a “teacher from outside the club, or the home crowd.”
How could she reach male judges? One of her most effective strategies was to represent a male client, so they could identify more readily with his plight.
Her first was Charles E. Moritz, a traveling salesman for a book company. Since his 89-year-old mother lived with him, he paid someone to care for her while he was on the road. Moritz claimed a dependent-care deduction on his tax return. But although it was available to women, married couples and men who were widowed or divorced, the $600 deduction was not available to Moritz, who had never married.
Representing himself in the tax court, Moritz had written a very short brief, which said, “If I were a dutiful daughter instead of a dutiful son, I would have received the deduction. This makes no sense.”
When the tax court denied his claim, RBG represented him on appeal. “Had petitioner been a divorced man or a widower, or had he been a single woman whether or not divorced or widowed, he would have been allowed the dependent care deduction,” she contended. “Solely because of his status as a never-married man, he was denied that deduction by the terms of the statute.” The U.S. Court of Appeals agreed, finding this gender-based distinction unconstitutional.
RBG represented another sympathetic male plaintiff in Weinberger vs. Wiesenfeld. When Paula Wiesenfeld died in childbirth, her husband Stephen applied for Social Security benefits, so he could devote himself full-time to raising their son Jason. Yet the system provided support for raising young children only to widows, not to widowers.
Challenging this rule at the Supreme Court, RBG started with its unfairness to Paula. As a high school math teacher, she made the same social-security contributions as male colleagues. Why shouldn’t her family receive the same benefits?
RBG also emphasized the harm to Stephen, knowing it would resonate with the court. This rule recognized “the mother, to the exclusion of the father, as the nurturing parent,” she argued. “She may stay home with her child, he may not stay home with his.” A male judge could easily identify with Stephen, wondering what he would do in these heartbreaking circumstances.
RBG also condemned this rule’s callousness to an innocent baby. “Jason Paul Wiesenfeld, child of a deceased mother..., is the person ultimately disadvantaged by the statutory scheme,” she urged the court. “A child whose insured father dies may receive the personal care of its surviving parent, but the child whose insured mother dies must get along without the personal care of either parent.”
This powerful advocacy secured a unanimous judgment. “The Court was getting the message,” she later recalled.
The message for us should be clear as well: Don’t just preach to the converted, no matter how passionately held your position. Instead, we need to persuade the people who don’t already agree with us. To win them over, we have to see the world through their eyes.