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Ginsburg spent nearly 40 years on the bench, first as a judge on the US Court of Appeals for the DC Circuit and then on the Supreme Court.
Chris Geidner and
Posted on September 18, 2020, at 7:37 p.m. ET
WASHINGTON — Justice Ruth Bader Ginsburg, the trailblazing lawyer for sex equality who served on the US Supreme Court for more than 25 years, has died, the court announced. She was 87.
The death of the liberal firebrand in the final year of the Trump administration sets the stage for a brutal partisan nomination fight over her successor. The confirmation of a conservative justice to replace Ginsburg would continue the rightward shift of the court since President Donald Trump took office, putting progressive views solidly in the minority on the Supreme Court for the indefinite future.
Ginsburg spent nearly 40 years on the bench, first as a judge on the US Court of Appeals for the DC Circuit and then on the Supreme Court. As the co-founder of the Women’s Rights Project at the American Civil Liberties Union, Ginsburg played a leading role — if not the key role — in pressing courts to accept legal arguments that laws that treated men and women differently are unconstitutional.
Even those she fought most strongly in her efforts acknowledged her role as “the Thurgood Marshall of gender equality law,” a title that put her in the company of the trailblazing civil rights pioneer.
Over the past decade, Ginsburg survived multiple bouts with cancer and other health setbacks, but each time she returned to the bench and dismissed speculation that she might retire. She was treated for cancer in 2009, then again in August 2019, and most recently in the summer of 2020. In 2014, she was treated for a blockage in one of her arteries. In November 2018, she fell and fractured three ribs — doctors then discovered malignant nodules in her left lung, which were removed.
Just days before Ginsburg released a statement on July 17, 2020, announcing that she was receiving chemotherapy for a recurrence of cancer, the court notified the public that Ginbsurg had been admitted to a hospital in Baltimore for a separate issue related to a bile duct stent. In her July statement, Ginsburg said that despite her health setbacks, she’d kept up her work and maintained an “active daily routine.”
“I have often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that,” she said at the time.
The Brooklyn-born lawyer became a celebrity of sorts in recent years — a combination of her efforts to publicize her views and make them accessible to the public and efforts by younger generations, particularly younger women, to share Ginsburg’s story as one of a woman who was a national leader and worthy of fame beyond legal circles.
In 2015, authors Irin Carmon and Shana Knizhnik tapped into Ginsburg’s status as a pop culture icon with their book Notorious RBG. A documentary about the justice’s life, RBG, was nominated for an Academy Award in 2019. That year, actor Felicity Jones played her in the movie On the Basis of Sex, a fictional account of one of the early cases she worked on. Fans could buy necklace and earring versions of her decorative collars, known as jabots. On Saturday Night Life, comedian Kate McKinnon repeatedly portrayed the justice, delivering zingers she called “Gins-burns.”
“It was beyond my wildest imagination that I would one day become ‘Notorious RBG,’” Ginsburg said in an Aug. 26 speech, which marked her first public appearance after completing a round of treatment for pancreatic cancer. “I am now 86 years old, yet people of all ages want to take their picture with me — amazing.”
The interviews and books, as well as a documentary and star-studded movie based on her life, were, in some ways, inevitable.
More than 45 years ago, on Jan. 17, 1973, Ginsburg made her first oral argument at the court, ending her time at the podium by citing Sara Grimke, an abolitionist who also fought for women’s rights. In a moment that has reverberated since, Ginsburg quoted two sentences from Grimke: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
She embraced her status as a feminist icon. Whenever she was asked how many female justices would be enough on the nine-member Supreme Court, she would answer: “When there are nine.”
President Bill Clinton’s nomination of Ginsburg in 1993 came about in part, she and others have said, due to the strong advocacy of her husband. When Justice Byron White announced his retirement from the bench in Clinton’s first year in office, Martin Ginsburg — as detailed by Jill Lepore in the New Yorker — was working to ensure that his wife was among those being considered by the new administration.
Ultimately, the effort succeeded, and Clinton met with Ginsburg on June 13, 1993. That day, Clinton decided and told Ginsburg she would be his nominee to the Supreme Court. The next day, he announced her nomination.
For the next 25 years, Ginsburg — the second woman on the high court after former justice Sandra Day O’Connor — became one of the most consistent liberal voices on the court. Particularly since the retirement of the late justice John Paul Stevens in 2010, Ginsburg has been the senior liberal voice on the Supreme Court, authoring influential majority opinions.
As was the practice of her longtime friend and ideological opposite, the late justice Antonin Scalia, Ginsburg also authored strident, direct dissents that sought to direct lawmakers and members of the public who were likely to be in agreement with her to pay attention to the fact that, in her view, the court got it wrong.
One of her most famed dissents came in response to a sex discrimination case brought by Goodyear employee Lily Ledbetter. When Ledbetter realized that she was being paid less than her similarly situated male co-workers due to past performance evaluations that she argued were themselves discriminatory, she sued. The Supreme Court ruled 5-4 against Ledbetter, holding that Ledbetter’s claim was not allowed because the clock had already run out on filing a claim —the proper time for filing her complaint, the court held, would have been when she first received the discriminatory evaluations.
“The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time,” Ginsburg wrote in her dissent.
Going further, however, Ginsburg sent a blunt message to lawmakers: “This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. … Once again, the ball is in Congress’ court. As in [the past], the Legislature may act to correct this Court’s parsimonious reading of Title VII.”
The Lilly Ledbetter Fair Pay Act of 2009, reversing the court’s decision, was the first bill signed into law by then-president Barack Obama.
Ginsburg’s majority opinions for the court have had similar power. In 1996, in her third year on the bench, Ginsburg wrote the court’s majority opinion striking down the Virginia Military Institute’s male-only admissions policy.
Ginsburg laid out the history of the court’s handling of sex discrimination cases, assessing their importance and detailing what those cases meant for the country in 1996.
“Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history,” she wrote. “As a plurality of this Court acknowledged a generation ago, ‘our Nation has had a long and unfortunate history of sex discrimination.’”
The case Ginsburg was referring to, Frontiero v. Richardson, was the first one she’d argued before the court.
As a lawyer for the ACLU Women’s Rights Project, Ginsburg worked on a brief the group filed in the Supreme Court as an amicus curiae, or friend of the court, in a case called Reed v. Reed. In Reed, the Supreme Court in 1971 struck down a law that “males must be preferred to females” to administer a family member’s estate. Chief Justice Warren Burger wrote that the law was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”
When Ginsburg argued her first case before the court two years later, the Frontiero case, she was seeking clarification about the standards for reviewing other, similar types of discriminatory laws. The case centered on Air Force dependents’ benefits, which were automatically granted to a man in the military with a wife but only granted to a woman in the military with a husband if she provided evidence of the husband’s financial dependency.
Ginsburg argued the court should apply the Equal Protection Clause of the Fourteenth Amendment to sex-based discrimination claims similar to how the court had analyzed race-based claims. “To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion,” she told the court.
Under that “suspect criterion” standard, such laws are presumptively unconstitutional. For the government to win, it had to show that such laws advanced a compelling government interest and that the discriminatory provision was narrowly tailored to advance that interest.
Although the court sided with Sharron Frontiero, the woman Ginsburg was supporting, only four justices — not a majority — adopted Ginsburg’s “suspect classification” reasoning to resolve the case, with the others holding that the statute in question was impermissible because it represented an “arbitrary legislative choice.”
Ginsburg’s next argument at the court showed that she still had work to do. She lost, with the court holding 6-3 that a Florida tax law that provided an exemption to widows but not widowers was constitutional.
Three years later, however, in a case where Ginsburg authored the ACLU’s amicus brief, the Supreme Court did — in a 5-4 vote — adopt the view that laws that differentiate based on sex should be subjected to more scrutiny by the court than laws that do not. Specifically, the court held that an intermediate, or heightened, scrutiny applied and that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”
Her work continued at the ACLU, alongside her life with her husband, prominent tax lawyer Martin Ginsburg, and their children, Jane and James. The couple had married before attending Harvard Law School. She was caring for her husband, raising Jane, and attending law school all at the same time when he was diagnosed with and treated for cancer.
After graduating from Columbia Law School — to which Ginsburg transferred when her husband moved to New York City after he graduated from law school the year before her — she was unable to find work at a law firm. After clerking for a federal judge in New York, Ginsburg ended up taking a job as a law professor at Rutgers University, where she primarily taught civil procedure law and eventually received tenure. She later moved to Columbia, where she continued to teach while working with the ACLU.
In 1980, President Jimmy Carter — who had made a point of advocating for more diversity in the judiciary — nominated Ginsburg for the DC Circuit, where she served until she joined the Supreme Court.
Zoe Tillman is a senior legal reporter with BuzzFeed News and is based in Washington, DC.
News – Supreme Court Justice Ruth Bader Ginsburg Has Died