Indelibly affected by this injustice, and others, the woman who would become Supreme Court Justice Ruth Bader Ginsburg dedicated her life to defying and dismantling institutionalized gender discrimination, both on her own behalf and on behalf of all people. The America we inhabit today, where women fly military fighter jets, occupy a quarter of the U.S. Senate and account for half of all first-year law students, is a different and better — though still far from completely equal — nation, due in no small part to the courageous career of Justice Ginsburg, who died on Friday.
She passed away having attained not only the heights of the legal profession, but also, improbably enough, the status of feminist pop culture icon. Dubbed “the Notorious RBG” by youthful admirers, Justice Ginsburg by the time of her death was the subject of Hollywood movies, songs, a board game and countless Internet memes. Justice Ginsburg clearly reveled in the acclaim and used the platform it gave her to encourage and influence young women. But there was nothing glamorous or frothy about the ferocious work ethic and attention to detail that enabled her to rise in the law decades earlier. Persuasive argumentation, not celebrity, won her five of the six gender-equality Supreme Court cases she litigated for the American Civil Liberties Union in the 1970s.
As an advocate, Justice Ginsburg took her cue from an earlier icon, Judge Learned Hand, who famously defined the “spirit of liberty” as the willingness to “understand the minds of other men and women.” She accordingly presented nine male justices with cases in which men had been disadvantaged by legally enshrined gender stereotypes, demonstrating that the harms extended to everyone, and engaging the court’s empathy. In the 1973 case of Frontiero v. Richardson, for example, she showed that it was irrational, and unconstitutional, to deny the husband of a female Air Force officer the dependent benefits that a male officer’s wife would have been entitled to.
As a justice herself, in 1996, Justice Ginsburg persuaded all of her colleagues but one to join her in striking down the male-only admissions policy of the state-run Virginia Military Institute. “Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description,” Justice Ginsburg wrote. Twenty-two years later, she visited VMI, where 194 of the 1,700 cadets were women, and observed that, despite the school’s resistance to co-education, she had always believed the court’s ruling “would make VMI a better place.”
When she could not persuade a majority, as was often the case, because she was a liberal on a generally conservative court, Justice Ginsburg dissented, most powerfully in her prophetic protest against the court’s 2013 decision striking down a key provision of the Voting Rights Act. Given that historic 1965 law’s impact on Black enfranchisement, and the potential that states could revert to racially biased practices, the ruling was “like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote. Sometimes, as in the case of the court’s 2007 denial of a woman’s wage discrimination claim, Congress would correct the law in accordance with a Justice Ginsburg dissent. For the most part, though, the minority positions she took — in favor of gun control, campaign-finance regulation and wider access to contraception in spite of religious objections — define a progressive America that is yet to be realized.
Still, the justice has amply earned the legacy she wished for: “I would just like people to think of me as a judge who did the best she could with whatever limited talent I had,” Justice Ginsburg said at the University of California Hastings College of Law in 2011, “to keep our country true to what makes it a great nation and to make things a little better than they might have been if I hadn’t been there.” To consider Justice Ginsburg’s steadfast belief in social progress through persuasion, and to recall that President Bill Clinton, upon nominating her for the court in 1993, praised her as a “force for consensus-building,” is to understand another way in which the United States has changed during Justice Ginsburg’s lifetime — not for the better. The White House’s current occupant values not persuasion or consensus but force and bombast, and he finds enablers in his fellow Republicans’ Senate majority.
Majority Leader Mitch McConnell (R-Ky.) refused even to consider President Barack Obama’s nominee to replace Justice Antonin Scalia upon that conservative icon’s sudden passing in February 2016. Purportedly, this was because a president and Senate of opposite parties should not change the court during a presidential election year, and should instead let the American people weigh in first. Now, Mr. McConnell implies the impending election is irrelevant, even though it is only six weeks away, because the same party controls both the Senate and White House. He promises a vote on President Trump’s nominee to replace Justice Ginsburg — possibly before the election or possibly during a lame-duck session, even if Mr. Trump loses and Democrats have won the Senate.
Such a grab for partisan advantage, on the basis of contrived and hypocritical logic, could undermine public confidence in the Supreme Court and further envenom already toxic relations between Republicans and Democrats on Capitol Hill, possibly provoking Democrats to pack the court, if they get the chance. The only thing in Mr. McConnell’s way is the willingness of Republican senators to stand for principle. Ruth Bader Ginsburg understood that a legitimate democratic system cannot be built on double standards; she spent her life fighting against them. A critical mass of GOP senators must find the courage to do the same thing now.