Conversations with RBG

1. Ruth Bader Ginsburg's Legal Legacy: Architect of Gender Equality

"I was tremendously fortunate to be born at the right time and to be in the right place."

Strategic advocacy. Ginsburg's approach to dismantling gender discrimination was methodical and strategic. She chose cases that would appeal to male judges, often representing male plaintiffs to demonstrate how gender stereotypes harm both men and women.

Landmark cases. Key victories included:

• Reed v. Reed (1971): Struck down an Idaho law preferring men over women as estate administrators
• Frontiero v. Richardson (1973): Challenged unequal treatment of servicewomen's dependents
• Weinberger v. Wiesenfeld (1975): Secured Social Security survivors' benefits for widowed fathers

Long-term impact. Ginsburg's work fundamentally reshaped American law, establishing gender as a protected class under the Equal Protection Clause of the 14th Amendment. Her advocacy laid the groundwork for future advancements in gender equality, both in law and society at large.

2. The Power of Incremental Change in Constitutional Law

"Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable."

Measured motions. Ginsburg advocated for a cautious approach to constitutional change, believing that gradual progress was more likely to be lasting and accepted by society. She criticized decisions that leapt too far ahead of public opinion, even when she agreed with their outcomes.

Dialogue with legislatures. Ginsburg saw the relationship between courts and legislatures as a dialogue. She believed that courts should generally defer to legislative judgments, intervening only when necessary to protect fundamental rights or disadvantaged minorities.

Long-term strategy. This incremental approach allowed for:

• Building public support over time
• Giving legislatures opportunities to respond
• Avoiding backlash that could undermine progress
• Creating more stable and widely accepted legal changes

3. Roe v. Wade: A Critique of Judicial Overreach

"Roe v. Wade, in its time, was not all that controversial. It was a seven-to-two decision, only two dissenters."

Timing and scope. While Ginsburg supported the right to abortion, she criticized Roe v. Wade for moving too quickly and broadly. She argued that a more limited decision, striking down only the extreme Texas law at issue, would have been less divisive and more effective in the long run.

Alternative approach. Ginsburg proposed grounding abortion rights in equal protection rather than privacy. This would:

• Focus on women's autonomy and equality
• Align with her broader strategy of combating gender discrimination
• Potentially provide a stronger constitutional foundation

Legislative process. By short-circuiting the legislative debate on abortion, Roe galvanized opposition and, in Ginsburg's view, prolonged the controversy. She believed a more gradual approach would have allowed for a stable political consensus to develop.

4. The Evolution of the Supreme Court: From Rehnquist to Roberts

"I regard the Roberts/Rehnquist change as a 'like-kind exchange,' an expression tax lawyers use."

Rehnquist Court. Ginsburg admired Chief Justice Rehnquist for his:

• Efficiency in managing the Court
• Fairness in assigning opinions
• Willingness to evolve on some issues, particularly gender equality

Roberts Court. She saw Chief Justice Roberts as similar in many ways, noting:

• His extraordinary skills as an advocate
• A slightly more relaxed approach to oral arguments and conferences
• Continued efficiency in Court management

Key differences. Ginsburg observed a shift in the Court's approach to certain issues:

• More willingness to strike down economic regulations
• Increased skepticism of administrative agencies
• A potential revival of pre-New Deal doctrines limiting federal power

5. Dissenting with Purpose: Ginsburg's Transformation into "Notorious RBG"

"Dissents speak to a future age. The greatest dissents do become court opinions and gradually over time their views become the dominant view."

Strategic dissents. As the Court became more conservative, Ginsburg increasingly used dissents to:

• Highlight perceived injustices
• Call for legislative action
• Lay groundwork for future legal changes

Notable dissents:

• Ledbetter v. Goodyear (2007): Led to the Lilly Ledbetter Fair Pay Act
• Shelby County v. Holder (2013): Criticized gutting of the Voting Rights Act
• Burwell v. Hobby Lobby (2014): Warned of dangers in religious exemptions

Cultural impact. Ginsburg's powerful dissents, combined with her personal story, led to her emergence as a pop culture icon – "Notorious RBG" – inspiring a new generation of activists and legal scholars.

6. The #MeToo Movement: A Vindication of Ginsburg's Vision

"I think it will have staying power because people, and not only women—men as well as women—realize how wrong the behavior was and how it subordinated women."

Historical context. Ginsburg saw #MeToo as the third major wave of feminism in the 20th/21st centuries, following:

1. The suffrage movement
2. The women's liberation movement of the 1960s-70s

Alignment with Ginsburg's philosophy. The movement embodied key aspects of Ginsburg's approach:

• Emphasis on women's equality in the workplace
• Challenging stereotypes about gender roles
• Highlighting the harm of unconscious bias

Legal implications. Ginsburg believed #MeToo would lead to:

• Increased use of existing anti-discrimination laws
• Potential new legislation addressing workplace harassment
• Greater awareness and change in societal norms

7. Balancing Due Process and Gender Equality in the Modern Era

"The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that, at the same time recognizing that these are complaints that should be heard."

Dual concerns. Ginsburg emphasized the importance of:

• Taking accusations of sexual misconduct seriously
• Ensuring fair procedures for the accused

Institutional reforms. She advocated for:

• Clear, fair procedures in workplaces and universities
• Independent adjudicators to handle complaints
• Balancing the rights of accusers and accused

Long-term vision. Ginsburg saw these reforms as necessary to:

• Ensure the legitimacy and sustainability of the #MeToo movement
• Create lasting change in workplace and social norms
• Uphold fundamental principles of justice while advancing equality

8. The Ongoing Fight for Reproductive Rights and Access

"Many states will never go back to the way it was. And then it will become even more pronounced, to put it bluntly: poor women must breed, affluent women can choose."

Continued challenges. Despite Roe v. Wade, Ginsburg saw ongoing threats to reproductive rights:

• Increasing state restrictions on abortion access
• Potential for Roe to be overturned or significantly weakened
• Disparate impact on low-income women

Legal strategies. Ginsburg advocated for:

• Grounding reproductive rights in equal protection, not just privacy
• Using state constitutions and courts to protect access
• Challenging laws that create undue burdens on women seeking abortions

Broader context. She saw reproductive rights as integral to women's equality, linking it to:

• Economic opportunity
• Bodily autonomy
• Equal citizenship

9. Ginsburg's Judicial Philosophy: Measured Motions and Restraint

"The Justices generally follow, they do not lead, changes taking place elsewhere in society."

Judicial restraint. Ginsburg believed courts should generally defer to:

• Legislatures on most social and economic issues
• Precedent, unless clearly wrong or unworkable
• Gradual social change rather than abrupt judicial interventions

Exceptions. She saw a more active role for courts in:

• Protecting fundamental rights explicitly in the Constitution
• Safeguarding the political process
• Defending "discrete and insular minorities" from discrimination

Practical approach. This philosophy led Ginsburg to:

• Often seek narrow, consensus-building decisions
• Focus on dialogue between courts and legislatures
• Emphasize the importance of public acceptance of court decisions

10. The Future of the Supreme Court and American Democracy

"Hope springs eternal. I try to be as persuasive as I can in conference and in writing opinions. Sometimes I'm successful, sometimes not. But I will continue to try."

Institutional concerns. Ginsburg worried about:

• Increasing politicization of the Court
• Threats to judicial independence
• Erosion of norms around confirmation processes

Reasons for optimism. She found hope in:

• The Court's historical resilience
• Chief Justice Roberts' concern for the Court's legitimacy
• Engagement of young people in civic issues

Broader challenges. Ginsburg saw the Court's future as tied to:

• The health of American democracy
• Civic education and engagement
• Addressing economic and social inequalities

Long-term vision. She believed in the ongoing process of creating "a more perfect Union," seeing the Constitution as a living document capable of embracing an ever-wider circle of citizens and rights.

Last updated: September 29, 2024