Articles Posted in Ruth Bader Ginsburg

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As the seven day mourning period of shiva has ended, I am moving to a remembrance of RBG. Over this thirty day period, I will high-light the case law, in which Ginsburg was an advocate or a jurist, that fundamentally changed the landscape of civil rights and constitutional law.

In this early period, Ginsburg worked as a law professor and a volunteer lawyer for the ACLU’s Women’s Rights Project.  She began to methodically build a body of law protecting against gender discrimination.   Part of her plan was to show that gender discrimination also hurt men.  She selected cases to show that gender discrimination was not purely a “women’s rights” issue, but also that it affected both genders unfairly.  One of her strategies at the Women’s Rights Project was to bring cases with male plaintiffs affected by gender discrimination laws before the male-dominated court.  In this case, the court was unanimous in support of Wiesenfeld’s claim to widower benefits. Judge Rehnquist concurred, but only because the regulation, as applied, was harmful to the child.

In reviewing this case, it is helpful to know that in the year prior, Ginsburg lost a gender discrimination case in Kahn vs. Shevin when the court upheld a state statute which conferred a tax benefit on widows, but not widowers, on the ground that the differentiation was reasonably designed to further the state policy of cushioning the financial impact of the death of a spouse upon the sex for which that loss imposes a disproportionate burden. The selection of cases brought to the court during the 1970s shows the methodical approach to creating favorable gender discrimination law.

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Struck vs. Secretary of Defense, 1971:

Captain Susan Struck of the United States Air Force brought an action for injunction and declaratory relief to prevent her “unlawful discharge from military service” when she became pregnant.  A regulation of the United States Air Force provided for the discharge of any officers who became pregnant.  Specifically, the regulation provided:

The commission of any woman officer will be terminated with the least practical delay when it is determined that one of the conditions in a or b below exist . . . a. pregnancy … (d) has given birth to a living child while in a commissioner officer status.

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(Photo by Alex Brandon / POOL / AFP) (Photo by ALEX BRANDON/POOL/AFP via Getty Images) 

Yesterday there was a photo of Ruth Bader Ginsburg’s casket outside the United States Supreme Court while a hundred of her law clerks, dressed all in black, stood at attention on the outside steps of the capital.  The stark photo and the hundred clerks posed below her casket reminded me the length and d depth of her extraordinary legal career.

In 1971, RBG was a Rutgers law professor.  In that capacity, she joined a case on gender discrimination that had been accepted for review by the United States Supreme Court.  That case was Reed vs. Reed .  Allen Derr, an attorney in Boise, Idaho brought the initial action.  He credits her with having been the principal brief writer.  Reed vs. Reed was a unanimous decision of the Supreme Court and it was the first case to declare a law that discriminates on the basis of sex to be unconstitutional.

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As I endeavor to post daily on some of the important case law which RBG (either as a jurist or an advocate) fashioned, I appreciate both the body of law that developed because of her and I mourn the passage of that era.  While I cannot predict what will happen in the next few weeks on the appointment of and potential confirmation of the next Supreme Court Justice, that we are moving into another, less generous, era seems inevitable.

Here is a case in which Ruth Bader Ginsburg filed an amicus brief on behalf of the ACLU, Women’s Rights Project.  She argued the case before the U.S. Supreme Court on January 17, 1973.  It was her first time arguing before the court.  As RBG would later explain her strategy on advocating for gender equality, “[g]enerally change in our society is incremental, I think.  Real change, enduring change, happens one step at a time.”  Her strategy at the ACLU was to present the court with the next logical step, and them the next, and then then next. (See Carmon, Knizhnik, The Notorious RBG, p. 93).

Frontiero vs. Richardson, 1973

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The Jewish mourning period is one month for family other than parents (which is a year).  Part of mourning is connection with others who come to you and share your grief and sit with you in your sorrow.  I wanted to share some of Ruth Bader Ginsburg’s opinions from her many years as a jurist as a way to collectively mourn her passing and celebrate her extraordinary life.

This is a rather long blog post because the opinion and the underlying legislation is so important that I wanted to do it justice.  As we approach an important election in the next few weeks, it merits reviewing why access to voting remains so critical for our democracy.  What Ruth Bader Ginsburg did in this dissent is remind us of that.

Shelby County, Alabama vs. Holder, June 25, 2013

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Supreme Court Justice, Ruth Bader Ginsburg (known affectionately of late as “RBG”), died in the evening on the beginning of Rosh Hashanah, the Jewish New Year.  In the Jewish tradition, family members “sit shiva” for seven days and seven nights by sitting on low stools and receiving visitors to comfort them.  There is a collective sorrow now which I feel most deeply among my female friends in all professions and occupations, but most achingly in the legal field.  Because if you had the temerity to branch into male-dominated professions – whether that was in the 1980s or 1990s – or even later, then you know something about the challenges of those times regarding gender equality.  RBG, this petite sprite of a woman, with her unyielding hot pen gave us the energy we needed and intellect we craved to be fierce in the world and to claim our space.

In her memory, I want to give you a sense of the work she did through the opinions she wrote.

Gonzalez vs. Carhart, 127 S.Ct. 1610 (2007)

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