Remembering RBG : An Inspiring Legacy

It was March 1993 when Justice Byron White of the Supreme Court of the United States (SCOTUS) announced his retirement at the end of the Court's term in June. Judge Ginsburg, then a judge of the US Court of Appeals for the DC Circuit, was on Clinton's list of possible candidates. She was nominated for Court of Appeals by President Jimmy Carter in 1980.

Ginsburg was picked only after all other dominoes, including federal Judge Stephen Breyer, who is currently serving as Associate Justice, recalls Ron Klain, who oversaw judicial nominations in the Clinton administration.

Finally, in June 1993, Clinton announced that he chose Judge Ginsburg. Ginsburg' progressive outlook, balanced opinion and pioneering work on behalf of women of America were the reasons why Clinton chose her. He further asserted his faith in Ginsburg and perceived her as a consensus-builder at SCOTUS. After four days of the hearing, the Senate Judiciary Committee unanimously, with 18-0 votes, endorsed Judge Ginsburg's nomination, which was confirmed by the Senate by a vote of 96-3. The opening of SCOTUS' term in 1993 October was marked by Justice Ginsburg taking her seat on the bench as the first Jewish woman and only second woman on SCOTUS.

Education, ACLU and more

Born in 1933, Ginsburg was interested in writing, law and, more importantly, peace and tolerance. The first-ever piece of writing by Ginsburg was published in her school newspaper when she was barely thirteen years old. A thirteen-year-old in the late 1940s wrote about the four essential documents which benefited humanity since the beginning of time. These four were The Ten Commandments, Magna Carta, The Bill of Rights and the US declaration of independence. Ginsburg wrote this right after Eleanor Roosevelt became chairperson of UNHCR. Consequently, a fifth important document was also named in the editorial, i.e. United Nations Charter. She wrote-

"And now we have a fifth great document, The Charter of the United Nations. Its purpose and principles are to maintain international peace and security, to practice tolerance and to suppress any acts of aggression or other breaches of peace." (emphasis added)

Source: My Own Words- Ruth Bader Ginsburg with Mary Hartnett and Wendy W. Williams.

She went on to take a Bachelor of Arts degree from Cornell University. While at Cornell, she met Martin Ginsburg, her partner. Ginsburg had to shift from Harvard Law School to Columbia Law School as Martin took a job in New York.

In 1962, Ginsburg went to Sweden to work on a research project on the rules of civil procedure in Europe and went to co-author a book in Swedish with Swedish jurist Anders Bruzelius. Little did she know the impact that this trip was going to have on her understanding of gender equality and later in the lives of the women of the USA. She found that women were treated much better in Sweden than in the USA, especially in areas where she had to fight for in her life. She noticed the subtle and non-subtle ways in which the women were treated as the inferior gender in the USA. This influenced her decision to dedicate her legal career as a lawyer advocating for gender equality. The year 1972 was marked by two crucial events in her life. First, Ginsburg became the first woman tenured professor at Columbia Law School and second, she co-founded the American Civil Liberties Union.

With ACLU, her journey of representing gender discrimination cases, not only for women going through the same but also men. She adopted an ingenious approach tailored for that time and its conservative thought-process wherein she showed how men faced gender discrimination by the law and then went on to draw an analogy between discriminatory treatment faced by men and women as well. In Moritz v. Commissioner, Ginsburg's first case against gender discrimination, she argued that a man is entitled to get caregiver deduction as well, and in Weinberger v. Wiesenfeld., she challenged a provision of the Social security of 1935 which permitted widows to avail special benefits and not widowers and consequently, the provision was held to be against the provisions of the constitution.

Judging for Justice

During her 27-year tenure as the first Jewish woman justice and the second woman justice of the SCOTUS, Ginsburg gave multiple remarkable judgments, and some of them are-

United States v. Virginia- In this case, Ginsburg authored the Court's opinion, which struck down a highly regarded public institute, Virginia Military Institute's all male-only admissions policy. It was her first opportunity to voice her understanding of gender equality as a SCOTUS justice. In addition to resolving the dispute over VMI's admissions policy, she laid down a principle, a precedent, to apply the equality clause to the ground level cases. Kelly Kolleen Sullivan, a graduate of the VMI, writes a beautiful tribute thanking her for this judgment and highlighting its impact on her life. Later, in 2007 Justice SB Sinha of the Supreme Court of India relied on this case in Anuj Garg v Hotel Association.

Olmstead v. L.C- Ginsburg didn't only work for women's rights but equality as a principle. In Olmstead, she wrote the majority opinion, which held that people with mental illness could be covered under the Americans with Disabilities Act and must not be isolated, unnecessarily confined in institutions and must be allowed to participate in day-to-day activities like any other person. This case didn't only recognize the rights of the people battling mental illnesses but also went a long way in breaking stereotypes surrounding such issues.

Whole Woman's Health v. Hellerstedt- Ginsburg formed a part of the majority in this case, which struck down the restrictive Texas law on abortion. She wrote a sharp critique of the law highlighting how the law would make abortion extremely inaccessible and would ultimately narrow the scope of abortion rights in the state. Ginsburg wrote-

"Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions.' ... When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners. ... [L]aws like H. B. 2 that 'do little or nothing for health, but rather strew impediments to abortion' cannot survive judicial inspection."

RBG- The Dissenter

If not more, equally important are the dissenting opinions given by Justice Ginsburg. She also had a dissent collar which in her own words looked fitting for dissent. The significance of the collar can be deduced by what Irin Carmon said about it- "When the jabot with scalloped glass beads glitters flat against the top of Ginsburg's black robe, it's bad news for liberals".

Lilly Ledbetter v Goodyear Tire was a crucial dissent by Justice Ginsburg. Ledbetter sued Goodyear for a pay gap, where the majority ruled that Ledbetter filed the suit too late. During the bench announcement, she criticized the majority for being 'indifferent to, the insidious way in which women can be victims of pay discrimination.' She urged Congress to take corrective steps, for the ball was in their court now. Fortunately, Congress did act on it.

Equally well reasoned were her dissents in cases involving racial discrimination. For instance, states with a history of curtailing the voting rights of African Americans were required to follow a preclearance procedure under the Voting Rights Act, 1965. When challenged in Shelby County v Holder, the majority held it as unconstitutional as current conditions were significantly improved. In her dissenting opinion, Justice Ginsburg upheld the provision and wrote (page 33 of the dissenting opinion)-

"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

A glance at Justice Ginsburg's career reveals many more equally essential dissents, including Burwell v Hobby Lobby Stores, where the majority struck down the contraceptive mandate under the Affordable Care Act on the ground that a privately held corporation have religious freedom under the Religious Freedom Restoration Act, 1993 and ACA's mandate substantially burdened that exercise of freedom. Whereas Justice Ginsburg, in her dissent, held the mandate to be least restrictive in nature and argued that the majority verdict would jeopardize the health of women.

Even her dissents have shaped Indian jurisprudence. Her minority opinion in Gratz v Bollinger, where Ginsburg famously remarked that the US Constitution was both colours blind and colour conscious (page 59), distinguished policies of oppression from measures facilitating de facto equality was referred to by Justice SB Sinha in Saurabh Chaudhari v Union of India.

In the most important case of the 21st century, K.S. Puttaswamy v Union of India, the lead author Justice Chandrachud while analysing privacy from a comparative lens, cited (Part K) Justice Ginsburg's minority opinion in Minnesota v Carter. More recently, in March 2021, in Lt. Col. Nitisha v Union of India, the SC held indirect discrimination and structural discrimination being violative of equality. Justice Chandrachud started this judgment by quoting Justice Ginsburg's famous quote, "I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks". This was perhaps one of the best ways to honour the legacy.

Conclusion

Soli Sorabjee used to say- "we are all in god's departure lounge, waiting for our flights to be called." Justice Ginsburg's flight was called on 18^th September 2020, but she dedicated that waiting period in pursuit of justice. She wanted to be remembered as someone who used her talent to do her job to the best of her abilities. We remember her for much more. We remember Ginsburg for her influence on gender equality in the USA and her contribution to the understanding of gender equality all over the world. We remember her for unfettered courage to disagree, to dissent and to stand with and for her opinions, inspiring millions of girls to voice their opinions. Most importantly, we remember her for her kind, selfless, influential and determined nature and her ability to be friends with people with whom she disagreed. It is important to remind ourselves of her commitment to gender justice with a hope that sooner or later, the shackles of patriarchy will succumb to the quest for equality and justice.