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Justice Ginsburg Should Continue to Raise Her Vital Voice

Ruth Bader Ginsburg Official Scotus Portrait

The author of a new book on the rhetoric of women on the Supreme Court argues that the nation needs to continue hearing the voice of Ruth Bader Ginsburg from her hard-won position on the high court.

In a New Republic op/ed, Harvard Law Professor Randall Kennedy argues that Justice Ruth Bader Ginsburg should retire for fear that “if Justice Ginsburg departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.” He suggests retirement for Justice Breyer, too. I would be surprised if Justice Ginsburg retires at the end of this term. At age 79, she remains a vital voice on the court.

And the “good job” (as she described it) was not easily won. In my new book I argue that the struggle for equality for women in the law profession is inextricably tied to the Suffrage movement. Feminist crusaders Elizabeth Cady Stanton, Susan B. Anthony and Sojourner Truth have much in common with the first women lawyers, Myra Bradwell and Carrie B. Kilgore. They knew what it meant to fight merely to have the chance to participate in basic freedoms. And when they were begrudgingly ‘let in’ to schools, clubs or jobs, the field was usually far from level.

More than a half century later, the treatment of women at Harvard Law School illustrated that women were still unwanted in the male-centric field of law. A sampling of the most well-known women slighted: Hillary Clinton, who was told she need not even apply, and Patricia Schroeder and Elizabeth Dole have recounted their cruel treatment in interviews and speeches. Special “ladies’ days” would be reserved for women to ask questions in class, and repeatedly women students were asked to defend why they are taken the place of a man who would actually “use” his legal education.

Harvard’s dean refused to allow Ruth Bader Ginsburg to retain her status at Harvard while finishing her legal studies at Columbia due to her husband’s illness and relocation to New York, despite her high grades and Law Review membership. Nonetheless she graduated with a tie for first in her class at Columbia in 1959. In 2003 Elena Kagan became the first woman dean of Harvard Law School as it marked 50 years of graduating women, and in 2010 Kagan was named the fourth woman justice to the United States Supreme Court.

What a difference a half century makes.

By tracing the rhetoric of the four women on the Supreme Court, an optimistic, if slow shift is apparent: gender no longer takes center stage.

The experiences of Sandra Day O’Connor and Ruth Bader Ginsburg are tied to their generation: they struggled to overcome gender stereotypes to earn their legal educations and each experienced gender discrimination upon graduating from law school. Furthermore, they frequently wove the history of women in law through speeches that accentuated the progress made by women. In O’Connor’s most famous speech, Portia’s Progress, she offers a history lesson that emphasizes the “spunk, spirit, and wit” of the first women lawyers.

Ruth Bader Ginsburg’s life’s work and speeches are replete with a call for gender equality. Like O’Connor, she often quotes historical women, and concurred in 2001 with Sarah Grimke’s hopeful prediction that “Women, I fully expect, will—even in my lifetime—come to serve the cause of justice in numbers fully reflective of their talent.” In her own lifetime Ginsburg has become an historic figure in the fight for gender equality. O’Connor and Ginsburg experienced gender inequities and speak of them, but neither speak as victims. Instead, their rhetoric teaches about historic figures, pivotal gender cases, and they often weave in their own biographies.

In 2007 when Ruth Bader Ginsburg read two stinging dissents from the bench, to criticize the majority for opinions that she said jeopardize women’s rights, she was deliberately making a statement. In one case, in which the Supreme Court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now “differently composed than it was when we last considered a restrictive abortion regulation.” In Ledbetter v. Goodyear, speaking for the three other dissenting justices in the pay discrimination case, Justice Ginsburg’s voice was even and measured, and the message was potent and immediately impactful. In this utterance she was speaking to, as she put it, “convey a message I thought was so right and proper.” It was a point of view convincing to Congress if not to all of her colleagues on the bench. She described the court’s reading of the law as “parsimonious” and added, “In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” As a supervisor at a Goodyear Tire and Rubber plant in Gadsden, Alabama, Lilly Ledbetter’s salary was initially in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. The Lilly Ledbetter Fair Pay Act followed Justice Ginsburg’s reasoning and restored workers’ rights to challenge illegal wage discrimination in the federal courts.

Justice Ginsburg said of her court opinions, “Most often I do not announce. I write it out. But if I want to emphasize that the court not only got it wrong, but egregiously so, reading aloud a dissent can have an immediate objective.” Only six times previous to 2007, in 13 years on the court, did Justice Ginsburg read her dissent aloud, and never twice in one term. She told her audience at a lecture in 2007 that in the so-called ‘partial-birth’ abortion ruling, the court departed “from decades of precedent [and] placed its imprimatur on an anti-abortion measure that lacked an exception safeguarding a woman’s health.” Its ruling in the Ledbetter case made it “virtually impossible for victims of pay discrimination to mount a successful Title VII challenge.”

It would be almost 20 years after Ginsburg’s nomination that a third woman would be named to the Supreme Court, and in that time society’s response to women had changed. Sonia Sotomayor’s quick questioning on the bench at the start of her tenure as a justice and the lively repartee exhibited by Elena Kagan during her confirmation hearings are further proof of their confidence in the halls of power. They rose up more comfortably than O’Connor and Ginsburg, but they still endured ridicule and gender bias in the press, which from the early 1980s to 2009 had coarsened in its treatment of all subjects, especially women angling for powerful positions.

O’Connor and Ginsburg had to smooth the way, build awareness, enlighten, educate and advocate for gender equality. The shift is a hopeful sign for women in all areas, especially those once saturated with men. Needing to speak less of obstacles they have faced, they can now exercise a full range of rhetorical options.

Perhaps Justice Ginsburg is an optimist and has every expectation that President Obama will win re-election despite what appears now to be a close race. Moreover, she has fought hard for the privilege of serving on the Supreme Court and is unlikely to step down for cautious political practicality. I hope Justice Ginsburg continues to speak fully and for a long time from her seat on the highest court in the land.

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