Notorious RBG: The Life and Times of Ruth Bader Ginsburg

by Irin Carmon

After that first year, a classmate named Rhoda Isselbacher, who was pregnant during the exam period, informed the men she would use their bathroom whether they liked it or not.

Hazel Gerber, whose son would one day be one of RBG’s favorite clerks, once began a sentence in class with “I feel—” and her law professor cut in, “Miss Gerber: Women feel, men think.”

As Mr. Ginsburg told us, the Ruth in the letter is Ruth Bader Ginsburg, professor of law at Columbia and general counsel of the American Civil Liberties Union. Just think what else she might have accomplished had she enjoyed the benefits of a Harvard degree.

“Both men and women have one main role: that of being human beings.”

Who knew another world was possible for women—one in which they could work, fight back at unfair conditions, end a pregnancy if they felt they needed to? One where the government, pushed by activists, had begun to take an active interest in freeing men and women from prescribed gender roles?

So it was that ten years of my life that I devoted to litigating cases about—I don’t say women’s rights—I say the constitutional principle of the equal citizenship stature of men and women.” —RBG, 2010

“These distinctions have a common effect,” RBG said sternly. “They help keep woman in her place, a place inferior to that occupied by men in our society.”

“Sex, like race, is a visible, immutable characteristic bearing no necessary relationship to ability.”

Her time was almost up. RBG looked the justices in the eye and quoted Sarah Grimké, the abolitionist and advocate for women’s suffrage. “She spoke not elegantly, but with unmistakable clarity,” RBG said. “She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’”

That January day, on an empty stomach and with Brooklyn vowels still in her voice, RBG spoke for ten minutes without a single interruption from the justices. She had stunned them into silence.

She had read and been awed by Simone de Beauvoir’s The Second Sex.

I need to read this

A professor at Columbia, where she had begun lecturing, said he’d heard Rutgers School of Law was looking for a woman. After all, their only black professor had just moved on.

“They told me, ‘We can’t pay you as much as A., who has five children; you have a husband who earns a good salary,” RBG remembered, discreetly withholding names. “I asked if B., a bachelor, was also paid more, and was told, ‘yes.’”

The Civil Rights Act of 1964 had almost by accident banned employment discrimination on the basis of sex alongside race, despite many ball-and-chain jokes from congressmen.

(Representative Emanuel Celler joked that he usually had the last word in his house: “Yes, dear.”)

The universities themselves began to grudgingly make more space for women, especially after 1968, when the Johnson administration added sex discrimination to the list of sins that would imperil federal funding.

One popular textbook included the passage “Land, like woman, was meant to be possessed.” (The book was about land ownership; women were just the analogy.)

When she left the library, RBG knew this much: Her days of quiet acceptance were over. That included accepting Rutgers’s giving her the ladies’ discount. RBG helped the other female professors file a federal class-action pay-discrimination claim against the university. They won.

For decades, some feminists had said the solution was an equal rights amendment to the Constitution, which would read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” This amendment, known as the ERA, had been introduced in every session of Congress since 1923, but each time it had been held up in committee.

The final state needed to ratify the amendment was Virginia in 2020. However, the statute of limitations was up in 1979. Other states also revoked their ratifications, making a shocking grand total of 32 states as of today.

RBG wondered whether the Constitution already held the answer. Its preamble began with “We the people,” and women were people, even if they had been long prevented from living out their full destinies. Didn’t women deserve equal protection under the law, as the Fourteenth Amendment promised? The question was how to get at least five Supreme Court justices to see the Constitution as she did.

“There’s something you’ve got to read,” Marty exclaimed from the dining room, where he was working. “I don’t read tax cases,” RBG replied. She would be glad she read that one.

On the surface, the Moritz case was more small ball. He had been denied no more than six hundred dollars in expenses. There was no apparent glaring injustice to women. Marty and RBG could see beyond that. The government was senselessly denying a benefit to someone purely on the basis of gender. If the court said that was wrong, the precedent set would open the door to a broader recognition of gender equality.

This is why it is so important to NOT settle cases just for the money! The law wont change if we don't fight it!

Murray had been arguing as early as 1961 that the equal protection clause of the Fourteenth Amendment might on its own free women of legal constraints.

Although the legislature may distinguish between individuals on the basis of their need or ability, it is presumptively impermissible to distinguish on the basis of an unalterable identifying trait over which the individual has no control and for which he or she should not be disadvantaged by the law.

The distance to equal opportunity for women in the United States remains considerable in face of the pervasive social, cultural and legal roots of sex-based discrimination.

Prior decisions of this Court have contributed to the separate and unequal status of women in the United States. But the national conscience has been awakened to the sometimes subtle assignment of inferior status to women by the dominant male culture. . . .

. . . Laws which disable women from full participation in the political, business and economic arenas are often characterized as “protective” and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible.

The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.

The court had ruled for Sally Reed, the first time the Supreme Court ever struck down a law that treated men and women unequally. It was a big deal. But the decision’s reach was ambiguous. The court had laid down no broader rule. RBG’s work was only just beginning.

Other priorities, RBG wrote, would be “the right to be voluntarily sterilized”—something white, middle-class women had been discouraged from doing by their doctors—“and the right not to be involuntarily sterilized”—something women of color and those considered “mentally defective” had been subject to.

My coworkers daughter almost died from having so many cysts but the doctor still refused to remover her uterus, despite her wishes to do so.

Justice William Rehnquist was the lone dissenter. He told the Los Angeles Times, “My wife became resigned long ago to the idea that she married a male chauvinist pig, and my daughters never pay attention to anything I do.”

Interesting that he was aware of his opinion and how it made the women in his life feel.

“one doesn’t learn that lesson in a day. Generally, change in our society is incremental, I think. Real change, enduring change, happens one step at a time.” She would have to be patient. She would have to be strategic. And maybe a little deaf.

“She insisted that we attempt to develop the law one step at a time,” fellow ACLU lawyer Kathleen Peratis later said. “‘Present the court with the next logical step,’ she urged us, and then the next and then the next. ‘Don’t ask them to go too far too fast, or you’ll lose what you might have won.’ She often said, ‘It’s not time for that case.’ We usually followed her advice, and when we didn’t, we invariably lost.”

RBG knew people said “affirmative action” like it was an insult. “Others were of the view,” she later wrote, “that at last, the days of ‘negative action’ were over.”

Even more radically, RBG wanted the Supreme Court to recognize that women would never be equal if they could not control their reproductive lives, whether they wanted to be pregnant or not. That meant the right to an abortion, and it meant the right to be free of discrimination for staying pregnant.

She couldn’t help but notice the hypocrisy of a country that banned abortion except when it was convenient for the military.

Mindful of the arguments that had worked seven years earlier when the court struck down a contraception ban in Griswold v. Connecticut, the Roe and Doe briefs claimed abortion fell under a right to privacy, not equality.

The regulation singles out pregnancy, a physical condition unique to women involving a normally brief period of disability, as cause for immediate involuntary discharge. No other physical condition occasioning a period of temporary disability, whether affecting a man or a woman, is similarly treated.

Decisions of this Court that span a century have contributed to this anomaly: presumably well-meaning exaltation of woman’s unique role in bearing children has, in effect, restrained women from developing their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society.

If involuntary discharge of a woman solely on the ground of her pregnancy is not sex discrimination, nothing is!

The Supreme Court had chosen a path that led it away from where RBG had been hoping to coax the justices, and there seemed to be no turning back. If abortion was a private choice, would public insurance have to pay for it like any other medical procedure? No, said the Supreme Court seven years after Roe, when it upheld a ban on federal funding for abortion. The burden of “privacy” fell on poor women’s shoulders.

“The notion is that when the woman gets pregnant, she’s going to stay home and take care of her baby, everything’s wonderful, and she’s going to have a husband to support her,” RBG said in 1977. “Well, the kinds of plaintiffs that came up in these cases were women who had no husbands. They were the sole support of themselves and the child to come.” No matter their income, pregnant women were assumed to have taken themselves out of public life.

GE’s lawyer told the Supreme Court with a straight face that, after all, women didn’t have to be pregnant. If they wanted to work, GE’s attorney suggested, women now had legal access to what he called “an in-and-out noon-hour treatment.” He meant abortion.

Astonishingly, on December 7, 1976, a majority of the Supreme Court agreed. Rehnquist wrote for the majority that pregnancy was special, because unlike race or gender itself, it was often “voluntarily undertaken and desired.” The message was clear: Once you did the deed, you had to pay the price—that is, if you were a woman.

Justices William Brennan and Thurgood Marshall protested in their dissent that GE hadn’t left out any “so-called ‘voluntary’ disabilities including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commissi...

Her experience and clients had convinced her that anything that looked like a favor to women would be used against them.

In her speech, RBG allowed herself a little levity. “I understand some of the men come to HLS these days because”—here she paused—“what better place to find a suitable woman? “All-male retreats are on the wane,” RBG continued. “I expect, before very long, the old boys will find no escape at judges’ conference tables.” She was right.

“I think that men and women, shoulder to shoulder, will work together to make this a better world. Just as I don’t think that men are the superior sex, neither do I think women are. I think that it is great that we are beginning to use the talents of all of the people, in all walks of life, and that we no longer have the closed doors that we once had.” —RBG

“I am fearful, or suspicious, of generalizations about the way women or men are. . . . They cannot guide me reliably in making decisions about particular individuals.” —RBG

“People often ask me, ‘Well, did you always want to be a judge?’ My answer is it just wasn’t in the realm of the possible until Jimmy Carter became president and was determined to draw on the talent of all of the people, not just some of them.” —RBG, 2010