Notorious RBG: The Life and Times of Ruth Bader Ginsburg

by Irin Carmon

“The arc of the moral universe is long, but it bends towards justice,” she said. But then she added her own words: “if there is a steadfast commitment to see the task through to completion.”

Treating men and women differently under the law, RBG told the justices, implied a “judgment of inferiority.” It told women their work and their families were less valuable. “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.”

“She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’”

In their brief, the Ginsburgs argued that the government couldn’t discriminate between men and women “when biological differences are not related to the activities in question.”

Legislative discrimination grounded on sex, for purposes unrelated to any biological difference between the sexes, ranks with legislative discrimination based on race, another congenital, unalterable trait of birth, and merits no greater judicial deference.

The widowers’ experiences showed, RBG said at the Goldfarb oral argument, that “gender discrimination is a two-edged sword.”

Widows were entitled to special breaks, said the justices, because of past discrimination.

“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.”

Sweeping judicial opinions, she told the audience, packed with many of her old New York friends, were counterproductive. Popular movements and legislatures had to first spur social change, or else there would be a backlash to the courts stepping in.

only the court had acted more slowly, RBG said, and cut down one state law at a time the way she had gotten them to do with the jury and benefit cases. The justices could have been persuaded to build an architecture of women’s equality that could house reproductive freedom. She said the very boldness of Roe, striking down all abortion bans until viability, had “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity,” she said simply. “It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

Once it happened all the time that I would say something and there was no response. And then a man would say the same thing and people would say, ‘Good idea.’” She laughed. “That happens much less today.”

People like David, I hope, will be role models for other men who may be fearful they won’t succeed in their profession if they spend time caring for their children, or are concerned they will be thought of as less than a man if family is of prime importance.”

his own decisions on abortion and gay rights had claimed that “our obligation is to define the liberty of all, not to mandate our own moral code.”

FROM RBG’S ORAL DISSENT IN LEDBETTER V. GOODYEAR TIRE AND RUBBER COMPANY* In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination. Today’s decision counsels: sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose such a less-than-fully-baked case. If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing too late. That situation cannot be what Congress intended when in Title VII it outlawed discrimination on the basis of race, color, religion, sex, or national origin in our nation’s workplaces. . . . Title VII was meant to govern real world employment practices and that world is what the court ignores today. Comparative pay information is not routinely communicated to employees. Instead it is often hidden from the employees’ view. Small initial discrepancies, even if the employee knows they exist, may not be seen as grounds for a federal case. An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves.

Ledbetter’s initial readiness to give her employer the benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her of a salary depressed because of her sex. Yet, as the court reads Title VII, each and every pay decision Ledbetter did not properly challenge wiped the slate clean. Never mind the cumulative effect of a series of decisions that together set her pay well below that of every male Area Manager. Knowingly carrying past pay discrimination forward must be treated as lawful. Ledbetter may not be compensated under Title VII for the lower pay she was in fact receiving when she complained to the EEOC. Notably, the same denial of relief would occur if Ledbetter encountered pay discrimination based on race, religion, age, national origin, or disability. This is not the first time this court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. In 1991, Congress passed a Civil Rights Act that effectively overruled several of this court’s similarly restrictive decisions, including one on which the court relies today. Today, the ball again lies in Congress’s court. . . . The legislature has cause to note and to correct this court’s parsimonious reading of Title VII.