Teaching About the Feminist Rights Revolution: Ruth Bader Ginsburg as “The Thurgood Marshall of Women’s Rights”

Robert Cohen and Laura J. Dull

Most U.S. history textbooks mention Ruth Bader Ginsburg only in her current role as a US Supreme Court Justice. Of course, Ginsburg has made history writing Supreme Court decisions, as in United States v. Virginia (1996), which struck down the exclusion of women students from the Virginia Military Institute. More recently Ginsburg has written powerful dissents, including Burwell v. Hobby Lobby (2014), a decision that eroded the separation of church and state, and Shelby County v. Holder (2013), a ruling that undermined the Voting Rights Act. Justice Ginsburg’s fiery dissents have been so memorable and frequent as the Court has moved to the right that she has become an internet heroine, idolized on-line in hip-hop lingo as “Notorious RBG,” renowned for her eloquence and tough-minded intellectualism as the Court’s Great Dissenter in the service of equal rights and justice.
 
But what textbooks miss is that long before becoming a Justice, Ginsburg led a historic women’s rights offensive in the courts. In this article and our interview with Justice Ginsburg, we hope to encourage teachers to teach about the RBG the textbooks neglect, the women’s rights legal champion, as a way to understand both Ginsburg and the courtroom front in the feminist movement’s struggle for gender equity. We suggest that a comparison of Ginsburg with the great civil rights courtroom crusader, Thurgood Marshall, would help students link Ginsburg, and the overlooked history of her work for women’s rights, to history already taught in most schools: Marshall and his most famous court victory, Brown v. Board of Education (1954).
 
In justifying Ginsburg’s nomination to the Supreme Court in 1993, President Bill Clinton invoked Marshall as he praised the landmark cases Ginsburg argued before the high court as founder and leader of the American Civil Liberties Union’s (ACLU) Women’s Rights Project. Clinton explained, “Many admirers of her work say that she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans. I can think of no greater compliment to bestow on an American lawyer.”[1] This comparison has considerable historical veracity since Ginsburg in important respects followed in Marshall’s footsteps. Ginsburg, like Marshall, led a key legal advocacy group whose court victories helped fuel the 20th century Rights Revolution (Marshall in the 1930s to 1950s for the NAACP and Ginsburg in the 1970s for the ACLU). Both became such iconic figures among progressive legal advocates that they would be chosen for the Supreme Court by liberal presidents. Marshall, the great-grandson of slaves, barred from attending the law school close to his home at the segregated University of Maryland, had firsthand experience with the racism he fought so bravely to end. As a lawyer, Marshall “brandished the Constitution the way Moses brandished the Ten Commandments.”[2] Like Marshall, Ginsburg felt the sting of discrimination, particularly as a woman lawyer, and used the Constitution to steadily erode longstanding gender inequities.
 

Biography illuminates history 

 
Even as they witnessed the historic presidential candidacy of Hillary Clinton, young people are often unaware of how much things have changed for women. Ginsburg’s biography illuminates the rampant sexist discrimination that contributed to her desire to use the courts to end such discrimination. When Ginsburg entered Harvard Law School in 1956, it had only recently begun to admit women. Harvard’s dean made clear his beliefs about women students, asking Ginsburg and other female students how they could justify occupying a man’s space in law school. In fact, mid-20th century America was so pervaded by sexism that two of its best legal talents, later the first and second woman on the US Supreme Court, came out of top law schools unable to find employment as law firms. After Ginsburg graduated, no law firm would offer her employment as an attorney despite her brilliant academic record. Sandra Day O’Connor, a talented graduate of Stanford University, was also denied work as an attorney—one firm even advised her to seek work as a legal secretary.[3]
 
This gender history complicates our understanding of the early and mid-1960s as an era of liberal ascendance exemplified in the Warren Court’s decisions on race, church-state separation, free speech, and rights of the accused. The Warren Court’s record on gender points not to liberalism but conservatism, as in the Hoyt decision (1961), a setback for the right of the accused to have women serve on juries. The Warren Court’s justices, Ginsburg recalls, did not regard “discrimination against women as discrimination at all…They didn’t understand barriers that women faced as discriminatory. They really bought into the protective notion that if there are [gender] distinctions—[eg] women don’t have to serve on juries—then it was for their benefit, for their protection.”[4] This conservatism on the part of an otherwise liberal Warren Court persisted, in Ginsburg’s view, because “society was not yet prepared to listen” to the gender equality advocated by second wave feminism in the early and mid-1960s [see interview]. Not the Warren Court but the rightward-drifting Burger Court in the 1970s gave Ginsburg and the women’s rights movement their first great legal victories. This change came because the women’s movement had succeeded in raising Americans’ consciousness about sexism, enabling the court to begin ruling in favor of women’s rights in Ginsburg’s groundbreaking cases and Roe v Wade (1973).

Ruth Bader Ginsburg and Thurgood Marshall

 
A comparison of Ruth Bader Ginsburg with Thurgood Marshall enables students to see that social change comes not just via elections and demonstrations but also from battles waged in court. The road to Brown was paved by decades of civil rights cases argued by Thurgood Marshall of the NAACP Legal Defense Fund. As Marshall had done for civil rights as an NAACP attorney, Ginsburg used her legal talent to lead the ACLU’s Women’s Rights Project to win historic court victories for gender equity from 1972-1980.
 
Being called the Thurgood Marshall of the women’s movement resonated with Ginsburg since she admired and emulated his work as a legal strategist. She also reminds us that Marshall heroically endured threats she never faced: “He was my model as a lawyer … I took a step-by-step, incremental approach, well, that’s what Marshall did. He didn’t come to the Court on day one and say, ‘End apartheid in America.’ He started with law schools and universities, and until he had those building blocks, he didn’t ask the Court to end separate-but-equal. Of course, there was a huge difference between the litigation for gender equality in the ’70s and the civil rights struggles in the ’50s and ’60s. The difference between Thurgood Marshall and me, most notably, is that my life was never in danger. His was. He would go to a Southern town to defend people and he literally didn’t know whether he would be alive at the end of the day.[5]
 
Because “there wasn’t a great understanding of gender discrimination,” Ginsburg’s work also involved a different approach than Marshall’s: “People knew that race discrimination was an odious thing, but there were many who thought that all the gender-based differentials in the law operated benignly in women’s favor. So my objective was to take the Court step by step to the realization, in Justice Brennan’s words, that the pedestal on which some thought women were standing all too often turned out to be a cage.”[6]
 
Sandra Day O’Connor was not appointed as first female Supreme Court Justice until 1981. So in arguing women’s right cases for the ACLU, Ginsburg had to convince nine male justices to transcend longstanding gender stereotypes that “men earned the family’s bread and women tend to the home and children.”[7] In deploying her incremental approach, Ginsburg drew upon Marshall’s strategy of using the equal protection clause of the 14th Amendment to confront discrimination. Her victory as an ACLU lawyer in Reed v. Reed (1971) was the first time that the Supreme Court agreed that the 14th Amendment applied to women, and the justices struck down an Idaho law favoring male over female parents in assigning administrators of estates. Ginsburg explained that the Reed case “was tremendously significant in that it represented the first time ever in the history of the country that the Supreme Court had said yes to a woman; the first time the Court recognized women as victims of discrimination.”[8]
 
Ginsburg and the ACLU strategically chose to argue men’s cases just as much as women’s to demonstrate how sex discrimination hurts everyone, not just women. For example, in Frontiero (1973), Ginsburg convinced the court to overturn a law requiring the military policy to provide housing allowances for married male officers, but not married female officers. Also, wives of male officers had access to medical and dental care at military posts. Husbands of female officers did not. Similarly, in Weinberger (1975), the Court agreed to Ginsburg’s arguments that social security survivors’ benefits should be extended to widowers. By the time Hibbs was argued in 2003 and Ginsburg was on the Supreme Court, even conservative Chief Justice William Rehnquist recognized that men just as much as women could play the care-giving role.
 
Asking students to decide for themselves whether Ginsburg should be considered the Thurgood Marshall of women’s rights provides a way for them to dig into each Justice’s cases and strategies to make their arguments. Other questions related to the two great jurists have the potential to yield exciting historical discussions:
 
• Do the courts tend to be out in front on social change? Or do they lag behind, as Ginsburg implies in her interview?
• Why did Marshall’s historic court victories for racial equality come decades before Ginsburg’s victories for gender equality?
• Was Marshall’s work for the NAACP, and Ginsburg’s work for the ACLU, more revolutionary than anything they did as Supreme Court justices?

Conclusion

 
How do we explain Ginsburg’s iconic status as internet sensation and liberal folk hero? This would be a lively subject to discuss with students since it is the young who have given us Notorious RBG, the first justice with rock star appeal—complete with laudatory music videos and RBG costumes. This is likely connected to the bold way Ginsburg, despite her advanced age and diminutive stature, has stood up to the Court’s right-wing members, reading tough-minded dissents that are inspirational to her admirers, especially the young who have few public figures speaking so forcefully for their values.
 
To have a woman who in the sexist past would be stereotyped as a little old lady defying powerful male jurists in the nation is dazzling. In fact, as the senior woman on the US Supreme Court, Ginsburg is the opposite of “little,” she is one of the most powerful woman in the United States. RBG on the Court and Notorious RGB on the web today are smashing stereotypes of gender and age as surely as Ginsburg smashed sexist stereotyping to win her historic court victories in the 1970s.
 
When women’s rights cases are taught in schools, teachers tend to focus on the still-controversial case, Roe v. Wade. But for Linda Kerber, author of No Constitutional Right to be Ladies, this is not enough. Like Marshall and his civil rights cases, RBG and her key court victories need to be taught, as they force “us to engage in some of the largest ethical and constitutional issues, and set the relationship of women and the law squarely in the core of American political choices. The cries of the playground – ‘That’s fair!’ ‘That’s not fair!’ – echo throughout our adult lives. Perhaps if we studied Frontiero with as much attention as we study Brown, we would be better equipped to address the inequalities which challenge us, now and always.”[9]
 

Authors

Robert Cohen is professor of history and social studies at NYU, whose most recent books are The Essential Mario Savio: Speeches and Writings That Changed America, and Rebellion in Black and White Southern Student Activism in the 1960s (2014, co-edited by David J. Snyder).
 
Laura J. Dull is a professor in the Teaching and Learning Department at SUNY New Paltz. Recent publications include a co-written book called Teaching Recent Global History (2014). Professor Dull is currently working on an analysis of how the history of slavery is told in the textbooks of several other nations.
 

Notes

 
[2]Neil A. Lewis, “A Slave’s Great-Grandson Who used Law to Lead the Rights Revolution,” New York Times (June 28, 1991), para. 9.
 
[3]Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (New York: Harper, 2015), 19.
 
[4]Jeffrey Toobin, “Heavyweight: How Ruth Bader Ginsburg has Moved the Court,” The New Yorker (March 11, 2013), para. 13.
 
[5]Jeffrey Rosen, “Ruth Bader Ginsburg is an American Hero,” New Republic (Sept. 28, 2014), para. 61.
 
[6]Ibid., para. 67
 
[7]Ibid., para. 63
 
[8]Association of Women in Science, “Women and the Law: A Dialogue with Ruth Bader Ginsburg,” Women’s Studies Newsletter 5, no. 4 (Fall 1977): 25; for fuller summaries of the cases discussed here, the cases below.
 
[9]Email correspondence (Sept. 21, 2017).
 

Supplemental Material 

I. Full text of Interview with Ruth Bader Ginsburg

Advice for social studies teachers on teaching about Ruth Bader Ginsburg’s advocacy for gender equity when she led the ACLU Women’s Rights Project, from an interview with Justice Ginsburg by Robert Cohen, Dec. 17, 2015 at the NY Historical Society

Robert Cohen In U.S. History courses, I’ve noticed that there is no mention of the ACLU Women’s Rights Project or of the historic Supreme Court victories for gender equality that it won under your leadership. One of our goals today in our teacher education panel is to get this history taught in the schools. What would you want teachers to emphasize about the ACLU Women’s Rights Project, your leadership in this struggle, and the court cases that you argued for women’s rights [as a lawyer]? And which of the course cases do you think would be most important, interesting, and teachable for high school students?

Justice Ruther Bader Ginsburg Well first I would recommend a book by the Supreme Court Historical Society, Supreme Court Decisions and Women’s Rights (Cushman, 2010). It covers all the leading cases from the 1970s. I contributed some things to it, as did Justice O’Connor. It’s very readable and I think it would be ideal for high school students.

As for the cases I’d select, I would choose Reed v. Reed about Sally Reed from Boise, Idaho whose son died under tragic circumstances. She wanted to be appointed administrator of his estate but was told by the probate judge “We’re sorry, but the law says that between persons equally entitled to administer a deceased youth’s estate, males must be preferred to females.” As her ex-husband had applied to be administrator, so he got the appointment. And so that’s a good example of discrimination adversely affecting a woman.

The other case I’d pick is Weinberger v Wiesenfeld. [The case was] about a man, Stephen Wiesenfeld, whose wife Paula was a school teacher, who had a very healthy pregnancy and was teaching into the ninth month. But when she went to the hospital to give birth, the doctor came out and told Stephen “you have a healthy baby boy but your wife died of an embolism.” So he vowed that he would take personal care of the child and work only part time until the child was in school full time. He went to the Social Security office to ask for what he thought were child care benefits and was told that these are mother’s benefits not available to fathers. In that case, we made the point that the discrimination starts with the woman as wage earner because her Social Security taxes don’t get for her family the same benefits that a man’s taxes will get for his family. [The case also involved] discrimination against the male as parent since he wouldn’t even have the opportunity to be the primary care-taker of his child. And the argument that appealed to my later Chief [Justice], then Justice [William] Rehnquist, was that the baby should have the opportunity for the care of a parent only if the parent is female and not male. So that case is a good illustration of how these rigid gender lines in the law hurt everyone – the woman, the man, and the children.

RC And what about of your role in these cases and the legal struggle for gender equity? What would you like teachers to highlight?

Justice RBG I would say I was fantastically lucky to be born when I was and to have legal training. Because women for generations had been saying the same things that we said in the [19]70s, but society [prior to the ’70s] was not yet prepared to listen. In the late ‘60s things began to change and that change accelerated throughout that decade of the ‘70s. On the brief in the turning point case of Reed v. Reed, we put the names of two women, [feminist attorneys] Dorothy Kenyon and Pauli Murray, women who had been saying the same things that we were saying, but a little too soon. The courts are seldom out in front of social change. What happened in the ‘70s was that the courts were catching up to a change that had already occurred in society.

RC Because you’ve been compared to Thurgood Marshall, you could also draw an analogy of Pauli Murray’s influence on you with Charles Hamilton Houston [Marshall’s teacher, law school dean, and predecessor in leading the NAACP racial equality crusade in the courts] influence on Marshall. That earlier generation was fighting the same battles but society wasn’t ready yet…They were the building blocks, but were not there [a generation later] at those moment of triumph with Brown or with your decisions.

Justice RBG Yes. Marshall was very careful to have the building blocks in place before he argued Brown.

II. Summaries of Key ACLU and Supreme Court Cases:

Adapted from materials found on the Oyez website hosted by IIT Chicago-Kent College of Law, https://www.oyez.org/

Significant cases as ACLU Women’s Rights Project Litigator: Between 1972 and 1980, Ginsburg filed briefs in 9 major Supreme Court sex-discrimination cases. She argued 6 of these and won 5. What follows are summaries of three of her most important gender rights victories that she won as a legal advocate.

Frontiero v. Richardson, 411 U.S. 677 (1973)

Sharron Frontiero, a lieutenant in the United States Air Force, sought a dependent’s allowance for her husband. Federal law provided that the wives of members of the military automatically became dependents. Husbands of female members of the military, however, were not accepted as dependents unless they were dependent on their wives for over one-half of their support.

Frontiero’s request for dependent status for her husband was turned down and the case went to the Supreme Court: Did a federal law, requiring different qualification criteria for male and female military spousal dependency, unconstitutionally discriminate against women thereby violating the Fifth Amendment’s Due Process Clause? The Court held that the statute clearly commanded “dissimilar treatment for men and women who are similarly situated,” violating the Due Process Clause.

In her (winning) argument before the court, Ginsburg stated: “Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproven assumptions, concerning an individual’s potential to perform or contribute to society.”

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)

After his wife died in childbirth, Stephen Wiesenfeld applied for social security survivors’ benefits. While his son was granted benefits, Wiesenfeld was told he was not eligible, as the benefits could only be given to widows, not widowers. Wiesenfeld sought a declaration that this provision was unconstitutional as men and women were treated differently. The Supreme Court unanimously agreed that this distinction constituted discrimination and was therefore unconstitutional.

In her oral argument, Ginsburg said, “There could not be a clearer case than this one of the double-edged sword in operation of differential treatment accorded similarly situated persons based grossly and solely on gender. Paula Wiesenfeld, in fact the principal wage earner, is treated as though her use of work is of only secondary value to her family. Steven Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with the father willing and able to care for him personally, is treated as not entitled to the personal care of his sole surviving parent…In practical effect, laws of this quality help to keep women not on the pedestal but in a cage.”

Reed v. Reed, 404 U.S. 71 (1971)

The Idaho Probate Code specified that “males must be preferred to females” in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son’s estate (the Reeds were separated). According to the Probate Code, Cecil was appointed administrator. Sally challenged the law in court: Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment?

In a unanimous decision, the all-male Court held that the law’s dissimilar treatment of men and women was unconstitutional. The Court argued that “[t]o give a mandatory preference to members of either sex over members of the other…is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment…The choice in this context may not lawfully be mandated solely on the basis of sex.”

In a 1975 interview, Ginsburg explained why this case was so significant: “Almost anyone would recognize that the statute [Idaho Probate Code] was discriminatory, and you might think the issue too obvious to yield a major precedent. However, [the case] was tremendously significant in that it represented the first time ever in the history of the country that the Supreme Court had said yes to a woman; the first time the Court recognized women as victims of discrimination.”

Significant cases as Supreme Court Justice: Ruth Bader Ginsburg was nominated by President Clinton and sworn into office on August 10, 1993. She is the second female justice.

United States v. Virginia, 518 US 515 (1996)

The Virginia Military Institute (VMI) boasted a proud tradition as Virginia’s only exclusively male public undergraduate higher learning institution. The United States brought suit against VMI alleging that the school’s male-only admissions policy violated the Fourteenth Amendment’s equal protection clause. After the Fourth Circuit found the policy to be unconstitutional, Virginia proposed to create a Virginia Women’s Institute for Leadership (VWIL) as a parallel program for women. The United States disagreed, asking the Supreme Court to decide: Is Virginia’s creation of a women’s-only academy comparable to a male-only academy, thereby satisfying the Equal Protection Clause?

In a 7-to-1 decision, the Court held that VMI’s male-only admissions policy failed to meet the requirements of the equal protection clause as the VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets.

In writing the majority opinion, Ginsburg wrote: “Sex classifications may be used to compensate women for particular economic disabilities [they have] suffered, to promot[e] equal employment opportunity, [and] to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

Nevada Department of Human Resources v. Hibbs, 538 US 721 (2003)

William Hibbs sought leave to care for his wife, badly injured in a car accident, under the Family and Medical Leave Act (FMLA) of 1993. The FMLA entitles an eligible employee to take up to 12 weeks of unpaid leave to care for the employee’s ill or injured spouse. The Nevada Department of Human Resources granted Hibbs’s request and, after he had exhausted that leave, said he must report to work by a certain date. When Hibbs failed to do so, he was fired. As the FMLA allows action “against any employer” that “denied the exercise of” FMLA rights, Hibbs sued. The Supreme Court had to decide: May an individual sue a State for damages in federal court for violation of the FMLA?

In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that State employees may recover money damages in federal court in the event of the State’s failure to comply with the FMLA’s family-care provision. Rehnquist’s explanation of the ruling reflects the influence of Justice Ginsburg: “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men…These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to assume the role of primary caregiver.”

Ledbetter v. Goodyear Tire and Rubber Company, 550 US 618 (2007)

Over her nineteen-year career at Goodyear Tire, Lilly Ledbetter was consistently given low raises relative to other employees. She did not know this, however, until a colleague left her an anonymous note stating that she was earning significantly less money than similarly situated men. Ledbetter sued Goodyear for gender discrimination in violation of Title VII of the Civil Rights Act of 1964. After a jury found for Ledbetter, Goodyear appealed, citing a Title VII provision that requires discrimination complaints to be made within 180 days of the employer’s discriminatory conduct. The case was taken up by the Supreme Court: Can a plaintiff bring a salary discrimination suit when the disparate pay is received during the 180-day statutory limitations period, but is the result of pay decisions that occurred outside the limitations period?

By a 5-4 vote, the Court ruled that Ledbetter’s claim was time-barred by the limitations period. Justice Samuel Alito’s opinion held that “current effects alone cannot breathe life into prior, uncharged discrimination.” For a timely claim, Ledbetter would have needed to file within 180 days of a discriminatory salary decision.

In an unusual move, Justice Ginsburg delivered a dissent from the bench: “The realities of the workplace reveal why [pay discrimination] does not fit within the category of singular discrete acts ‘easy to identify.’ A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment…When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual for management to decline to publish employee pay levels, or for employees to keep private their own salaries. Tellingly, as the record in this case bears out, Goodyear kept salaries confidential.” Ginsburg ended by stating that “the ball is in Congress’ court” to undo the damage. Her call led to The Lilly Ledbetter Fair Pay Act of 2009, the first bill signed into law by President Barack Obama.

Recent Cases

RBG continues her fight against gender discrimination. In Sessions v. Morales-Santana (2017), the plaintiff challenged part of the Immigration and Nationality Act which required a longer residency for unwed citizen fathers than for unwed citizen mothers in order to transfer citizenship to children born abroad. As RBG wrote in the majority opinion, “Hardly gender neutral, that assumption [in the law that mothers are more attached to children, so require less time] conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children…Lump characterization of that kind, however, no longer passes equal protection inspection.” In Whole Women’s Health v. Hellerstedt (2016), RBG joined with four of her colleagues to strike down Texas abortion laws that placed a “substantial burden” on women accessing legal abortions.

References

Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015).

Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU’s Women’s Rights Project (2004).

Clare Cushman, Supreme Court Decisions and Women’s Rights: Milestones to Equality (2010)

Scott Dodson, ed., The Legacy of Ruth Bader Ginsburg (2015).

Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (2015).

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999).