Monday, September 21, 2020

On Justice Ginsburg

A photograph of Justice Ginsburg with other members of the Harvard Law Review. She was the first female member of the Law Review, and one of only nine women in her Harvard Law School class of over 500 students ( link, if needed). Due to family reasons, she ultimately moved to New York City and completed her 3L year as a graduate of Columbia Law School instead.

I was devastated to learn of Supreme Court Justice Ruth Bader Ginsburg's passing last Friday. Justice Ginsburg was a trailblazer in the profession, entering it in a time when women were, by and large, unwelcome. 

Three years ago, in July 2017, I wrote a blog entry discussing some of Justice Ginsburg's personal writing, focusing mainly on her opinion piece about her "Advice for Living," which she wrote for the New York Times in October 2016 ( link, if needed). In that entry, I made sure to emphasize just how extraordinary she was, just how extreme the obstacles were against her and against all women who sought to become attorneys in her day:
I had to search hard for a readily accessible online citation for how things were: "Upon graduation from Columbia Law School with top honors in 1959, [Justice Ginsburg] received no job offer from any law firm in New York City, presumably because white shoe law firms were aghast that a woman, a mother and a Jew would dare think she was qualified for the job." She has also written that, back then, law firms simply "would engage no women" as a matter of absolute policy. [See Justice Ruth Bader Ginsburg, The Changing Complexion of Harvard Law School, 27 Harv. Women's L.J. 303, 307 (2004).] 
So I don't think it's an exaggeration to say that all women attorneys practicing today - regardless of political views or preferred judicial philosophy - should reasonably consider Justice Ginsburg to be a role model, someone who helped make it possible for us to participate fully in the profession today.  We are all, in a way, part of her legacy to the profession. While the legal profession remains an extremely challenging one for women and minorities to navigate, it has come a very long way since the early days of Justice Ginsburg's career. 

By now, you've probably also seen that, long before she was appointed to the Supreme Court, Justice Ginsburg was a brilliant attorney. In that time, she argued several key cases before the Supreme Court that developed our gender discrimination jurisprudence under the equal protection clause of the United States Constitution, practically from the ground up. 

One nuance that isn't always fully headlined in non-lawyer discussions about gender discrimination law is that - based on their facts - the landmark cases that Justice Ginsburg argued also made clear that women's rights are everybody's rights. Just as the law must not restrict the rights of women based on antiquated stereotypes about a woman's "proper" role in the home or in society, the law is also not to burden men based on those same stereotypes: husbands of those serving in the United States military should be entitled to the same dependent spouses' benefits as the wives of those in the military, Frontiero v. Richardson, 411 U.S. 677 (1973); widowers should be entitled to the same Social Security survivors' benefits as widows, Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); and boys should be entitled to purchase alcoholic "near-beer" beverages at the same age as girls, Craig v. Boren, 429 U.S. 190 (1976).

After hearing about Justice Ginsburg's passing last Friday evening, I am currently staying off Twitter and limiting the time I spend on news sites in order to protect my mental health. Up until now, I've never before in my life felt the need to separate myself from social media or from the news like this, but last Friday pushed me over that edge. I simply cannot tolerate hearing about what the President or Mitch McConnell are saying right now, for at least a few more days. 

I have also made donations to the Biden/Harris campaign and to the "Get Mitch or Die Trying" fund. (Sadly, I understand that the polling data shows Amy McGrath probably has no real chance of unseating Mitch McConnell, so the latter fund donates to other Democratic senate campaigns that have a better chance.) With regards to the Supreme Court as an institution, and regardless of how Justice Ginsburg's seat is filled, I don't really see any way around needing some radical change to the structure of the Court, such as by court-packing. This was true even before last Friday, and it remains true now. 

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