Symposium: The liberal, yet powerful, feminism of Ruth Bader Ginsburg

This short article is part of a symposium on the jurisprudence of the late Justice Ruth Bader Ginsburg.

Katherine Franke is the James L. Dohr professor of legislation and director of the Centre for Gender and Sexuality Law at Columbia University.

Supreme Court docket Justice Ruth Bader Ginsburg will be remembered as the principal architect of the legislation of sex equality. There are three key elements to her conception of sex-based mostly justice worthy of thinking about as we digest her greater lifestyle and legacy as an advocate, teacher and member of the Supreme Court docket.

To start with, comprehension Ginsburg’s legacy is increased by an appreciation of how she was a proceduralist at coronary heart. In the early nineteen sixties, Ginsburg traveled to Sweden and learned Swedish to get the job done on a task with authorized scholar Anders Bruzelius on the policies of civil process in Europe. That early adore of process knowledgeable, if not underwrote, her approach to sex equality.

Ginsburg’s conception of sex-based mostly equality rested on an fundamental motivation to liberal humanism: Just about every person should be judged separately and not on the basis of stereotypes or generalizations linked with the class of person to which just one belongs. On this account, we all share a primary humanity, and should be viewed as men and women, not sexed bodies. The wrong of sex discrimination, so, lay in getting treated “as a woman” or “as a person.” In this regard, her approach to sex discrimination mirrored a liberal approach to race discrimination, and demanded the application of sex-blind decision-producing (to borrow a fairly out-dated and insensitive term) in employment, housing, education and other areas of civic lifestyle. “Sex, like, race is a noticeable, immutable characteristic bearing no required marriage to skill,” she recommended the courtroom in her oral argument in Frontiero v. Richardson. “Because a person’s pores and skin coloration bears no required marriage to skill, similarly — as appellees concede — a person’s sex bears no required marriage to skill.”

We should recognize Ginsburg’s notion of sex equality as proceduralist in mother nature because it imposes a check to ferret out discrimination that is far more process than substantive in mother nature. Instead than urging courts to apply a substantive examination of the sort of electricity that benefits in sex-based mostly inequality, these types of as patriarchy, the Ginsburg approach instructs courts to question a simple query: Was the treatment method of a person “on account of” or “on the basis of” their sex? If so, then sex discrimination was afoot, because a person’s sex should be irrelevant to the resolve of their qualifications for a social superior or undesirable, just as thing to consider of a person’s race is presumptively illegitimate.

But liberal feminism did not dominate feminist contemplating at the time. Cultural feminists regarded this approach as desperately wrong-headed insofar as it ignored the approaches in which women of all ages were diverse from guys. They argued that those people distinctions should be celebrated, not erased. They also argued that the liberal feminist approach taken by the likes of Ginsburg provided no leverage for addressing pregnancy discrimination – just one of the central and materials varieties of sex-based mostly discrimination that rested on true distinctions amongst guys and women of all ages. Dominance feminists available a competing critique of liberal feminism, most notably summed up by Catharine MacKinnon as: “Why should you have to be the similar as a person to get what a person gets simply because he’s a person?”

Nevertheless, a liberal approach to sex discrimination emerged as the dominant authorized framing of the make any difference in substantial measure as a final result of Ruth Bader Ginsburg’s get the job done as an advocate in the seventies, and we see it mirrored in the court’s choices in Reed v. Reed (1971), Frontiero (1973), Weinberger v. Wiesenfeld (1975) and Craig v. Boren (1976).

The second factor of Ginsburg’s conception of justice is that she normally insisted that the materials actuality of sex discrimination continues to be central to the authorized examination of sex-based mostly classifications. Her oral argument ahead of the Supreme Court docket in Weinberger supplies an excellent case in point. The case challenged a Social Security Act rule that authorized a wife to inherit the social security advantages of her deceased spouse, but not a spouse to inherit the advantages of a deceased wife. Her oral argument in the case was stunning, good and in depth when it came to describing how sexism worked in day by day lifestyle:

In sensible influence, legislation of this top quality help to keep women of all ages not on the pedestal but in a cage. They reinforced, not cure, women’s inferior posture in the labor pressure … Its interest to the households of insured male employees, their wives, and youngsters is expressed in the scheme that heaps additional drawback on the girl employee, much from rectifying financial discrimination against women of all ages … The influence is to stimulate the classic division of labor amongst person and girl to underscore twin assumptions initially, that amount for paying out, together with attendant advantages, is the prerogative of guys and second, that women of all ages, but not guys, correctly minimize their contributions in the doing work lifestyle to care for youngsters.

The signifies of proving discrimination as argued by Ginsburg was procedural in mother nature — was Stephen Wiesenfeld denied advantages “on account of his sex”? — nonetheless this rule was nested in just a very thick description of the horrible get the job done that sex discrimination achieved in true people’s lives. We observed Ginsburg make similar moves when she transitioned from advocate to justice. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the courtroom dominated that the statute of restrictions on a sex discrimination assert begins operating when the discrimination commences, not when the party getting discriminated against learns of the discrimination. In a strong dissent, Ginsburg available a homily on how sex discrimination really operates in the office: “Pay disparities usually take place, as they did in Ledbetter’s case, in tiny increments induce to suspect that discrimination is at get the job done develops over time. Comparative shell out information and facts, furthermore, is usually concealed from the employee’s view.”

Lastly, a 3rd factor worthy of noting as we contemplate Ginsburg’s legacy is that she was far more dedicated to a politics of equality than liberty, in distinction to, say, her colleague Justice Anthony Kennedy. In contrast to a lot of reproductive justice advocates of the seventies and these days, Ginsburg regarded sexual liberty – together with reproductive rights – not always as an end in itself, but as instrumental to the greater induce of sex-based mostly equality. Ending pregnancy-related discrimination and guaranteeing entry to the complete assortment of reproductive overall health care – together with contraception and abortion – were required in get to protected women’s office and civic equality, in her view. In her briefs and judicial viewpoints, she returned to a notion that women of all ages could under no circumstances be totally equivalent in the office or get pleasure from the position of complete and equivalent citizens if they could not handle their reproductive lives. In this sense, shielding reproductive rights and sexual liberty were a signifies of securing women’s equality to guys. She was a lot less inclined to protect sexual rights as independently basic.

When Ruth Bader Ginsburg, hardly five ft tall even in her pumps, stood to argue her case ahead of the Supreme Court docket in Duren v. Missouri (1979), Chief Justice Warren Burger leaned towards her and explained, “Mrs. Ginsburg, you may perhaps reduce the lectern if you would like.” She replied, “Yes, I could do that.” “Yes, I could do that” captures the ethos of her get the job done as an advocate advancing the induce of sex equality, and her electricity, brilliance and bravery as a jurist. She was not a radical feminist, but fairly her approach to sex equality was formed by, and then in transform formed, what the legislation could attain in eradicating sex-based mostly classifications and stereotyping in a vast assortment of contexts. As she ended her oral argument in Frontiero, quoting potent phrases from Sarah Grimke, “I question no favor for my sex. All I question of our brethren is that they consider their ft off our necks.”

The publish Symposium: The liberal, nonetheless potent, feminism of Ruth Bader Ginsburg appeared initially on SCOTUSblog.