“We are at last beginning to relegate to history books the days of the token, one-at-a-time woman.” - Ruth Bader Ginsburg
U.S. Supreme Court Justice Ruth Bader Ginsburg, herself so often a “one-at-a-time woman,” changed the world for American women by systematically dismantling legal sex discrimination. When Ginsburg started her work in the 1960s, the Supreme Court had never invalidated a law that discriminated based on sex. Instead, it had rejected every challenge to laws that treated women worse than men.[1] Ginsburg changed that in 1971, when her brief to the Supreme Court in Reed v. Reed, 404 U.S. 71 (1971), convinced the nine male justices to invalidate a state law that required probate courts to appoint men when both a man and a woman sought to administer an estate.
Ginsburg’s legal campaign for gender equality took flight in Moritz v. Comm’r, 469 F.2d 466 (10th Cir. 1972), when she and her husband, a tax attorney, successfully challenged a caregivers’ tax benefit afforded to women but not men.[2] The case laid the groundwork for Ginsburg’s approach to sex-discrimination cases. It also provided a roadmap; the government petitioned for certiorari, stating that the decision "cast a cloud of unconstitutionality" over hundreds of federal statutes — which it listed in an attachment.[3] Ginsburg spent the next decade successfully litigating to overturn those statutes.
Ginsburg argued six gender discrimination cases to the Supreme Court, winning five. Her strategy: represent male clients to show the all-male Court how gender discrimination hurts everyone. It worked; her advocacy took apart sex-based preferences in Social Security benefits, military spousal benefits, and jury service. Her brief in Craig v. Boren, 429 U.S. 190 (1976), helped create the intermediate scrutiny test for gender-based laws. After the Supreme Court failed to find that pregnancy discrimination constituted sex discrimination, Ginsburg’s advocacy helped lead to the passage of the Pregnancy Discrimination Act of 1978. (Ginsburg herself had been demoted when she became pregnant with her first child while working at a local Social Security office; as a professor at Rutgers Law School, she hid her second pregnancy until after the university renewed her contract.)
Ginsburg took the bench as the second female Supreme Court Justice in 1993. In 1996, she authored U.S. v. Virginia, 518 U.S. 515 (1996), barring state schools from conditioning admission on gender. More broadly, though, the case prohibits any government action that “denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”[4] Her dissent in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), led to the passage of the Lilly Ledbetter Fair Pay Act of 2009, which amended the Civil Rights Act of 1964 to expand plaintiffs’ rights in pay discrimination lawsuits.
We feel her influence every day. Before Ginsburg, women could be fired from their jobs for becoming pregnant; denied access to their own credit cards; and excluded from sports, colleges, and professions deemed more suitable to men. Male caregivers, military husbands, and widowers could be denied benefits available to women. Ginsburg’s advocacy and jurisprudence opened doors for people of all genders to participate in society as they wish. We may have a long way to go to achieve full equality, but Ginsburg’s legal precedents fundamentally reshaped our society in just 50 years.
- Jenny Carman
In honor of what would have been Justice Ginsburg’s 88th birthday on March 15, 2021, The 1891 spoke with Colorado Attorney General Phil Weiser, who clerked for Justice Ginsburg during the Supreme Court’s 1995-96 term.
The 1995-96 term was an active one for the Court. Among other things, Justice Ginsburg authored the Court’s landmark decision in United States v. Virginia, holding the Virginia Military Institute’s male-only admissions policy unconstitutional, and joined the Court’s majority in Romer v. Evans, striking down a Colorado amendment that had banned protection from discrimination based on sexual orientation.
Photo courtesy of Phil Weiser.
Attorney General Weiser reflects on this memorable and formative year of his career.
The 1891: What were your first impressions upon meeting Justice Ginsburg as a law clerk?
Attorney General Weiser: I was struck by her halting and deliberate speaking style. Because she thought carefully about every word she said, you could easily and inadvertently interrupt her if you were not careful. I also was struck by how warm she was.
The 1891: Do you have a favorite memory of your time clerking for Justice Ginsburg?
Attorney General Weiser: For me, it was a special moment when I heard from her that the Supreme Court was going to invalidate Amendment 2, the Colorado constitutional amendment that singled out gays and lesbians and removed civil rights protections from them. I had just moved to Washington, D.C., from Colorado and was greatly relieved by the Court’s decision.
On a more personal level, it was a unique experience for me to talk with her about whether she would sit with the Supreme Court to hear oral arguments on Yom Kippur — a Sandy Koufax moment. Koufax, the famed pitcher for the Dodgers, decided not to pitch Game One of the 1965 World Series because it fell on Yom Kippur. When the Supreme Court was scheduled to sit on Yom Kippur, a day Ginsburg traditionally worked, she decided that, like Koufax before her, she would not sit with the Court. As a result, Chief Justice Rehnquist changed the schedule and the Court has not sat on Yom Kippur since.
The 1891: Since clerking for the Justice, you’ve had the opportunity to argue before her. Did it make you more or less nervous knowing she was evaluating your argument?
Attorney General Weiser: Arguing before the Supreme Court is a harrowing experience without the additional dimension of arguing before my former boss. In my case, I had the added motivation — and pressure — of wanting to meet her very high standards. I did my best to meet those standards.
The 1891: Has your experience clerking for Justice Ginsburg impacted the way you approach the practice of law today?
Attorney General Weiser: Absolutely. Working for Justice Ginsburg provided me with a vision of excellence in legal writing that will always stay with me. As I push myself to “get it right, and keep it tight,” I will also think of RBG. She both preached and lived that mantra.
I also deeply respected her relationship with Justice Scalia, demonstrating an ability to engage in respectful dialogue, even when they disagreed. She treasured her friendship with Justice Scalia. In this era of division and demonizing those with whom we disagree, Justice Ginsburg’s commitment to dialogue and openness to criticism as a way to generate better outcomes is an example we can all learn from.
Justice Ruth Bader Ginsburg with Colorado AG Phil Weiser. - Photo Courtesy of Weiser Facebook
* * *
Share your RBG memories! CWBA members are invited to share their own memories and favorite moments from the life of the late Justice at The 1891.
The CWBA is also hosting a drawing for readers! It's RBG's birthday, but you could be a lucky winner of a gift! The first three people to comment on this post will receive either a Super Diva sweatshirt, a six-pack of "I Dissent" beer from Lady Justice Brewing, or a copy of Justice Ginsburg’s book, My Own Words, which is also our blog's Book Club read for April.
- Jen Erickson Baak
[1] See, e.g., Hoyt v. State of Fla., 368 U.S. 57 (1961) (upholding statute permitting but not requiring women to serve on juries despite its tendency to produce all-male juries); Muller v. State of Oregon, 208 U.S. 412 (1908) (upholding statute that limited women’s work hours but not men’s); Bradwell v. People of State of Illinois, 83 U.S. 130 (1872) (upholding sex-based denial of license to practice law). [2] Ginsburg’s work on Moritz preceded Reed, but Reed was decided first. [3] Martin D. Ginsburg, A Uniquely Distinguished Service, 10 Green Bag 2d 173, 175 (2007). [4] U.S. v. Virginia, 518 U.S. 515, 532 (1996).
Jenny Carman is a Staff Attorney at the Colorado Court of Appeals, where she has practiced across the spectrum of criminal, civil, and juvenile law since 2009. Any views or opinions expressed in this publication do not reflect the position of the Colorado Court of Appeals or the Colorado Judicial Department.
Jen Erickson Baak works as Counsel at Hilgers Graben PLLC where she focuses on civil and appellate litigation. Any opinions expressed in this publication do not reflect those held by Hilgers Graben.