Updated: Jan 9, 2021
Justice Ruth Bader Ginsburg is known to us all. She is the Supreme Court Justice who has become something of a pop icon in recent years. She is a strong liberal voice on the Court who is not afraid to write pointed dissenting opinions. But many of us don’t know much about her work before taking the bench. So as we focus on “Women in Action,” let’s take a glimpse at Justice Ginsburg as lawyer.
Between 1973 and 1978, lawyer Ginsburg argued three cases before the U.S. Supreme Court that were critical steps on the path to affording equal rights to women.
Did a federal law imposing different sex-based criteria for male and female military spousal dependency, unconstitutionally discriminate against women and therefore violate the Due Process Clause? Yes.
In Frontiero v. Richardson, 411 U.S. 677 (1973), Ginsburg argued on behalf of amicus American Civil Liberties Union in support of Appellant Frontiero. Notably, the justices did not ask her a single question or otherwise interrupt her – a sharp contrast to their treatment of the male advocates that day. Nevertheless, RBG would prevail.
Frontiero was a lieutenant in the Air Force who sought a dependent’s allowance for her husband and was denied. The applicable law automatically classified wives of military members as dependents. But husbands of military members were not classified as dependents unless they received more than half of their support from their wives. The Supreme Court held that the statute commanded "dissimilar treatment for men and women who are similarly situated," and therefore violated the Due Process Clause and Equal Protection.
Does the sex-based distinction in Social Security survivor benefits violate the Due Process Clause? Yes.
In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), Ginsburg argued for Appellee Wiesenfeld. Wiesenfeld was a widower whose wife had died in childbirth, leaving Wiesenfeld to care for their newborn son. Before her death, Wiesenfeld’s wife Paula was the principle source of the couple’s income. When Wiesenfeld applied for social security benefits for himself and his son, his son’s application was approved but his was denied. The Social Security Act provided benefits based on a deceased man’s earnings to both the children and the widow. But with respect to a deceased woman, the Act provided benefits only for the children. Wiesenfeld argued that the Act unfairly discriminated on the basis of sex, and the trial court granted summary judgment in his favor.
The Supreme Court affirmed. Justice Brennan wrote the opinion for the 8-0 majority. The court found that the purpose of social security benefits for the surviving spouse and children is to allow the surviving spouse to care for the family. The sex of the parent does not matter.
Do the sex-based requirements for survivor's benefits in the Social Security Act violate the Due Process Clause of the Fifth Amendment? Yes.
In Califano v. Goldfarb, 430 U.S. 199 (1977), Ginsburg argued on behalf of Appellee Goldfarb. Goldfarb was a widower who applied for survivor's benefits under the Social Security Act, but was denied. Section 402 of the Social Security Act required that Goldfarb have been receiving half his support from his wife at her time of death in order to be eligible for survivor’s benefits. Section 402 did not require the same for widows whose husbands had recently passed away. Goldfarb argued that the statute violated the Due Process Clause, and the trial court held that the statute was unconstitutional.
The Supreme Court affirmed. Justice Brennan wrote for a four-justice plurality and described the case as “indistinguishable” from the one in Weinberger v. Wiesenfeld. In Goldfarb’s case, a female worker's family was less protected than a male worker’s family. The court rejected the "archaic and overbroad" generalizations that a wife is more likely to be dependent on her husband than a husband on his wife. These "old notions" of gender roles were not sufficient to justify the different treatment of widows and widowers, and the Act therefore violated the Due Process Clause.
In 1980, Justice Ginsburg was appointed to the United States Court of Appeals for the D.C. Circuit, and we lost the benefit of her advocacy in a traditional lawyer’s role. Fortunately, her work as an appellate judge and Justice have continued to make progress against discrimination and violations of women’s rights. RBG is the original Wonder Woman.
Marie Williams owns Marie Williams Law, LLC. Before starting her own firm, Marie was an equity partner in the Appellate Advocacy Practice and Business Litigation Group of an AmLaw 100 firm for 9 years. She has first-chaired bench and jury trials, providing a solid foundation for her appellate work. During the last 18 years, Marie has worked on an extensive variety of civil litigation matters, including particular expertise defending banks and insurance companies in class actions and other complex litigation. Marie also has experience handling insurance coverage litigation, employment and ERISA litigation, a panoply of contract and tort litigation, and appeals from administrative rulings in a variety of industries.