Rethinking Ruth Bader Ginsburg a year after her death



After celebrating the first anniversary of Justice Ruth Bader Ginsburg’s death from cancer at the age of 87, the legacy of this forward-thinking lawyer, scholar and legal scholar remains to be determined. One theme that has emerged among the wave of feminist memes is that of the late Justice as an incrementalist. But close examination of her as a litigator and judge shows that she was anything but incremental – Justice Ginsburg was a daring change instigator who always pushed the boundaries.

An incrementalist is someone who takes a gradual approach to social change. The classic example of incrementalism was the NAACP’s strategy to reverse segregation. Rather than attacking the institution directly from the start, advocates challenged particular aspects of Jim Crow for several decades, gradually reducing discriminatory policies and setting precedents before pursuing the great victory in Brown v. Education Council.

READ MORE: Ruth Bader Ginsburg made the impossible easy | Opinion

The claim that RBG was a progressive begins with her time as an ACLU lawyer when she strategically selected cases to develop the building blocks that would support her strategy against gender discrimination. And later, as a judge, she took positions that similarly didn’t push the boundaries but rather slowly pushed the law in the direction she wanted.

This account of RBG’s incrementalism is woefully short.

Throughout her life, Justice Ginsburg was underestimated, whether as a member of an early cohort of Harvard law students in the 1950s, as an unsuccessful candidate for internships and jobs in a law firm, as an attorney before the Supreme Court, or as a supposedly moderate appointed to the High Court in 1993. Observers have misinterpreted her small size, formal demeanor and concern for collegiality to reflect shyness, only to be surprised by Ginsburg’s fierce determination and clear voice.

But closer examination reveals that Justice Ginsburg’s bold assertions about gender equality do not fit the tired story of her gradualism.

Ginsburg’s signature achievement as a lawyer has been to convince the Supreme Court to more strictly review laws that discriminate on the basis of sex. The conventional wisdom is that she, like the NAACP against Jim Crow, has moved slowly to build her case piece by piece. On the contrary, however, in the first case she ever argued, she immediately argued for the highest standard of review, scrutiny. Although the relevant precedent ran counter to her position, Ginsburg argued for the strongest protection against discrimination without any intermediate steps, drawing on arguments developed by pioneering feminists before her like Pauli Murray. In dozens of court briefs, she never wavered. In fact, even when it was clear the court was not going to agree with her, she pressed for strict scrutiny one last time in her most recent court brief.

READ MORE: Does the size of the Supreme Court need to grow to change the ideological balance? | For / Con

The incremental evaluation also claims that Ginsburg carefully planned a progression of cases to educate all-male judges about gender discrimination. It is a mistake. Some cases fit this bill, but sometimes she didn’t join until after other lawyers appealed to the court on their own. And many of the cases she asked the court to take have never been heard.

Another argument suggests that Ginsburg was a progressive for using men as plaintiffs. It’s true that her male clients have made convincing plaintiffs in several early sex discrimination lawsuits, but this is only a small number of her cases, most of which involved women. In addition, tackling gender discrimination on behalf of men was, especially in the 1970s, a high profile position. Ginsburg acknowledged the harm that gender stereotypes inflict on everyone, a visionary argument that paved the way for LGBTQ equality over the following decades.

Applying the incrementalist label to RBG also conflicts with its court record. Even though she criticized Roe vs. Wade before being a judge, as a judge, she regularly voted against abortion restrictions. Her commitment to the right to abortion as an equality issue, the basis for her earlier critique of Roe deer, would in fact guarantee Following protection, such as the right to federal funding for abortion. In other words, his criticism of Roe deer was that he wasn’t daring enough.

Other positions Ginsburg has taken as a judge reflect the same dynamic. She has always voted for gender equality. But beyond that, on gay and trans rights, Ginsburg naturally sided with LGBTQ litigants. In fact, she criticized half-measures like civil unions as “skimmed” marriage.

We shouldn’t declare RBG a progressive based on her upholding of professional standards and her gentle skill in navigating the legal world. Rather, we should see a revolutionary thinker whose success was possible in part because his behavior camouflaged the radical nature of the claims.

Elizabeth Kukura is Assistant Professor of Law and David S. Cohen is Professor of Law, both at the Thomas R. Kline School of Law at Drexel University.


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