Justice Ruth Bader Ginsburg died on Friday, the Supreme Court announced.
Chief Justice John Roberts said in a statement that “Our nation has lost a jurist of historic stature.”
Even before her appointment, she had reshaped American law. When he nominated Ginsburg to the Supreme Court, President Bill Clinton compared her legal work on behalf of women to the epochal work of Thurgood Marshall on behalf of African-Americans.
The comparison was entirely appropriate: As Marshall oversaw the legal strategy that culminated in Brown v. Board of Education, the 1954 case that outlawed segregated schools, Ginsburg coordinated a similar effort against sex discrimination.
Decades before she joined the court, Ginsburg’s work as an attorney in the 1970s fundamentally changed the Supreme Court’s approach to women’s rights, and the modern skepticism about sex-based policies stems in no small way from her lawyering. Ginsburg’s work helped to change the way we all think about women – and men, for that matter.
I’m a legal scholar who studies social reform movements and I served as a law clerk to Ginsburg when she was an appeals court judge. In my opinion – as remarkable as Marshall’s work on behalf of African-Americans was – in some ways Ginsburg faced more daunting prospects when she started.
When Marshall began challenging segregation in the 1930s, the Supreme Court had rejected some forms of racial discrimination even though it had upheld segregation.
When Ginsburg started her work in the 1960s, the Supreme Court had never invalidated any type of sex-based rule. Worse, it had rejected every challenge to laws that treated women worse than men.
For instance, in 1873, the court allowed Illinois authorities to ban Myra Bradwell from becoming a lawyer because she was a woman. Justice Joseph P. Bradley, widely viewed as a progressive, wrote that women were too fragile to be lawyers: “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”
And in 1908, the court upheld an Oregon law that limited the number of hours that women – but not men – could work. The opinion relied heavily on a famous brief submitted by Louis Brandeis to support the notion that women needed protection to avoid harming their reproductive function.
As late as 1961, the court upheld a Florida law that for all practical purposes kept women from serving on juries because they were “the center of the home and family life” and therefore need not incur the burden of jury service.
Ginsburg followed Marshall’s approach to promote women’s rights – despite some important differences between segregation and gender discrimination.
Segregation rested on the racist notion that Black people were less than fully human and deserved to be treated like animals. Gender discrimination reflected paternalistic notions of female frailty. Those notions placed women on a pedestal – but also denied them opportunities.
Either way, though, Black Americans and women got the short end of the stick.
Ginsburg started with a seemingly inconsequential case. Reed v. Reed challenged an Idaho law requiring probate courts to appoint men to administer estates, even if there were a qualified woman who could perform that task.
Sally and Cecil Reed, the long-divorced parents of a teenage son who committed suicide while in his father’s custody, both applied to administer the boy’s tiny estate.
The probate judge appointed the father as required by state law. Sally Reed appealed the case all the way to the Supreme Court.
Ginsburg did not argue the case, but wrote the brief that persuaded a unanimous court in 1971 to invalidate the state’s preference for males. As the court’s decision stated, that preference was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the 14th Amendment.”
Two years later, Ginsburg won in her first appearance before the Supreme Court. She appeared on behalf of Air Force Lt. Sharron Frontiero. Frontiero was required by federal law to prove that her husband, Joseph, was dependent on her for at least half his economic support in order to qualify for housing, medical and dental benefits.
If Joseph Frontiero had been the soldier, the couple would have automatically qualified for those benefits. Ginsburg argued that sex-based classifications such as the one Sharron Frontiero challenged should be treated the same as the now-discredited race-based policies.
By an 8–1 vote, the court in Frontiero v. Richardson agreed that this sex-based rule was unconstitutional. But the justices could not agree on the legal test to use for evaluating the constitutionality of sex-based policies.
In 1974, Ginsburg suffered her only loss in the Supreme Court, in a case that she entered at the last minute.
Mel Kahn, a Florida widower, asked for the property tax exemption that state law allowed only to widows. The Florida courts ruled against him.
Ginsburg, working with the national ACLU, stepped in after the local affiliate brought the case to the Supreme Court. But a closely divided court upheld the exemption as compensation for women who had suffered economic discrimination over the years.
Despite the unfavorable result, the Kahn case showed an important aspect of Ginsburg’s approach: her willingness to work on behalf of men challenging gender discrimination. She reasoned that rigid attitudes about sex roles could harm everyone and that the all-male Supreme Court might more easily get the point in cases involving male plaintiffs.
She turned out to be correct, just not in the Kahn case.
Ginsburg represented widower Stephen Wiesenfeld in challenging a Social Security Act provision that provided parental benefits only to widows with minor children.
Wiesenfeld’s wife had died in childbirth, so he was denied benefits even though he faced all of the challenges of single parenthood that a mother would have faced. The Supreme Court gave Wiesenfeld and Ginsburg a win in 1975, unanimously ruling that sex-based distinction unconstitutional.
And two years later, Ginsburg successfully represented Leon Goldfarb in his challenge to another sex-based provision of the Social Security Act: Widows automatically received survivor’s benefits on the death of their husbands. But widowers could receive such benefits only if the men could prove that they were financially dependent on their wives’ earnings.
Ginsburg also wrote an influential brief in Craig v. Boren, the 1976 case that established the current standard for evaluating the constitutionality of sex-based laws.
Like Wiesenfeld and Goldfarb, the challengers in the Craig case were men. Their claim seemed trivial: They objected to an Oklahoma law that allowed women to buy low-alcohol beer at age 18 but required men to be 21 to buy the same product.
But this deceptively simple case illustrated the vices of sex stereotypes: Aggressive men (and boys) drink and drive, women (and girls) are demure passengers. And those stereotypes affected everyone’s behavior, including the enforcement decisions of police officers.
Under the standard delineated by the justices in the Boren case, such a law can be justified only if it is substantially related to an important governmental interest.
Among the few laws that satisfied this test was a California law that punished sex with an underage female but not with an underage male as a way to reduce the risk of teen pregnancy.
These are only some of the Supreme Court cases in which Ginsburg played a prominent part as a lawyer. She handled many lower-court cases as well. She had plenty of help along the way, but everyone recognized her as the key strategist.
In the century before Ginsburg won the Reed case, the Supreme Court never met a gender classification that it didn’t like. Since then, sex-based policies usually have been struck down.
I believe President Clinton was absolutely right in comparing Ruth Bader Ginsburg’s efforts to those of Thurgood Marshall, and in appointing her to the Supreme Court.
The time is now! Voting in the presidential election will begin in many states in just a few weeks – as early as Sept. 4 in North Carolina. Every state’s regulations and procedures are different, so it is vital that you understand the requirements and opportunities to vote where you live.
Here’s how to make sure you’re ready to vote, and that your vote will count.
Make sure that you are registered to vote at your current address. You may not have voted in a while. You may have moved or changed your name. You may have forgotten when you last registered to vote. Calling or visiting your secretary of state’s office or local Board of Elections may be a good place to start.
You can also visit Vote.org, Rock the Vote, I am a voter or the U.S. Vote Foundation, all nonprofit, nonpartisan websites providing lots of detailed information about voting rights, registration and the process of voting. It took only a few minutes online for me to verify my own registration and voter ID number.
The federal government offers lots of useful voting information, too.
If you’re not registered – whether you have never registered or your registration is out of date – there is still time. September 22 is National Voter Registration Day, when millions of individuals register to vote.
Each state has its own process and deadlines, and you may be able to register online through Vote.org, which can take less than two minutes.
If you’d rather register to vote on paper, download and print a simple form from the federal government, which asks you to provide some personal information, like your name and address. The instructions give state-specific details and provide the mailing address you need to send the form to.
While you’re at it, encourage your friends to register too.
Not everyone who is registered to vote actually casts a ballot. You’re more likely to actually vote if you make a plan.
You’ll need to find out when to vote in person and where to do it. Election Day is Tuesday, Nov. 3, 2020 – but different cities and towns have different voting hours. Many communities have several polling places, and you need to go to the right one, depending on where you live. Make sure you know where to go.
In some places you can vote in person for some number of days ahead of Election Day, often at the main municipal government building. Your town office – and its website – will likely have the dates and location information prominently displayed.
If you don’t want to vote in person, either because of your work or personal schedule, or because of the pandemic, think about voting by mail. Some states will mail you a ballot automatically, either because they conduct their elections by mail or because they have made special provisions to do so as a result of the pandemic. In other states you have to request one – and sometimes you need to provide a specific excuse for wanting to avoid in-person voting.
If you’re voting by mail, you may need to pay postage to send your ballot back in. Call your local election office and ask how much you’ll need – and get the right postage. You can order postage online for free delivery – and splitting the cost of a book of stamps is another great opportunity to share voting with a friend.
In 2016, nearly one-quarter of U.S. votes were cast by mail. Research and evidence show that it is safe and reliable – though with large numbers of people expected to vote by mail this year, it’s best to mail your ballot back as early as possible to make sure it has plenty of time to arrive before it needs to be counted. The U.S. Postal Service recommends mailing your ballot at least a week before the deadline.
Large amounts of mail also might mean you don’t get your ballot in the mail until just before the election. If it arrives with less than a week to go, call your local Board of Elections or municipal clerk immediately to find out what your options are. You may be able to drop off the ballot rather than mailing it in, and you should also still have the option to vote in person, either on or before Election Day.
If you’re worried about the safety of voting by mail, there are plenty of administrative and legal protections for mailed-in ballots, and steep penalties for those who tamper with election mail.
Many people set reminders for all sorts of important things: medical appointments, friends’ birthdays, bill payment dates and so on. Add voting to your calendar – including alerts to request a mail-in ballot, to vote early, to mail your ballot and certainly for Election Day itself.
Every vote that is cast is a vital contribution to the nation’s future. Encourage everyone you know to vote. You can even invite people to your calendar events – or share your plans on social media, in an email to family and friends. Send texts to people you know. Pledge to call 10 people and ask them to vote, and ask each of them to call 10 more people.
If you make your plan and follow the requirements of your state and local government, you can cast your ballot and be certain that your vote will count.
You may encounter people claiming there could be “widespread” voter fraud or that the election is somehow “rigged.” But the biggest problem is that so few people actually vote: In 2016, 40% of eligible American voters didn’t cast a ballot.
It is your right to vote. Exercise that right proudly and make your voice heard.
