Rhetoric of Justice Ruth Bader Ginsburg: Brief Comparison of the Language of the Advocate with the Language of the Justice

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I worked with and for Justice Ruth Bader Ginsburg in the 1970s at the ACLU. I have been in private practice since then, mostly practicing employment law.

As I was considering what to speak to you about today, I decided to look back at the briefs that Justice Ginsburg wrote in the 1970s. And as I read them, it occurred to me that there's a very interesting difference between the way she framed her arguments those thirty-five years ago, the language she used, the results she sought then as an advocate, and the way she does those things now as a judge.

I offer you two illustrations.

The first comparison I call "high dudgeon then and now."

Justice Ginsburg didn't display high dudgeon very often as an advocate but I found one excellent example, and I cherish it. It comes from her first Supreme Court brief, the one in Reed v. Reed in 1971. (1)

Reed v. Reed, was a challenge to an Idaho statute that preferred men to women as administrators of estates. (2) That seems simple and straightforward enough today, but 1971 was a different world. First, there was no Supreme Court precedent at all, or, rather, there was a lot of Supreme Court precedent, and all of it was bad. Justice Ginsburg's brief in Reed was the very last time she would ever have to brief a case in the United States Supreme Court without being able to cite a Supreme Court case that she herself had won.

Also significant is this--we were then right in the middle of the civil rights movement. Brown v. Board of Education of Topeka was in the recent past. (3) Maybe more important, Justice Ginsburg herself was practically a child--a mere thirty-eight years old. Despite her brilliance, she had not up until then gotten the jobs that were easily available to brilliant men, and even to men who were not so brilliant. And the Idaho statute she was challenging was particularly stupid.

Justice Ginsburg knew, and has said as much, that it was our job to avoid frightening and alienating old male judges and show them, instead, that the favors they thought they were doing for women were not favors at all, that the pedestal was actually a cage. Throughout her ten years of women's rights advocacy, she challenged gender lines by showing judges that the classification was the outmoded product of stereotypical thinking: men as breadwinners, women as dependents; men as active, women as passive.

But that gentle approach is not the only thing on display in the Reed brief. Perhaps it was her youthful exuberance, but in that brief, it would be hard to say that she was not downright confrontational. Here are a few quotes from that brief:

"Race and sex are comparable classes. Both have been defined by, and subordinated to, the same power group--white males."

"Both slaves and wives were once subject to the all-encompassing paternalistic power of the male head of house."

"Prior to the Civil War, the legal status of women in the United States was comparable to that of blacks under the slave codes, albeit the white woman ranked as 'chief slave of the harem.'"

She might have cited--but didn't--the infamous line of her colleague, Professor Curt Berger, who said in his property law textbook, "Land, like woman, is meant to be possessed." (4)

Justice Ginsburg concluded the Reed brief with the most audacious line of all. She asserted that designating sex as a suspect classification was overdue! Despite the fact that no one--not even she--had ever before actually asked the Court to do so.

As far as I know, Justice Ginsburg as advocate was never quite so confrontational in any later brief. But she certainly was as a judge. My favorite illustration is her dissenting opinion five years ago in Ledbetter v. Goodyear Tire & Rubber Co. (5)

Allow me to set this up.

When Lily Ledbetter was about to retire from nineteen years of employment from Goodyear, she learned that she had been denied raises in the past due to her sex and those denials rendered her current pay much lower than that of comparable males. …