Raising the Bar: Ruth Bader Ginsburg and the ACLU Women's Rights Project

Article excerpt

I. Introduction

This article will define the contribution of Ruth Bader Ginsburg to American constitutional law through her efforts as professor, lawyer, and women's rights advocate. The research focuses primarily on the years 1971 to 1980, during which time Ginsburg founded and was general counsel to the American Civil Liberties Union Women's Rights Project. Although her activities covered a broad range during those years, the concentration is on the litigation strategies she developed and employed in her roles as amicus curiae (hereinafter amicus), co-counsel, and lead counsel before the United States Supreme Court. From 1971 to 1980, Ginsburg participated in thirty-four cases. The majority of these are explored herein, with landmark cases examined in greater detail. The construction of the briefs in early cases is explored in particular detail as these arguments illustrate the unique intellectual analysis Ginsburg incorporated into her successful litigation strategy. Her method of taking extra-legal factors into account in her legal arguments is a hallmark of her strategy. In addition, her keen instinct, combined with meticulous research and preparation, allowed her to target the justices psychologically.

The primary source of information for this article was archival research conducted using the private papers of now Justice Ginsburg. The collection was donated in September 1998 and is housed in the Manuscripts Division of the Library of Congress. The collection spans the years 1946 to 1992, with the bulk concentrated in the period 1972 to 1980. The majority of the collection consists of papers documenting Ginsburg's work as an advocate for women's rights, particularly through her speeches, writings, and other documentation of her efforts as general counsel to the Women's Rights Project.

The papers comprise three categories: the American Civil Liberties Union file, the Speeches and Writings file, and the Miscellany file. The ACLU file, covering 1967 to 1980, composes nearly half the collection. The files include correspondence and memoranda, primarily between Ginsburg and clients, lawyers, clerks, and ACLU colleagues, as well as an array of legal papers such as opinions, orders, briefs, and motions. The Speeches and Writings file, spanning 1967 to 1980, consists chiefly of Ginsburg's speeches and articles. The speeches fall into two main categories. Those in the first set were delivered at conferences and meetings of women's rights groups and provide an interesting look at how Ginsburg viewed the progress of her litigation strategy. The speeches in the second set document Ginsburg's effort as a proponent for the passage of the Equal Rights Amendment (ERA) and include various statements before numerous state legislatures during the ratification period. The Miscellany file, covering 1946 to 1992, includes a truly miscellaneous collection of notes on ERA advocacy strategy, drafts of academic papers, and personal correspondence.

Secondary sources for this article included books and articles about judicial decision making and strategic interaction on the Supreme Court. This information was valuable in determining what was publicly known about the Justices' preferences when cases arrived at the Supreme Court. This created an avenue for speculation about the factors Ginsburg considered in formulating her litigation strategy. For example, in The Choices Justices Make,1 Lee Epstein and Jack Knight detail Justice Brennan's strategic actions in writing the opinion for the Court in Frontiero v. Richardson.2 Memoranda and correspondence between Ginsburg and fellow counsel on cases suggest that she tailored her oral arguments to specific Justices. In several cases, she was in direct contact with Supreme Court clerks and exchanged information with such individuals about the inner workings of the Court. This is not to suggest that Ginsburg was privy to confidential information or engaged in improper activity-rather that she benefited from a collegial relationship with Court clerks in crafting her strategy. …