Ruth Bader Ginsburg's Equal Protection Clause: 1970-80
Williams, Wendy W., Columbia Journal of Gender and Law
Professor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. (1) Her impact on the law during that critical decade earned her the title "the Thurgood Marshall of the women's movement" and secured her place in history--even before she became a federal appellate judge and Supreme Court justice.
I will devote my allotted space to two, intimately intertwined, topics: first, Ruth Ginsburg and the Supreme Court's standard of review in sex discrimination cases, and second, the substance of Ruth Ginsburg's concept of gender equality in law.
Ruth Ginsburg and the Standard of Review
The Supreme Court, by 1970, had settled on what had become known as the "two-tier" approach to equal protection cases. Cases challenging racial classifications were in the top tier; the Court subjected those classifications to "strict scrutiny" and placed the burden on the state to defend its classification by showing a "compelling interest" in its race-based law or practice. Rare was the race line that survived that standard. Almost all other kinds of classification fell into the lower tier: in such cases the court would settle for almost any colorable rationale the state could offer up for its categories. Gender-based classifications were firmly relegated to the lower tier. (2)
Ruth Ginsburg called the lower tier approach to sex discrimination the "anything goes" standard. (3) When she began her ten-year litigation career, the Court had never encountered a sex classification that it did not consider perfectly reasonable and constitutionally sound. This meant that the first challenge for women's rights advocates of the early 1970s was to persuade the Court to undertake a more skeptical look at sex-based laws. Professor Ginsburg led the way: she was the first lawyer to argue to the United States Supreme Court that sex classifications should, like race classifications, be subjected to the highest standard of review. (4) She did this in the ACLU's Brandeis-style brief in Reed v. Reed, submitted to the Court in the summer of 1971. In it, she recounted in detail the history of the legally-enforced second-class status of women and pointed to the historical analogy between the political, social, and legal status of women and that of African Americans. (5)
In its brief opinion issued in November of '71, the Court did not adopt Ginsburg's position on standard of review or even refer to it, but it did, for the first time in its history, strike down a gender-line in law as a violation of the equal protection clause of the Fourteenth Amendment. Better yet, the language of the Reed decision hinted, tantalizingly, at a new, more skeptical approach to gender-based laws. (6)
Two years later, in Frontiero v. Richardson, (7) Professor Ginsburg's argument that strict scrutiny should apply to gender cases persuaded four but not the necessary five justices. Pragmatist that Ginsburg was, she thereafter focused on coaxing the Court to adopt a mid-level "heightened" review for sex discrimination cases. That mission was accomplished in 1976, when Justice Brennan formulated an intermediate standard for gender cases in Craig v. Boren. (8) Ruth Ginsburg had advised the plaintiffs' lawyer in that case, submitted an amicus brief for the ACLU, and sat at counsel table for his oral argument to the Supreme Court. (9)
Ruth Ginsburg's substantive vision of gender equality
How Ruth Ginsburg has been characterized--and lauded or criticized based on this characterization--is as a proponent of "formal equality" for the sexes, viewing discrimination against men and women as equally reprehensible in the same way some conservative justices viewed discrimination against white people as the moral and legal equivalent of discrimination against minorities. …