Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87

Sep 18, 2020
Originally published on September 21, 2020 8:37 am

Follow NPR's coverage of Ginsburg's death and the political aftermath here.

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.

The court, in a statement, said Ginsburg died at her home in Washington, D.C., surrounded by family. She was 87.

"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice."

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."

She knew what was to come. Ginsburg's death will have profound consequences for the court and the country. Inside the court, not only is the leader of the liberal wing gone, but with the court about to open a new term, the chief justice no longer holds the controlling vote in closely contested cases.

Though Roberts has a consistently conservative record in most cases, he has split from fellow conservatives in a few important ones this year, casting his vote with liberals, for instance, to protect at least temporarily the so-called DREAMers from deportation by the Trump administration, to uphold a major abortion precedent and to uphold bans on large church gatherings during the coronavirus pandemic. But with Ginsburg gone, there is no clear court majority for those outcomes.

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Upcoming political battle

Indeed, a week after the upcoming presidential election, the court is for the third time scheduled to hear a challenge brought by Republicans to the Affordable Care Act, known as Obamacare. In 2012, the high court upheld the law in a 5-4 ruling, with Roberts casting the deciding vote and writing the opinion for the majority. But this time the outcome may well be different.

That's because Ginsburg's death gives Republicans the chance to tighten their grip on the court with another appointment by President Trump so conservatives would have 6-3 majority. And that would mean that even a defection on the right would leave conservatives with enough votes to prevail in the Obamacare case and many others.

At the center of the battle to achieve that will be Senate Majority Leader Mitch McConnell. In 2016, he took a step unprecedented in modern times: He refused for nearly a year to allow any consideration of President Barack Obama's Supreme Court nominee.

Back then, McConnell's justification was the upcoming presidential election, which he said would allow voters a chance to weigh in on what kind of justice they wanted. But now, with the tables turned, McConnell has made clear he will not follow the same course. Instead he will try immediately to push through a Trump nominee so as to ensure a conservative justice to fill Ginsburg's liberal shoes, even if Trump were to lose his reelection bid. Asked what he would do in circumstances such as these, McConnell said: "Oh, we'd fill it."

So what happens in the coming weeks will be bare-knuckle politics, writ large, on the stage of a presidential election. It will be a fight Ginsburg had hoped to avoid, telling Justice John Paul Stevens shortly before his death that she hoped to serve as long as he did — until age 90.

"My dream is that I will stay on the court as long as he did," she said in an interview in 2019.

"Tough as nails"

She didn't quite make it. But Ruth Bader Ginsburg was nonetheless a historic figure. She changed the way the world is for American women. For more than a decade, until her first judicial appointment in 1980, she led the fight in the courts for gender equality. When she began her legal crusade, women were treated, by law, differently from men. Hundreds of state and federal laws restricted what women could do, barring them from jobs, rights and even from jury service. By the time she donned judicial robes, however, Ginsburg had worked a revolution.

That was never more evident than in 1996 when, as a relatively new Supreme Court justice, Ginsburg wrote the court's 7-1 opinion declaring that the Virginia Military Institute could no longer remain an all-male institution. True, Ginsburg said, most women — indeed most men — would not want to meet the rigorous demands of VMI. But the state, she said, could not exclude women who could meet those demands.

"Reliance on overbroad generalizations ... estimates about the way most men or most women are, will not suffice to deny opportunity to women whose talent and capacity place them outside the average description," Ginsburg wrote.

She was an unlikely pioneer, a diminutive and shy woman, whose soft voice and large glasses hid an intellect and attitude that, as one colleague put it, was "tough as nails."

By the time she was in her 80s, she had become something of a rock star to women of all ages. She was the subject of a hit documentary, a biopic, an operetta, merchandise galore featuring her "Notorious RBG" moniker, a Time magazine cover and regular Saturday Night Live sketches.

On one occasion in 2016, Ginsburg got herself into trouble and later publicly apologized for disparaging remarks she made about then-presidential candidate Trump.

But for the most part Ginsburg enjoyed her fame and maintained a sense of humor about herself.

Asked about the fact that she had apparently fallen asleep during the 2015 State of the Union address, Ginsburg did not take the Fifth, admitting that although she had vowed not to drink at dinner with the other justices before the speech, the wine had just been too good to resist. The result, she said, was that she was perhaps not an entirely "sober judge" and kept nodding off.

The road to law

Born in Brooklyn, Ruth Bader went to public schools, where she excelled as a student — and as a baton twirler. By all accounts, it was her mother who was the driving force in her young life, but Celia Bader died of cancer the day before the future justice would graduate from high school.

Then 17, Ruth Bader went on to Cornell University on a full scholarship, where she met Martin (aka "Marty") Ginsburg. "What made Marty so overwhelmingly attractive to me was that he cared that I had a brain," she said.

After her graduation, they were married and went off to Fort Sill, Okla., for his military service. There Mrs. Ginsburg, despite scoring high on the civil service exam, could only get a job as a typist, and when she became pregnant, she lost even that job.

Two years later, the couple returned to the East Coast to attend Harvard Law School. She was one of only nine women in a class of more than 500 and found the dean asking her why she was taking up a place that "should go to a man."

At Harvard, she was the academic star, not her husband. The couple were busy juggling schedules and their toddler when Marty Ginsburg was diagnosed with testicular cancer. Surgeries and aggressive radiation followed.

"So that left Ruth with a 3-year-old child, a fairly sick husband, the law review, classes to attend and feeding me," Marty Ginsburg said in a 1993 interview with NPR.

The experience also taught the future justice that sleep was a luxury. During the year of her husband's illness, he was only able to eat late at night; after that he would dictate his senior class paper to her. At about 2 a.m., he would go back to sleep, Ruth Bader Ginsburg recalled in an NPR interview. "Then I'd take out the books and start reading what I needed to be prepared for classes the next day."

Marty Ginsburg survived, graduated and got a job in New York; his wife, a year behind him in school, transferred to Columbia, where she graduated at the top of her law school class. Despite her academic achievements, the doors to law firms were closed to women, and though recommended for a Supreme Court clerkship, she wasn't even interviewed.

It was bad enough that she was a woman, she recalled later, but she was also a mother, and male judges worried she would be diverted by her "familial obligations."

A mentor, law professor Gerald Gunther, finally got her a clerkship in New York by promising Judge Edmund Palmieri that if she couldn't do the work, he would provide someone who could. That was "the carrot," Ginsburg would say later. "The stick" was that Gunther, who regularly fed his best students to Palmieri, told the judge that if he didn't take Ginsburg, Gunther would never send him a clerk again. The Ginsburg clerkship apparently was a success; Palmieri kept her not for the usual one year, but two, from 1959-61.

Ginsburg's next path is rarely talked about, mainly because it doesn't fit the narrative. She learned Swedish so she could work with Anders Bruzelius, a Swedish civil procedure scholar. Through the Columbia University School of Law Project on International Procedure, Ginsburg and Bruzelius co-authored a book.

In 1963, Ginsburg finally landed a teaching job at Rutgers Law School, where she at one point hid her second pregnancy by wearing her mother-in-law's clothes. The ruse worked; her contract was renewed before her baby was born.

While at Rutgers, she began her work fighting gender discrimination.

The "mother brief"

Her first big case was a challenge to a law that barred a Colorado man named Charles Moritz from taking a tax deduction for the care of his 89-year-old mother. The IRS said the deduction, by statute, could only be claimed by women, or widowed or divorced men. But Moritz had never married.

The tax court concluded that the Internal Revenue Code was immune to constitutional challenge, a notion that tax lawyer Marty Ginsburg viewed as "preposterous." The two Ginsburgs took on the case — he from the tax perspective, she from the constitutional one.

According to Marty Ginsburg, for his wife, this was the "mother brief." She had to think through all the issues and how to fix the inequity. The solution was to ask the court not to invalidate the statute but to apply it equally to both sexes. She won in the lower courts.

"Amazingly," he recalled in a 1993 NPR interview, the government petitioned the U.S. Supreme Court, stating that the decision "cast a cloud of unconstitutionality" over literally hundreds of federal statutes, and it attached a list of those statutes, which it compiled with Defense Department computers.

Those laws, Marty Ginsburg added, "were the statutes that my wife then litigated ... to overturn over the next decade."

In 1971, she would write her first Supreme Court brief in the case of Reed v. Reed. Ruth Bader Ginsburg represented Sally Reed, who thought she should be the executor of her son's estate instead of her ex-husband.

The constitutional issue was whether a state could automatically prefer men over women as executors of estates. The answer from the all-male Supreme Court: no.

It was the first time the court had struck down a state law because it discriminated based on gender.

And that was just the beginning.

Ginsburg (left) joins the only three other women to sit on the U.S. Supreme Court — Sandra Day O'Connor, Sonia Sotomayor and Elena Kagan — in a celebration of O'Connor, the first woman justice, at the Newseum in Washington in 2012.
Manuel Balce Ceneta / AP

By then Ginsburg was earning quite a reputation. She would become the first female tenured professor at Columbia Law School, and she would found the Women's Rights Project at the American Civil Liberties Union.

As the chief architect of the battle for women's legal rights, Ginsburg devised a strategy that was characteristically cautious, precise and single-mindedly aimed at one goal: winning.

Knowing that she had to persuade male, establishment-oriented judges, she often picked male plaintiffs, and she liked Social Security cases because they illustrated how discrimination against women can harm men. For example, in Weinberger v. Wiesenfeld, she represented a man whose wife, the principal breadwinner, died in childbirth. The husband sought survivor's benefits to care for his child, but under the then-existing Social Security law, only widows, not widowers, were entitled to such benefits.

"This absolute exclusion, based on gender per se, operates to the disadvantage of female workers, their surviving spouses, and their children," Ginsburg told the justices at oral argument. The Supreme Court would ultimately agree, as it did in five of the six cases she argued.

Over the years, Ginsburg would file dozens of briefs seeking to persuade the courts that the 14th Amendment guarantee of equal protection applies not just to racial and ethnic minorities but to women as well.

In an interview with NPR, she explained the legal theory that she eventually sold to the Supreme Court.

"The words of the 14th Amendment's equal protection clause — 'nor shall any state deny to any person the equal protection of the laws.' Well that word, 'any person,' covers women as well as men. And the Supreme Court woke up to that reality in 1971," Ginsburg said.

During these pioneering years, Ginsburg would often work through the night as she had during law school. But by this time, she had two children, and she later liked to tell a story about the lesson she learned when her son, in grade school, seemed to have a proclivity for getting into trouble.

The scrapes were hardly major, and Ginsburg grew exasperated by demands from school administrators that she come in to discuss her son's alleged misbehavior. Finally, there came a day when she had had enough. "I had stayed up all night the night before, and I said to the principal, 'This child has two parents. Please alternate calls.' "

After that, she found, the calls were few and far between. It seemed, she said, that most infractions were not worth calling a busy husband about.

The Supreme Court's second woman

In 1980, President Jimmy Carter named Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit. Over the next 13 years, she would amass a record as something of a centrist liberal, and in 1993, President Bill Clinton nominated her to the Supreme Court, the second woman appointed to the position.

She was not first on his list. For months, Clinton flirted with other potential nominees, and some women's rights activists withheld their active support because they were worried about Ginsburg's views on abortion. She had been publicly critical of the legal reasoning in Roe v. Wade.

But in the background, Marty Ginsburg was lobbying hard for his wife. And finally Ruth Ginsburg was invited for a meeting with the president. As one White House official put it afterward, Clinton "fell for her — hook, line and sinker." So did the Senate. She was confirmed by a 96-3 vote.

Once on the court, Ginsburg was an example of a woman who defied stereotypes. Though she looked tiny and frail, she rode horses well into her 70s and even went parasailing. At home, it was her husband who was the chef, indeed a master chef, while the justice cheerfully acknowledged she was an awful cook.

Though a liberal, she and the court's conservative icon, Antonin Scalia, who died in 2016, were the closest of friends. Indeed, an opera called Scalia/Ginsburg is based on their legal disagreements, and their affection for each other.

Ginsburg speaks at a memorial service for Supreme Court Justice Antonin Scalia at the Mayflower Hotel in Washington in March 2016.
Susan Walsh / AP

Over the years, as Ginsburg's place on the court grew in seniority, so did her role. In 2006, as the court veered right after the retirement of Justice Sandra Day O'Connor, Ginsburg dissented more often and more assertively, her most passionate dissents coming in women's rights cases.

Dissenting in Ledbetter v. Goodyear in 2007, she called on Congress to pass legislation that would override a court decision that drastically limited back pay available for victims of employment discrimination. The resulting legislation was the first bill passed in 2009 after Obama took office.

In 2014, she dissented fiercely in Burwell v. Hobby Lobby, a decision that allowed some for-profit companies to refuse, on religious grounds, to comply with a federal mandate to cover birth control in health care plans. Such an exemption, she said, would "deny legions of women who do not hold their employers' beliefs, access to contraceptive coverage."

Where, she asked, "is the stopping point?" Suppose it offends an employer's religious belief "to pay the minimum wage" or "to accord women equal pay?"

And in 2013, when the court struck down a key provision of the Voting Rights Act, contending that times had changed and the law was no longer needed, Ginsburg dissented. She said that throwing out the provision "when it has worked and is continuing to work ... is like throwing away your umbrella in a rainstorm because you are not getting wet."

She viewed her dissents as a chance to persuade a future court.

"Some of my favorite opinions are dissenting opinions," Ginsburg told NPR. "I will not live to see what becomes of them, but I remain hopeful."

And yet, Ginsburg still managed some unexpected victories by winning over one or two of the conservative justices in important cases. In 2015, for example, she authored the court's decision upholding independent redistricting commissions established by voter referenda as a way of removing some of the partisanship in drawing legislative district lines.

Ginsburg always kept a backbreaking schedule of public appearances both at home and abroad, even after five bouts with cancer: colon cancer in 1999, pancreatic cancer 10 years later, lung cancer in 2018, and then pancreatic cancer again in 2019 and liver lesions in 2020. During that time, she endured chemotherapy, radiation and, in the last years of her life, terrible pain from shingles that never went away completely. All who knew her admired her grit. In 2009, three weeks after major cancer surgery, she surprised everyone when she showed up for the State of the Union address.

Shortly after that, she was back on the bench; it was her husband, Marty, who told her she could do it, even when she thought she could not, she told NPR.

A year later her psychological toughness was on full display when her beloved husband of 56 years was mortally ill. As she packed up his things at the hospital before taking him home to die, she found a note he had written to her. "My Dearest Ruth," it began, "You are the only person I have ever loved," setting aside children and family. "I have admired and loved you almost since the day we first met at Cornell. ... The time has come for me to ... take leave of life because the loss of quality simply overwhelms. I hope you will support where I come out, but I understand you may not. I will not love you a jot less."

Shortly after that, Marty Ginsburg died at home. The next day, his wife, the justice, was on the bench, reading an important opinion she had authored for the court. She was there, she said, because "Marty would have wanted it."

Years later, she would read the letter aloud in an NPR interview, and at the end, choke down the tears.

In the years after Marty's death, she would persevere without him, maintaining a jam-packed schedule when she was not on the bench or working on opinions.

Some liberals criticized her for not retiring while Obama was president, but she was at the top of her game, enjoyed her work enormously and feared that Republicans might not confirm a successor. She was an avid consumer of opera, literature and modern art. But in the end, it was her work, she said, that sustained her.

"I do think that I was born under a very bright star," she said in an NPR interview. "Because if you think about my life, I get out of law school. I have top grades. No law firm in the city of New York will hire me. I end up teaching; it gave me time to devote to the movement for evening out the rights of women and men."

And it was that legal crusade for women's rights that ultimately led to her appointment to the U.S. Supreme Court.

To the end of her tenure, she remained a special kind of feminist, both decorous and dogged.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

SCOTT SIMON, HOST:

Ruth Bader Ginsburg has died, a scholar and lawyer who became an icon. She designed and led the fight for women's rights in the 1970s and subsequently served 27 years on the U.S. Supreme Court. She died last night at the age of 87 of complications from metastatic cancer of the pancreas. NPR legal affairs correspondent Nina Totenberg, who knew and covered Justice Ginsburg for more than 40 years, has this report on her life and legacy.

NINA TOTENBERG, BYLINE: Ruth Bader Ginsburg quite simply changed the way the world is for American women, and she did it before she became a Supreme Court justice. For more than a decade, until her first judicial appointment in 1980, she led the fight in the courts for gender equality. When she began her legal crusade, women were treated by law differently from men. Hundreds of state and federal laws restricted what women could do, barring them from jobs, rights, even from jury service. By the time she dawned judicial robes, however, Ginsburg had wrought a revolution. That was never more evident than in 1996 when, as a relatively new Supreme Court Justice, Ginsburg wrote the court's 7-1 opinion declaring that the Virginia Military Institute could no longer exclude women. True, she said, most women - indeed, most men - could not meet VMI's rigorous demands, but...

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: Reliance on overbroad generalizations, typically male or typically female tendencies, estimates about the way most women or most men are will not suffice to deny opportunity to women whose talents and capacity place them outside the average description.

TOTENBERG: She was an unlikely pioneer, diminutive and shy. But in her later years, she became something of a rock star to women of all ages. She was the subject of two movies, an operetta, a Time magazine cover. Merchandise of every kind bore her tiny face with huge glasses. And she was the subject of regular "Saturday Night Live" sketches.

(SOUNDBITE OF TV SHOW, "SATURDAY NIGHT LIVE")

COLIN JOST: (As self) Here to comment is liberal Justice Ruth Bader Ginsburg.

(APPLAUSE)

TOTENBERG: Ginsburg enjoyed her fame but maintained a sense of humor about herself. When TV cameras showed her falling asleep during the 2015 State of the Union speech, she admitted during an onstage interview that she had imbibed a bit too much wine at dinner with the justices beforehand.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: So I got a call when I came home from one of my granddaughters, and she said, Bubbie, you were sleeping at the State of the Union.

(LAUGHTER)

TOTENBERG: Born in Brooklyn, N.Y., Ruth Bader went to public schools, excelled as a student and a baton twirler. Her mother, the driving force in her young life, died the day before the future justice was to graduate as valedictorian from her high school. Then 17, she went to Cornell on full scholarship. There she met Martin, a.k.a. Marty Ginsburg.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: What made Marty so just overwhelmingly attractive to me is that he cared that I had a brain.

TOTENBERG: The duo were married. He was drafted, and they went to Fort Sill, Okla., where she scored high on the civil service exam but could only get a job as a typist. Two years later, they returned to the East Coast and Harvard Law School. The Ginsburgs were busy juggling schedules and their toddler when Marty was diagnosed with testicular cancer. Surgery and aggressive radiation followed. That left Ruth alone to take care of their 2-year-old daughter and her very sick husband, including typing his senior thesis as he dictated it late at night.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: And then he'd go back to sleep, and it was about two o'clock. Then I'd take out the books and start reading what I needed to read to be prepared for classes the next day.

TOTENBERG: She graduated at the top of her class but couldn't find a job. Law firms were loath to hire a woman, much less a mother. She finally got a teaching job at Rutgers Law School, hid her second pregnancy so she wouldn't lose her job and began her fight for women's rights. Ginsburg's first Supreme Court victory came in a 1971 case testing whether state laws may automatically prefer men over women as executors of estates. The answer was no. It was the first time the Supreme Court had ever struck down a state law because it discriminated based on gender.

As the chief architect of the legal battle for women's rights, Ginsburg devised a strategy that was characteristically cautious, precise and single-mindedly aimed at one goal, winning. To that end, she often picked male plaintiffs to illustrate the inequality of the law for male judges. For instance, in one of the cases she argued before the Supreme Court, she represented a man whose wife, the principal breadwinner for the family, died in childbirth. Under the then existing law, a widow was entitled to Social Security payments for child care but not a widower.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: This absolute exclusion based on gender per se operates to the disadvantage of female workers, their surviving spouses and their children.

TOTENBERG: In an interview with NPR, she explained the legal theory that she sold to the Supreme Court, winning victories in five landmark cases.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

GINSBURG: The words of the 14th Amendment's equal protection clause - nor shall any state deny to any person the equal protection of the laws. Well, that word, any person, covers women as well as men. And the Supreme Court woke up to that reality in 1971.

TOTENBERG: After the 2006 retirement of Justice Sandra Day O'Connor, as the court grew more and more conservative, Ginsburg dissented more often and more assertively. For instance, when the court struck down a key provision of the Voting Rights Act that for decades had prevented discriminatory voting practices, Ginsburg skewered the majority's claim that the law was no longer needed. That, she said, is like throwing away an umbrella in the middle of a rainstorm because you aren't getting wet.

Despite her frequent dissents, Ginsburg from time to time was able to pull out victories in closely contested cases. In 2015, for instance, in an Arizona case, she authored the court's decision upholding independent redistricting commissions set up by voter referenda as a way of removing some of the partisanship in drawing legislative district lines.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: Arizona voters sought to restore the core principle that voters should choose their representatives, not the other way around.

TOTENBERG: Despite her soft voice and tiny stature, Ginsburg's inner core was, as one of her colleagues put it, tough as nails. Over a period of 20 years, she five times battled cancer, succumbing only this year. Over that time, she endured radiation, chemotherapy and, in her later years, even a bout of shingles with pain that never went away. Until 2019, after her surgery for lung cancer, she never missed a day in court. And in 2020, when the Supreme Court heard oral arguments in May by telephone, she participated from her hospital bed.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: I do think that I was born under a very bright star because if you think of my life, I get out of law school. I have top grades. No law firm in the city of New York will hire me. I end up teaching, and that gave me time to devote to the movement for evening out the rights of women and men.

TOTENBERG: For 60 of her years on this earth, Ginsburg's biggest booster, best pal and heartthrob was her husband Marty, who promoted her at every turn, teased her incessantly and prodded her back to work after cancer bouts. In 2010, though, it was Marty who was mortally ill. And as the Justice packed up his things in the hospital to take him home to die, she found a handwritten note he'd drafted.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: My dearest Ruth, I have admired and loved you almost since the day we first met at Cornell. The time has come for me to toughen up or to take leave of life because the loss of quality now simply overwhelms. I hope you will support where I come out, but I understand you may not. I will not love you a jot less.

TOTENBERG: Despite her loss, the day after her husband's death, Justice Ginsburg was on the Supreme Court bench announcing a major opinion for the court. She was there, she said, because Marty would have wanted it that way. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.