10.06.09

Feminism's Last Line of Defense

Sonia Sotomayor’s debut this week restores a two-woman Supreme Court. But Ruth Ginsburg is the voice that matters on gender issues. Michelle Goldberg on why there’ll never be another justice like her.

Confident and assertive on her first day of her first Supreme Court term, Sonia Sotomayor made headlines for asking more questions in an hour than Clarence Thomas has in years. Thrilling as that was, it was even better to read that 76-year-old Ruth Bader Ginsburg dominated questioning along with her new colleague. Ginsburg was recently hospitalized after feeling faint at work; she underwent an operation for pancreatic cancer earlier this year. For feminists, she’s irreplaceable, even with a Democratic president around to appoint her successor. She needs to stick around as long as she can.

Her voice is especially necessary now, at a time when, thanks to George W. Bush’s nominees, the Supreme Court has become the branch of government most hostile to gender equality.

Ginsburg’s pathbreaking legal work on women’s rights has sometimes been analogized to Thurgood Marshall’s civil-rights advocacy. The two justices’ temperaments are profoundly different; Ginsburg is actually quite modest and incremental in her approach to the law. She’s written that courts should, at most, “moderately add impetus” to social change. Nevertheless, her work on behalf of women has changed the lives of most Americans. Her voice is especially necessary now, at a time when, thanks to George W. Bush’s nominees, the Supreme Court has become the branch of government most hostile to gender equality.

As co-director of the ACLU’s Women’s Rights Project in the 1970s, Ginsburg was a central figure in a string of cases in which various kinds of sex discrimination were ruled unconstitutional. She was famously clever in choosing cases in which discriminatory laws hurt men—one of her cases involved a widower father who couldn’t collect social security benefits available to widowed mothers, another challenged an Oklahoma law that let women buy low-alcohol beer at age 18, while men had to be 21. Presented with victimized men, justices had a way of suddenly comprehending the perniciousness of sexism. Her work resulted in many of the protections later generations of women would take for granted.

Indeed, that’s one reason we’re unlikely to see someone like her again. Ginsburg was seared by personal experiences of sexism, while her work has helped insure that later generations of women would be spared similar injustices. As one of nine women in her Harvard Law School class, she was asked by the dean how she could justify taking a place that would have gone to a man. Justice Felix Frankfurter refused to hire her as a clerk because of her gender. As a law professor in the early 60s, she hid her second pregnancy because she was afraid it might endanger her job.

Though Obama is in many ways more liberal than Clinton, it’s hard to imagine him nominating someone like Ginsburg. Unlike Sotomayor, who has no real paper trail on abortion or other contentious gender issues, Ginsburg had a long, public record as an advocate for sexual equality. It’s amazing to remember that in 1993, only three Republicans voted against her confirmation—as polarized as the Clinton years were, things are far worse today. A record as a feminist champion is far more likely to hinder than to help future Supreme Court candidates.

Not, of course, that Ginsburg is remotely radical. She’s usually been a quiet presence who prizes collegiality. One of the oddest and most charming things about her is her close friendship with Antonin Scalia—apparently she and her husband spend every New Years Eve with him and his wife. But in recent years, as an increasingly conservative court has chipped away at the rights closest to her heart, she’s been a lucid and indignant voice of opposition.

In 2007, the Supreme Court upheld a ban on late-term abortions that made no provision for exceptions when a woman’s health is threatened. Clearly outraged, Ginsburg took the unusual step of reading her dissent from the bench. Writing for the majority, Justice Anthony Kennedy made the maddeningly condescending claim that women needed to be protected from a procedure they might later regret. “This way of protecting women recalls ancient notions about women's place in society and under the Constitution—ideas that have long since been discredited,” she wrote.

Later that year, the court voted to limit sex discrimination lawsuits in the Lily Ledbetter case. Once again, there was a cold fury in her dissent, which she again read from the bench: “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” “[T]his year we are witnessing—what shall we call it?—the radicalization of Ruth Bader Ginsburg?” the columnist Ellen Goodman wrote at the time. “The transformation of the 74-year-old justice who is watching a court undo her life's work?”

Even with Sotomayor to back her up, that undoing will likely continue in the Roberts court. It’s a sad way to wind up a career, seeing one’s legacy eroded. Still, given how public she’s been about her loneliness as the only woman on the bench, at least now she’ll have some company. Hopefully she’ll be able to enjoy it for years to come.

Michelle Goldberg is the author of The Means of Reproduction: Sex, Power and the Future of the World and Kingdom Coming: The Rise of Christian Nationalism. She is a senior correspondent for The American Prospect, and her work has appeared in The New Republic, The Nation, the Los Angeles Times, Glamour, and many other publications.