On Sept. 18, 2020, we lost an iconic feminist, a lawyer and Supreme Court Justice with an unyielding commitment to moving the law toward gender justice. Dedicating her life to service, Ruth Bader Ginsburg changed the trajectory of women’s lives for the better. That her voice —vigilant and incisive — was often heard in dissent tells us volumes about both the status quo of legal analysis and Ginsburg’s keen ability to refine our understandings of the demands of justice in law. Like the intricate designs of her trademark collar, her dissents wove together the enduring possibility of social change through feminist critique with the reality of having to produce a conclusive, “right” outcome to a particular case.
Above all, Ginsburg was a champion for gender equality whose legal strategy was indebted to the work of civil and women’s rights lawyer and activist Pauli Murray. In her life and jurisprudence, Ginsburg sought to dismantle gendered stereotypes about the “appropriate” ways in which women ought to behave. She defended women’s equal opportunities to engage in all areas of social, economic and political life from which they were previously excluded (e.g., United States v. Virginia, 1996). Further, she never wavered on women’s equal rights to control their own lives, including, notably, their reproductive lives (e.g., Burwell v. Hobby Lobby, 2014).
Neither did Ginsburg shy away from taking the court to task went it expressed the egregious, but common, idea that practices of racist exclusion (like segregation) and race conscious inclusion (like affirmative action) should be (re)viewed similarly (see Gratz v. Bollinger, 2003). Appealing to empirical evidence on the persistence of systemic racism, Ginsburg spoke emphatically in her attempts to steer a nation away from “pretend[ing] that history never happened and that the present doesn’t exist” (Ginsburg quoting Carter, “When Victims Happen To Be Black”, 99 Yale L.J. 420, 1988 in her dissent to Gratz v. Bollinger, 2003). A similar commitment to the historical truth and contemporary empirical fact of pervasive patterns of racism is on display in her defense of the Voting Rights Act, which aimed to combat entrenched racial discrimination in voting (Shelby v. Holder, 2013).
The devastation of her loss is deepened by the fact that her vision of a just world is so perilously positioned in today’s reality and tomorrow’s emerging potential. Yet even with the legal foundations of gender equality at stake, the pedagogical importance and bolstering capacity of Ginsburg’s jurisprudence will form a lasting legacy. In her dissents, Ginsburg knew she was writing for a time beyond her years. In the wake of her departure from the Court, her words and embodied example will continue in the unwavering commitment of future feminist endeavors that push for the creation of a truly egalitarian society.
Lyn K.L. Tjon Soei Len, Assistant Professor