I was lucky enough to witness the day Supreme Court Justice Ruth Bader Ginsburg became the Great Dissenter.
It was April 18, 2007, the first oral argument session that I attended as a reporter covering the court for a group of legal newspapers.
But what happened before the argument would make history: not only would the court deliver a 5-4 ruling upholding the federal ban on partial-birth abortions — a ban that did not include an exception to protect the health of women — but Ginsburg would give a scathing verbal rebuke of the ruling, the first in a series of bench dissents that would become her trademark in decisions she believed to be unjust, particularly on issues involving women’s rights.
Ginsburg, the lone woman on the bench at the time, noted that the only circumstance that had changed since the Court’s rulings in Roe v. Wade and Planned Parenthood v. Casey was the composition of the court itself, not the constitutional underpinnings of precedential rulings protecting women’s reproductive rights.
The decision, she said, “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court and with increasing comprehension of its centrality to women’s life.”
Ginsburg, who died Friday of pancreatic cancer at age 87, would use her voice in dissent just weeks later in decrying a ruling that stripped women of the ability to bring wage discrimination claims if they were not discovered within six months of the unequal paycheck being issued — despite the fact that such discrimination is usually purposely concealed by employers.
“Title VII was meant to govern real world employment practices and that world is what the court ignores today,” Ginsburg said of the federal civil right statute.
Ginsburg didn’t just decry the ruling, but she directed her call to the lawmakers under the Capitol dome directly across the street from the court to act.
It did, and the first piece of legislation signed into law by President Obama was the Lilly Ledbetter Fair Pay Act — named after the plaintiff in the high court case — which extended the time in which such claims can be filed.
Ginsburg would begin regularly using her voice, quite literally, to call out injustices facing women and members of other marginalized groups. And the dissents drew the attention they demanded, leading in part to her nickname of “Notorious R.B.G.,” and even spurring lines of “dissent collars” sold by retailers in honor of the neckwear she’d choose for the occasions.
Despite criticisms of so-called activist judges who go beyond restrained statutory of constitutional interpretations to consider the real-world impact and effects of judicial rulings, Ginsburg never saw her focus on women’s rights as contrary to her oath to “faithfully and impartially” administer justice according the Constitution and federal law.
In fact, it was because Ginsburg knew well, from firsthand experience, the workings and impact of gender discrimination that she knew that federal laws and constitutional principles were the very tools she and other judges could employ to fight against it.
Despite finishing first in her law school class at Columbia University, no law firm made her an offer. She began teaching at Rutgers Law School, and co-founded the Women’s Rights Law Reporter, the first US law journal to focus solely on women. She was even part of a class action lawsuit against Rutgers after she discovered that her salary was lower than those of her male colleagues.
She would famously go on to lead the American Civil Liberties Union’s women’s rights project, becoming an advocate before the high court to which she would later be appointed.
“It takes women and men who are feminists” to achieve gender equality, Ginsburg said in a 2010 ABA Journal interview. “By feminists I mean people who think women should have equal chances to do whatever their talent permits them to do. They have to be willing to ask for these accommodations. It’s more than asking — it’s expecting how workplaces should be organized.”
When the court had three female justices for the first time in history, Ginsburg was asked how many women on the bench would be enough. She always said nine.
“There’d been nine men, and nobody’s ever raised a question about that,” she’d quip.
Ginsburg was as much a women’s rights advocate in her personal life. In speaking appearances, she would frequently recount how, when both she and her husband, the late Martin Ginsburg, were young working attorneys, only she would receive calls from their children’s school.
“This child has two parents,” Ginsburg would recall telling the school administrator. “Please alternate calls. It’s his father’s turn.”
Ginsburg’s career and life were, as Justice Elena Kagan aptly noted, “pathmarking.”
“Pathmarking. Have you ever heard that word before?” Kagan said at a 2014 event honoring Ginsburg. “It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”
Fitting, as with Ginsburg, where there was not a path — or a word — that did the job, she created one.