ICRW conferred its annual Champions for Change Award for Vision on U.S. Supreme Court Justice Ruth Bader Ginsburg for her unwavering commitment to women’s health, well-being and equal citizenship stature and her courageous vision for legal systems that respect the dignity of all humankind.
The awards ceremony, hosted by the Embassy of Denmark, took place on March 10, 2016. After the ceremony, ICRW had the chance to sit down with Justice Ginsburg to talk about her foundational work for gender equality in the United States, current challenges and the impact of gender balance on the U.S. Supreme Court.
ICRW: You co-founded the Women’s Rights Project at the ACLU, which took cases at the very heart of the battle to end gender discrimination in the 1970s. Can you talk about some of those important court cases or moments of your work at the WRP?
Justice Ginsburg: The world was different in the 1970s. The statute books of both the nation and the states were riddled with gender-based classifications. The classifications reflected the notion that men and women inhabit separate spheres — men’s sphere was the wide world, women’s was the home and the children. Our mission (the mission of the ACLU Women’s Rights Project) was simple: we wanted to end every overt gender-based classification, first by getting legislatures to change and if the legislature didn’t change, then we would seek change through litigation. It was an effort to make our laws neutral.
The cases we litigated illustrated the problem. The first was Reed v. Reed, a contest between divorced parents of a boy named Richard Lynn Reed. When the boy was an infant, and in his early years, the family court gave the mother custody because the child was then, legally speaking, “of tender years.” The father asked to be appointed custodian when the boy reached his teens because, the father argued, he now needed to be “prepared to take his place in a man’s world.” The court agreed. While in his father’s custody the boy became depressed, took out one of his father’s many guns and committed suicide. Sally Reed, the mother, wanted to be appointed administrator of her dead son’s estate — not because there was any economic benefit for her, but for sentimental reasons. The father, perhaps out of spite, also applied to be appointed administrator some days later. The judge told Sally he was required to appoint her ex-husband because the Idaho law in point read: “As between persons equally entitled to administer a decedent’s estate, males must be preferred to females.”
That law had been on the books for a long time. It dated from the era before Married Women’s Property Acts were passed. Before passage of those Acts, married women could not enter contracts in their own name, they could not sue or be sued in their own name, they could not hold property in their own name. So all things considered, if you had a choice between an able man and a woman disabled from even signing a contract, naturally you would prefer the man. The male-preference statute was a holdover from the early 19th century. It was that kind of statute we wanted to remove from all the statute books.
To give a fuller picture of the effort, I will mention one case in which a man was the plaintiff, Weinberger v. Wiesenfeld. Stephen Wiesenfeld’s wife Paula was a high school teacher; she had a healthy pregnancy, but when she gave birth — to a healthy baby boy — she died of an embolism. Stephen Wiesenfeld vowed he would be the primary caretaker of the child, working only part time until his son was in school full-time. He applied for social security benefits to help him do just that. The law at the time gave benefits to the spouse of a deceased wage earner who has a child in her care — they were labeled “mothers’ benefits” not “father’s benefits.” We looked at it from the viewpoint of the woman as wage-earner, as Paula Wiesenfeld was: she paid the same social security taxes as her male co-workers paid, but the government didn’t provide her family the same benefits it would provide the family of a man. The man was seen as breadwinner, the woman, as homebody and caregiver. We wanted to eliminate such classifications so that people could be free to develop their God-given talents, without artificial restraints.
In one sense the mission was easy. Overt distinctions in the law were clear targets. By the end of the 1970s, almost all those laws were made gender neutral.
We’ve come a long way in cementing equal rights for men and women, but our work is certainly not done. What do you view as some of the greatest challenges that remain, both in terms of ending discrimination against women and girls in the U.S., but also around the world?
I would say that in industrial societies the major challenges are unconscious bias and work-life balance. Concerning unconscious bias, I use the example of the symphony orchestra. When I was growing up, I never saw a woman in a symphony orchestra, except perhaps playing the harp. The people conducting auditions and the music critics said they could tell the difference between a man and a woman performing. Someone had the brilliant idea of testing that notion by putting the people who were auditioning behind a curtain, so the testers couldn’t see if the musician was a man or a woman. With that simple device, symphony orchestras began to include women, not only as harp players or one-at-a-time curiosities, but as full members. Unconscious bias is hard to counteract. You can’t duplicate the dropped curtain in every workplace.
The other large problem is often called the work-life balance. How do we get employers to change the workplace for both men and women, so that it’s possible to have both a family life and a work life?
In the wide world, women encounter many deplorable conditions and traditions. I would put my money on education. Educate girls so they can do whatever their God-given talent allows them to do. Think of all the women who might have been great scientists, great mathematicians, great musicians and artists, but they never had the chance. Education, I think, is the key to women’s access to the benefits men enjoy.
In Ledbetter v. Goodyear Tire & Rubber Co., you read your dissent from the bench, highlighting that discrimination often happens in small increments over large periods of time, including when it comes to equal pay. How are laws instrumental — and where do they fall short — in blocking such incremental discrimination against women?
The law is not going to be effective in accomplishing change if society is not in favor of the trend. I consider myself fantastically lucky: women from the beginning of the nation, from Abigail Adams on, were making the same arguments I made in the 1970s, but society wasn’t prepared to listen. By the 1970s, conditions had so changed that society was ready to listen. Essentially, the courts put a stamp of approval on societal changes that had already occurred.
The first Title VII [of the Civil Rights Act of 1964] gender discrimination case to come to the Supreme Court was Ida Phillips v. Martin Marietta Corporation. The plaintiff was a woman who had pre-school aged children. Martin Marietta refused to hire mothers of pre-school children in their plant. Fathers were okay. Martin Marietta denied the charge of discrimination. Most people who worked at the plant were women, the company pointed out. They shut out only mothers of pre-school children. That case was litigated and brought to the Supreme Court, not by the ACLU but by the NAACP Legal Defense Fund. Ida Phillips was a white woman, but the NAACP saw how important a right decision would be for African American women who had no choice but to work outside the home. So rather than seeing women’s rights efforts as detracting from efforts to promote racial equality, the Ida Phillips case is a good example of how combatting discrimination against one group can aid other disadvantaged groups.
The current Supreme Court has more female Justices than it has had at any other time in its history. Has this made a difference in the tenor of the Court or its rulings?
I think it has made an enormous difference in the public perception of the Court. The worst time for me was when I was the lone woman. When Justice O’Connor retired, the image was altogether wrong — eight men, most of them well-fed, and one small woman. Now we’re three and we’re all over the bench. I’ve been around so long I sit towards the middle, Justice Kagan sits on the left end, Justice Sotomayor on the right. It looks like women won’t go away, they are here to stay. My new colleagues, Sotomayor and Kagan, are not shrinking violets, they are actively engaged in the colloquy that goes on during oral arguments. The school children on the ten-minute line that weaves in and out of the courtroom get to see that women are part of the Supreme Court, a conspicuous part, and that’s all to the good. A little girl might say, “When I grow up, I want to be a Supreme Court justice.” That is something women of my generation could not even dream about.
A fine judge on the Minnesota Supreme Court once said: “At the end of the day, a wise old man and a wise old woman will reach the same judgment.” In the main, I agree. But it’s also true that we bring to the table life experience that our male colleagues lack. If a person is of a different race, that background will be brought to bear as well.
We have helped our colleagues to understand some things that might not have been apparent to them. For example, Safford Unified School District #1 v. Redding involved a 13-year old girl who was strip-searched because she was suspected of concealing prescription drugs (ibuprofen, as it turns out). She was humiliated. Her mother was outraged and commenced a lawsuit against the school district. During oral arguments, there were some jokes about boys undressing in front of each other in the locker room. I called attention to the fact that a 13-year old girl is not the same as a 13-year old boy. She is at a vulnerable age. Adolescent girls are self-conscious about their bodies. The comparison to adolescent boys doesn’t work. At once, my male colleagues, most of whom had daughters, recalled what 13-year old girls are like.