Starting at zero When Marshall began challenging segregation in the 1930s, the Supreme Court had rejected some forms of racial discrimination even though it had upheld segregation. When Ginsburg started her work in the 1960s, the Supreme Court had never invalidated any type of sex-based rule. Worse, it had rejected every challenge to laws that treated women worse than men. For instance, in 1873, the court allowed Illinois authorities to ban Myra Bradwell from becoming a lawyer because she was a woman. Justice Joseph P. Bradley, widely viewed as a progressive, wrote that women were too fragile to be lawyers: “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” And in 1908, the court upheld an Oregon law that limited the number of hours that women – but not men – could work. The opinion relied heavily on a famous brief submitted by Louis Brandeis to support the notion that women needed protection to avoid harming their reproductive function. As late as 1961, the court upheld a Florida law that for all practical purposes kept women from serving on juries because they were “the center of the home and family life” and therefore need not incur the burden of jury service.
Rubén Castillo is partner litigation practice group and chair, Akerman Bench Akerman LLP; and former chief judge for the federal district court of northern Illinois.
"Justice Ruth Bader Ginsburg was a national treasure who left many enduring legacies in the law. Her vision of equality for America deeply seeded several generations of lawyers who will now carry on her torch of equal justice. I am proud to be one of the countless attorneys and judges who were inspired by the life of Ruth Bader Ginsburg."
The probate judge appointed the father as required by state law. Sally Reed appealed the case all the way to the Supreme Court. Ginsburg did not argue the case, but wrote the brief that persuaded a unanimous court in 1971 to invalidate the state’s preference for males. As the court’s decision stated, that preference was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the 14th Amendment.”
Ginsburg followed Marshall’s approach to promote women’s rights – despite some important differences between segregation and gender discrimination.
Two years later, Ginsburg won in her first appearance before the Supreme Court. She appeared on behalf of Air Force Lt. Sharron Frontiero. Frontiero was required by federal law to prove that her husband, Joseph, was dependent on her for at least half his economic support in order to qualify for housing, medical and dental benefits.
lowed only to widows. The Florida courts ruled against him.
Segregation rested on the racist notion that Black people were less than fully human and deserved to be treated like animals. Gender discrimination reflected paternalistic notions of female frailty. Those notions placed women on a pedestal – but also denied them opportunities.
If Joseph Frontiero had been the soldier, the couple would have automatically qualified for those benefits. Ginsburg argued that sex-based classifications such as the one Sharron Frontiero challenged should be treated the same as the now-discredited race-based policies.
Ginsburg, working with the national American Civil Liberties Union (ACLU), stepped in after the local affiliate brought the case to the Supreme Court. But a closely divided court upheld the exemption as compensation for women who had suffered economic discrimination over the years.
Either way, though, Black Americans and women got the short end of the stick.
By an 8–1 vote, the court in Frontiero v. Richardson agreed that this sex-based rule was unconstitutional. But the justices could not agree on the legal test to use for evaluating the constitutionality of sexbased policies.
Despite the unfavorable result, the Kahn case showed an important aspect of Ginsburg’s approach: her willingness to work on behalf of men challenging gender discrimination. She reasoned that rigid attitudes about sex roles could harm everyone and that the all-male Supreme Court might more easily get the point in cases involving male plaintiffs.
Challenging paternalistic notions
Ginsburg started with a seemingly inconsequential case. Reed v. Reed challenged an Idaho law requiring probate courts to appoint men to administer estates, even if there were a qualified woman who could perform that task. Sally and Cecil Reed, the long-divorced parents of a teenage son who committed suicide while in his father’s custody, both applied to administer the boy’s tiny estate.
Strategy: Represent men In 1974, Ginsburg suffered her only loss in the Supreme Court, in a case that she entered at the last minute. Mel Kahn, a Florida widower, asked for the property tax exemption that state law al-
She turned out to be correct, just not in the Kahn case. Ginsburg represented widower Stephen Wiesenfeld in challenging a Social Security
CENTER: Ruth Bader Ginsburg, by Everett Raymond Kinstler, 1996. Oil on canvas. National Portrait Gallery, Smithsonian Institution; gift of Everett Raymond Kinstler. © 1996 Everett Raymond Kinstler. CENTER, Right: RBG and Marty with their daughter, Jane, 1958. Collection of the Supreme Court of the United States. BOTTOM, Right: Ari Richter, RBG Tattoo II, 2018. Pigmented human skin on glass. Courtesy of the artist.
