Before she was the Notorious RBG

Posted Thursday, September 24th, 2020 by Gregory Forman
Filed under Miscellaneous, Not South Carolina Specific, Of Interest to General Public

I try to keep my politics out of my legal blog and, in the week since United States Supreme Court Justice Ruth Bader Ginsburg’s death, there’s been myriad worthwhile tributes and essays describing her legacy. But one thing I don’t think the general public, or my younger legal colleagues, understand is how influential she was before she became a Supreme Court Justice in 1993.

While attending law school from 1988 to 1991, I took a few classes in which we read cases addressing how the 14h Amendment’s Equal Protection Clause applied to race and gender. In many of the seminal cases of the 1940’s and 50’s dealing with racial inequality, Thurgood Marshall of the NAACP was lead counsel for African Americans seeking equal protection on the basis of race. He was lead counsel in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the best known case addressing racial equality. Yet there were many cases before and after Brown in which Marshall’s efforts dismantled Jim Crow. While Marshall became the first African American Supreme Court Justice in 1967, he remains better known as the attorney who advanced civil rights for African Americans.

What Thurgood Marshall did for African American civil rights Ruth Bader Ginsburg did for women’s rights. In 1972, she co-founded the Women’s Rights Project at the American Civil Liberties Union (ACLU). Before the 1970’s, the United States Supreme Court had never applied the equal protection clause to women. In a string of cases beginning with Reed v. Reed, 404 U.S. 71 (1971) Ginsburg advocated a view of the Equal Protection Clause that granted women equality before the law. Her successes completely changed women’s role in society. These 1970’s decisions remain relevant today. Earlier this month, before her passing, I cited one of those cases, Orr v. Orr, 440 U.S. 268 (1979), in a brief to the South Carolina Supreme Court addressing alimony.

Her elevation to the Supreme Court enabled her to solidify the success of her prior litigation. In her majority opinion in United States v. Virginia, 518 U.S. 515 (1996) , she firmly established her view of how equal protection applied to gender:

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women for particular economic disabilities they have suffered, to promote equal employment opportunity, to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were to create or perpetuate the legal, social, and economic inferiority of women.

Internal citations omitted.

A law student studying equal protection in the 1980’s would have read many cases on race in which Thurgood Marshall was involved. She would also have read many cases on gender in which RBG was involved. Even before she became a Supreme Court Justice, RBG was as instrumental on obtaining equal protection for women as Marshall was in obtaining equal protection for African Americans. Within my own profession the growth of female participation as both lawyers and in leadership positions had grown in the twenty years between Reed and my becoming a member of the bar. It has grown further in the twenty-nine years since I became a lawyer. I’m not sure my young lawyer friends can comprehend how male dominated the law was just a generation ago or how rare female lawyers were two generations ago. RBG’s work as a litigator deserves substantial credit for that change. Had she never become the Notorious RBG, her passing would still be worth commemorating for her 1970’s litigation that led to the Equal Protection Clause being applied to gender.

3 thoughts on Before she was the Notorious RBG

  1. David DeVane says:

    Well stated Greg. Even though I am a conservative I always admired her tenacity and devotion to her ideals. As one commentator said this week she was a “lioness of the law”.

  2. Abigail Duffy says:

    I assure you Greg, the male dominance of this profession a generation ago is not lost on the women who practice now. We still struggle to get the same respect as our male peers. We are often degraded by our male peers as well. RBG gave us the opportunity to take up her causes, and we women lawyers will continue to advance her causes.

    1. Abbey,

      If you read my blog to mean that sexism does not exist in the practice of law, that was clearly not my intent. As I mordantly joked in 2016 (up until November 8th), I was looking forward to Hillary Clinton’s presidency ending sexism just as Barack Obama’s presidency had ended racism. We all see how that joke turned out.

      That said, I would hope the sexism in the legal professional has gotten less bad the past thirty years. My impression is that the female family law attorneys twenty years my senior had it much worse than the female attorneys my age and that female attorneys twenty years my junior have it less bad than my female peers did thirty years ago.

      However, we can all find it disappointing (if also eye-opening) at how intractable racism and sexism have turned out to be. As a husband and father, I’d like to believe love is stronger than hate. As a family law attorney I see way too many counterexamples.

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