Students and faculty reflect on Justice Ginsburg’s passing
From September 23 to 25, masked mourners filled the streets of Washington D.C. to grieve the death of an icon. Justice Ruth Bader Ginsburg, the US Supreme Court’s legendary liberal lioness, passed away at age 87 on September 18. The COVID-19 pandemic could not prevent a global outpouring of love and respect for the late jurist.
Across the border in Canada and at U of T Law, these sentiments were not lost. Individuals across the political and professional spectrum added to the chorus of praise and predicted what the future of the Supreme Court would look like without the “Notorious RBG.” Some commentators lauded Ginsburg’s message of mass mobilization for noble causes, while others dissected how her death could impact the contentious election year political environment, reaching varied conclusions.
Although the halls of law schools are less (physically) rambunctious, students and professors still found space to reflect on Justice Ginsburg’s passing. The Faculty of Law tweeted and then retweeted about her death, and over 100 students reacted to a post about Ginsburg’s death in the U of T Law Virtual Community Facebook group.
The Women & the Law Society said Ginsburg J was a “warrior of justice, and her words have always, and will always continue to stretch beyond the borders of jurisprudence and time.”
This begs a complex question: what made Justice Ginsburg an icon? Why was she the source of memes, movies, and even books about her workout routine?
Looking back on Justice Ginsburg’s legacy, there is not one reason but several for her fame. Her tenacity, brilliant strategic mind, and novel way of re-framing legal problems provide some, but not all, possible answers.
The Jewish Law Student Association (JSLA) highlights Justice Ginsburg’s tenacity, emphasizing how she “overcame continuous hurdles of discrimination not only as a woman, but as a Jewish woman.” Especially as a law student, her persistence feels superhuman. For instance, she persevered in the face of personal tragedy at Harvard Law School, where she was one of only nine women in her class. When Martin, her husband and a fellow law student, was diagnosed with testicular cancer, Ginsburg did not allow them to stop pursuing their legal education. In addition to caring for their young daughter, she attended classes for two, doubling her course load and effectively teaching Martin his third-year class material while completing classes herself. He graduated. She edited for the Harvard Law Review and finished near the top of her class.
Ginsburg’s excellence, and late-in-life elevation to icon, was a product of her deliberative nature, according to Professor Emerita and Director of the International Reproductive and Sexual Health Law Program, Rebecca Cook. Professor Cook suggests that it perhaps lies in her judicial decisions; she was a “very thorough and deliberative writer who brought issues alive with her writing.”
Justice Ginsburg’s approach to litigation was also impressive. Professor Cook highlights Ginsburg’s great skill of how to “reach people where they are.” Professor Cook and the Women & the Law Group point to Ginsburg’s shifting of the focus of discrimination to focus on a topic all-male juries understood: men. Ginsburg brought male litigants, rather than female litigants, in front of all-male, all-white courts. According to Professor Cook, this strategy was a mechanism for Ginsburg to win people over on their terms so “she could bring the court around.”
And come around they did. Ginsburg won five cases out of six in front of the Supreme Court. Frontiero v. Richardson and Reed v. Reed are part of the canon of sex-based discrimination cases that is mandatory reading for 1Ls at American law schools. There was a common thread in Ginsburg cases: laws that discriminated on the basis of sex ought to be unconstitutional. Now they are. Many laws are no longer on the books because of Justice Ginsburg, the American Civil Liberties Union, and countless others’ efforts to rid lawbooks of sex-based discrimination.
The Women & the Law Society also cite Weinberger v Weisenfeld as an area of Ginsburg inspiration. In that case, famously included in the movie “On the Basis of Sex,” Justice Ginsburg represented a widower who was denied survivor benefits under Social Security which permitted widows, but denied widowers, the ability to collect benefits. She won. Women & the Law says that by “winning in part, legal victories for men, [Ginsberg] paved the pathway for women’s rights as well.”
On the bench, Professor Cook notes that Ginsburg’s seminal decision in United States v. Virginia illustrates her approach to the law at its best. Professor Cook argues that the case — which successfully ended Virginia Military Institute’s male-only admissions policy because it unconstitutionally excluded women and re-affirmed a heightened level of judicial scrutiny for sex-based discrimination — represents Justice Ginsburg’s successful efforts to elevate “understanding gender discrimination through stereotypes of women.” In that decision, Professor Cook highlights how she pushed back against stereotypical notions that women were “incapable of being military leaders because they lacked the physical strength required of the military” by challenging an evidentiary record bare of any facts to support that proposition. This decision’s impact was “horizontal,” reverberating in Canada, Europe, and legal scholarship according to Professor Cook. Justice Ginsburg passed away on the eve of the commencement of the Jewish high holidays. According to JLSA, “traditional Jewish belief tells us that those who pass away on Rosh Hashanah are “tzaddiks,” or “righteous ones.” They said “never before has this belief rung so true.” The Women & the Law Society also highlighted Justice Ginsburg’s righteous legacy by saying “she never sought approval nor fame. Ruth Bader Ginsburg was simply herself. She was intelligent, resilient, fiery, and idealistic and those qualities are really what made her […] Notorious.” That legacy will never be forgotten, and her glass-shattering status will follow her in death as much as it did in life, for she was the first woman – and Jewish person – to lie in state. May she always be remembered.
