September 21, 2020
By Christina Sandefur
Last week, we said goodbye to Supreme Court Justice and civil rights crusader Ruth Bader Ginsburg, who passed away at the age of 87. Although her career covered many decades and subjects, she will perhaps be most remembered for her work to achieve equality under the law for women between the 1950s and 1970s. In celebrating Justice Ginsburg’s achievements, it’s important to remember how far we’ve come—and to resist succumbing to today’s political pressures to undo her work.
Justice Ginsburg’s achievements as a lawyer and judge are incredible considering that, until relatively recently, states were allowed to exclude women from practicing law entirely. Not even 150 years ago, the U.S. Supreme Court allowed states to ban women from becoming attorneys, because “the harmony . . . [of] the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.” Only 60 years ago, it held that states could require men but not women to do jury duty; women could be excluded from jury pools unless they volunteered.
Many of these barriers were still fully in place when Ginsburg began studying law. She entered Harvard Law School—which did not even have restrooms for women—and became the first female member of the Harvard Law Review. After transferring to Columbia Law School, she graduated first in her class in 1959, at a time when only a handful of women were even enrolled. But even with a prestigious academic record, she struggled to find employment in a legal field dominated by men.
Still, she dug in her heels (throughout her career she’s reminded us that working women don’t have to sacrifice style). After various clerkships and teaching jobs, she became the first female professor at Columbia to earn tenure. And in the 1970s, she took to the courtroom to dismantle discriminatory laws that kept women “in their place,” eventually arguing six successful landmark cases before the U.S. Supreme Court. Only a couple decades later, she was appointed as the second woman on the Supreme Court, where she continued her work to advance equality in an opinion that put an end to Virginia Military Institute’s exclusion of otherwise-qualified women from admission to that public military school.
It may surprise some to learn that Justice Ginsburg spent much of her legal career arguing against rules that favored women at the expense of men. But she was adamant that laws aimed at “helping” women frequently result in depriving them of their freedom of choice. Based “on the notion that women could not cope with the world beyond hearth and home without a father, husband, or big brother to guide them,” she wrote, “the state impeded both men and women from pursuit of the very opportunities and styles of life that could enable them to break away from traditional patterns and develop their full, human capacities.” As she told the justices in an oral argument before the Supreme Court in a case involving the husband of an Air Force lieutenant, who was denied the housing and medical benefits that female military spoused were accorded, discriminatory rules “help keep woman in her place, a place inferior to that occupied by men in our society.” She won that case: The Court held that benefits given by the military to members of military families cannot be given out differently on account of sex.
In arguing that laws that supposedly “helped” women actually deprived them of freedom, Ginsburg shared the view of early 20th century egalitarian feminists, who fought against “protective” legislation that actually singled women out for restrictive and discriminatory treatment. For example, states imposed minimum wages and maximum hour laws on women workers, supposedly to benefit women by ensuring higher pay—but the predictable consequence of those laws was to put many women out of work altogether. At the time, the Supreme Court said it was perfectly constitutional for the government to restrict women’s participation in the workforce, because women’s proper role is to “preserve the strength and vigor of the race.”
Ginsburg’s work attacking the constitutionality of such laws set important precedents and inspired what she later called “a conversation between the Court and the Legislature” that led federal and state lawmakers to repeal or amend “hundreds of laws . . . that classified overtly on the basis of gender.”
Unfortunately, much of that legacy is under attack today, not by old-style chauvinists, but by self-proclaimed feminists who seek more government control over women’s choices, once again in the name of “helping.” Through sex-based employment quotas, compulsory paid parental leave, restrictions on the “gig” economy or home-based businesses, and other legislative efforts that are—as always—portrayed as “helping,” but which actually have the consequence of depriving women of their freedom do decide for themselves what jobs to take, what wages to earn, what hours to work, and what kinds of lives they want to lead. These paternalistic laws are no different in their essential principles than those laws that Justice Ginsburg devoted her career to fighting—that treat women as incapable of negotiating the terms of their employment.
Justice Ginsburg was fond of repeating abolitionist and women’s rights advocate Sarah Grimké’s quote, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” Today, may we carry on her legacy by reminding politicians that women do not need Big Brother to “help” us—we simply need him to get out of our way.
Christina Sandefur is the Executive Vice President at the Goldwater Institute.