For most young women and men in America today, the gender divide of the 1970s would be unthinkable. This is due in large part to Supreme Court Justice Ruth Bader Ginsburg, the legal architect of women’s rights, whose passing this week has been mourned by American progressives and moderates alike.
Back in 1956, when she was the ninth woman in a class of 500 men at Harvard Law School, the Dean of the Law Faculty asked the smattering of female students how any of them justified taking a place that could have been filled by a man.
A giant of judiciary intellect and feminist courage, Bader Ginsburg got even by “levelling out the playing field.” This was how she described her fight for the rights of all those who never got to enjoy America’s constitutional promise to represent “We the people” – including women, African-Americans, native-Americans, ethnic minorities and the LGBTQ community. Only by extending those rights into written law could America create, in her words, “a more perfect Union.”
But today, twenty-seven years after President Bill Clinton appointed her to the Supreme Court, the female percentage of federal judges in the US is at 36%, and only four women out of 21 senators sat on the judiciary committee in 2018 examining allegations of sexual assault against Supreme Court nominee Brett Kavanaugh.
Women’s legal rights
For that reason, as well as today’s under-representation of women and minorities in senior and executive positions in countless professions, Ruth Bader Ginsburg’s passing sadly does not symbolise the pivot to a sacrosanct set of values and protections that ensure women’s standing and autonomy in society.
She feared this, which goes to explain why she opposed the momentous 1972 Roe v Wade ruling that supported women’s legal right to an abortion. Against a thumping backlash of feminist criticism, Bader Ginsburg argued that a one-off victory on the grounds of a woman’s right to privacy, rather than incrementally securing the right to abortion within the “equal protection of the laws” to all citizens under the US Constitution’s 14th amendment, would leave the decision open to being overturned.
Her prescience and her role as the great dissenter are just some of the reasons why we mourn the death of this extraordinary woman. But once again, her passing is another reminder that the norms and legal rights giving women, gays and non-binary individuals autonomy and agency remain very fragile.
So long as women in their millions, in America and throughout the world, continue to suffer sexual violence, yet are denied full rights over their sexual and reproductive health, then Bader’s legacy sits on a melting permafrost.
Women working as supermarket staff, teachers and frontline healthcare workers became essential first responders to the COVID-19 crisis. They scrambled to work online, trying to balance homeschooling, caring for older dependents and domestic chores. They incurred increased levels of domestic abuse and sexual assault. Yet, some US lawmakers seized this precise moment to roll back hard-fought legislation over women’s rights to their reproductive and sexual health. Texas and Ohio both temporarily banned abortion by classifying it as a non-essential procedure.
Today’s world is not a million miles from what Bader Ginsburg called the days of “pre-Title VII” (anti-discrimination law), in which employers were open and upfront about not wanting to hire women. This conscious bias resides among some of those in the current US Republican political leadership, whose misogynist slurs too often reveal their outrage, petulance or inability to fathom that a woman – any woman regardless of age, class or ethnicity – can stand as an equal and challenge their views.
There may be hope for Bader Ginsburg’s legacy; President Trump did not win the popular vote in 2016, and his Senate coalition doesn’t represent a popular majority either. But there is despair too, in the fact that an electoral minority in one of the world’s strongest democracies can hold progressive values to ransom.
So, for now, Bader Ginsburg’s legacy remains aspirational and a warning against complacency over future reversals to decisions she worked so hard to achieve.
The same is not true for her personal legacy. She demonstrated a lifelong commitment to and enjoyment of her family and career alike. Her long pauses following an interviewer’s question guaranteed thoughtful and non-defensive responses, and her approach to dissent never sought to jeopardise, in her words, “collegiality or public respect for and confidence in the judiciary.” A testament to this was her lifelong friendship with arch-conservative Supreme Court colleague, Antonin Scalia.
For now, Bader Ginsburg’s legacy remains aspirational and a warning against complacency over future reversals to decisions she worked so hard to achieve.
In his tribute to Bader Ginsburg, Chief Justice John Roberts, said, “We at the Supreme Court have lost a cherished colleague…we mourn, but with confidence, that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.” But that justice remains partial, so long as it fails to uphold the humanitarian values of fairness for all, un-predicated on structures of masculine primacy.
In the 2000 contested election result of George W. Bush v. Al Gore, Bader Ginsburg objected to the Supreme Court’s majority decision to halt the recount in Florida. The decision that a constitutionally adequate recount was impractical led her to dissent on the grounds that: “Such an untested prophecy should not decide the Presidency of the United States.”
We will miss everything about her, including once again, her prescience.