In the 1970s, Ruth Bader Ginsburg co-founded the Women’s Right’s Project of the American Civil Liberties Union where cases steadily began to come in that pertained to employment inequality because of sex discrimination. The WRP would provide Ginsburg with the perfect vehicle to present the arguments for sex discrimination that she felt were being ignored. Specifically, Ginsburg was determined to eliminate “protective” legislation. These laws kept women from full participation in society. When the complaints were made known to the ACLU, they were referred to her, Ginsburg said, “because, well, sex discrimination was regarded as a woman’s job.” Her students prodded her “to take an active part in the effort to eliminate senseless gender lines in the law,”[i]and she was inspired to do so by the women referred to her by the ACLU. At the core of her beliefs about discrimination, Ginsburg believed that it was not helpful to the advancement of women or men to be kept from pursuing careers that once were thought not to be women’s or men’s work. She felt that these laws were the result of stereotyping. She said:
Generalizations about the way women or men are—my life experience bears out—cannot guide me reliably in making decisions about particular individuals. At least in the law, I have found no natural superiority or deficiency in either sex. In class or in grading papers from 1963 to 1980, and now in reading briefs and listening to arguments in court for over 17 years, I have detected no reliable indicator of distinctly male or surely female thinking – even penmanship.[ii]
In 1971 the U.S. Supreme Court decided Reed v. Reed, unanimously overturning a state law that gave men preference over women for appointments as administrators of decedents’ estates. The case centered on a teenager from Idaho, Richard Lynn Reed, who committed suicide. His long separated parents each had custody of him throughout his life. First his mother, Sally Reed requested to be administrator of her son’s estate, and a day later his father requested to be administrator. Idaho appointed the father, Cecil Reed, administrator because, “between persons equally entitled to administer a decedent’s estate, males must be preferred to females.”[iii] Justice Ginsburg reflected back on the selection of cases: “We needed to take cases that would get their attention. The Sally Reed case was a turning point case. Sally Reed, from Boise, Idaho thought that there was something wrong about that and thought that our justice system could right that wrong for her. I gave them examples from lives in a way that they could understand.”[iv]
The bulk of the brief, and the genesis of its title as the “grandmother brief,” was its devotion to the higher purpose of convincing the Court that gender, like race and alienage, encompassed a class of persons who encountered law-sanctioned obstacles without regard to the individual capabilities of members of the group.[v] Although Ginsburg did not argue the case, she was the principal author of the brief. Reed v. Reed was the first gender discrimination victory, ironically handed down on the same day the Senate Judiciary Subcommittee rejected the House-approved Equal Rights Amendment.[vi] Soon a series of cases would follow that would create lasting impact on gender discrimination in the United States. She explained, “taking a phrase from the California Supreme Court, we argued that the pedestals on which women were placed had become cages.”[vii]
It was at this time that Ginsburg left Rutgers to become the first tenured woman professor at Columbia Law School. From 1972-1980 Professor Ginsburg taught constitutional law, sex discrimination law, civil procedure and half of her time was devoted to her work Women’s Rights Project. At the Women’s Rights Project Ginsburg was carefully selecting cases that would convince the Supreme Court that gender discrimination was similar to race discrimination and generally prohibited by the Equal Protection Clause of the Constitution. The cases were those that raised issues she considered “ripe for change through litigation.” These were mainly employment-related cases that, in her words, “lent themselves to the strategy of sequential presentations leading to incremental advances.” [viii]
From 1972-1979 Ruth Bader Ginsburg argued six cases in front of the United States Supreme Court and she won five of them. In the difficult job of convincing an audience of your position, she says it is imperative to “keep in mind your mission” and that “it is important to keep your audience in good humor.” These were “men of a certain age in the 1970s” she added, describing the then all-male Supreme Court panel. “They did not understand the notion of gender discrimination. Racial discrimination was odious, but women were not in a ghetto, they lived side by side with men.” She knew her persuasion must be nuanced and added that it was “the only approach that would work.”[ix] It was at this time that Ginsburg’s rhetoric took on an enactment quality. Among rhetorical options that bell hooks suggests for “dissemination of theory is enactment.” In her arguments then and as a Supreme Court Justice now, Ginsburg models the “lived practice of interaction” in a “non dominating context” so that her life is a “living example of one’s politics.”[x]
[i]Lynn Gilbert and Galen Moore. Particular Passions: Talks With Women Who Have Shaped Our Times. (New York: Clarkson Potter, 1988), 153.
[ii] Linda Bayer, Ruth Bader Ginsburg: Women of Achievement, (New York: Chelsea House Publishers), 1993, 65.
[iii]Reed, 404 U.S>at 73. Quoted in: Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project. (Xlibris Corporation: 2003, 32.
[iv] Interview with Justice Ruth Bader Ginsburg, August 19, 2010.
[v] Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project. (Xlibris Corporation: 2003, 32.
[vi] Ibid., 39-40.
[vii] Interview with Justice Ruth Bader Ginsburg, August 19, 2010.
[viii] Cowen, 390.
[ix] Interview with Justice Ruth Bader Ginsburg, August 19, 2010.
[x] Karen A. Foss, Sonja K. Foss and Cindy L. Griffin. Feminist Rhetorical Theories, (Thousand Oaks: SAGE Publications, 1999), 85.