Stanford Law Faculty on Justice Ruth Bader Ginsburg’s Legacy

Justice Ruth Bader Ginsburg, the legal icon who is known as the architect of the legal fight for women’s rights in the 1970s, died on Friday, September 18, 2020 at the age of 87. Justice Ginsburg was appointed to the U.S. Supreme Court in 1993 by President Bill Clinton. She was the second woman appointed to the Court, joining Stanford Law alumna retired Justice Sandra Day O’Connor. Justice Ginsburg served on the Court for 27 years. Here, Stanford Law School faculty reflect on her legacy.

Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic
Stanford Law Faculty on Justice Ruth Bader Ginsburg's Legacy
Stanford Law Professor Pamela Karlan

Like Justice Thurgood Marshall before her, Justice Ruth Bader Ginsburg was one of only a handful of modern Justices who would have been a pivotal figure in American constitutional law even if she had never served on the Court. As the director of the Women’s Rights Project at the American Civil Liberties Union, she argued a sextet of cases in the 1970s that served as the foundation for modern sex-equality jurisprudence.  Part of her tactical brilliance was to bring a number of these cases on behalf of men who were disadvantaged by stereotypical beliefs about the proper roles of the sexes.  She knew—indeed, her own marriage to Marty Ginsburg, one of the nation’s most brilliant tax attorneys as well as a chef extraordinaire, showed this—that men and women can play many roles, and that stereotypes constrict everyone’s opportunities. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) and Califano v. Goldfarb, 430 U.S. 199 (1977)—both cases she argued—provided the basis for her opinion for the Court in United States v. Virginia, 518 U.S. 515 (1996), reminding us that the law must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

But Justice Ginsburg was a woman of many parts. To be sure, she will be remembered for a series of important opinions in sex-discrimination cases—among them, in addition to the VMI case, the Court’s opinion in Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), and a dissent in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), a Stanford Supreme Court Litigation Clinic case, that galvanized a congressional response rejecting the Court’s cramped construction of Title VII. But she was long the Court’s go-to Justice for questions of civil procedure—a subject she taught as the first tenured female faculty at Columbia Law School.

The last time I saw the Justice was at the oral argument in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). I was arguing that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “because of . . . sex” prohibits an employer from denying someone a job opportunity for being lesbian, gay, or bisexual. Justice Ginsburg’s was the first question out of the box, and she began, “Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind . . . .” Back in 1964, likely no one in Congress thought lesbian, gay, or bisexual people should be protected. But it was in no small part due to then-attorney Justice Ginsburg’s efforts to combat sex-based stereotypes that our Clinic could win that case today.

Read more from Pam Karlan in this Washington Post piece.

A More or Less Perfect Union: Preview of forthcoming PBS Documentary and Conversation between Michael McConnell and Judge Doug Ginsburg
Stanford Law Professor Michael McConnell
Michael W. McConnell, Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center

Justice Ginsburg was a towering figure in America’s judiciary: a first-rate legal mind and a judicial strategist par excellence, with a passion for civil liberties. She also was a warm and congenial person, shy but quick to laugh and to engage in lively conversation. It would be nice to think that somewhere in the hereafter, she and her friend Antonin Scalia will enjoy an opera together again.


William B. Gould IV, Charles A. Beardsley Professor of Law, Emeritus, and Former Chairman of the National Labor Relations Board
William B. Gould IV
Stanford Law Professor William IV Gould

We got to know each other when we were both visiting at Harvard in ‘71-72, and kept in touch over the years when she was on the DC Circuit and the High Court. We exchanged correspondence and reprints over the years. When I was Chairman of the National Labor Relations Board and living in Washington, Justice Ginsburg arranged for my Chief Counsel and me to sit in her special box whenever there was an oral argument before the Court involving my NLRB. On a personal level, she was kind enough to greet my grandson Joey in her chambers for a warm and cordial chat about many matters.

I am heartbroken about Justice Ginsburg’s death. She was a tower of strength intellectually, the author of powerful and persuasive opinions, frequently bringing to mind the great Holmes-Brandeis dissents a century ago and those of Douglas and Black more recently. One of many great achievements was her dissent in the Lily Ledbetter case involving wage discrimination based on gender. Though she did not prevail, quite dramatically her opinion was subsequently written into law by Congress and President Obama.

Her opinions in my field of labor and employment are for the ages (and I wrote about this in a 2014 article The Supreme Court, Job Discrimination, Affirmative Action, Globalization and Class Actions: Justice Ginsburg’s Term, 36 University of Hawai’i Law Review 371, which was based on a speech I delivered to the Labor & Employment Section of the State Bar of Hawai’i in Honolulu, Hawai’i).Her work fighting against employer devised and controlled arbitration procedures—what she aptly called “unbargained for arbitration”—will live on and may yet become law. Her dissent against the Court’s tragic and improper invalidation of the Voting Rights Act’s principal feature, in which she said that throwing out the law “when it has worked…is like throwing away your umbrella in a rainstorm because you are not getting wet,” is memorable.

The country has lost a figure of historical proportions, a lawyer who brought about change for women much as Thurgood Marshall did earlier for blacks before she ascended to the bench.
I mourn her death and send condolences to her family.

From the Dean 5
Jenny S. Martinez, Richard E. Lang Professor of Law and Dean of Stanford Law
Jenny S. Martinez, Richard E. Lang Professor of Law and Dean

She was, in the words of the Chief Justice, a “jurist of historic stature.” Her pioneering work as a law professor and litigator on some of the most important issues and cases establishing equal rights for women marked her as one of the most significant legal figures of the century even before she was elevated to the bench. Her towering intellect, her passionate commitment to justice under the law, the ways in which she embodied collegiality and the highest norms of the legal profession all made her a role model for so many young lawyers. May her memory be a blessing.

Read more from Jenny Martinez in this Financial Times piece.

Jane S. Schacter, William Nelson Cromwell Professor of Law

Justice Ginsburg’s historic role in shaping the jurisprudence of constitutional sex discrimination law is both singular and secure as a part of her legacy. She was the architect of the Supreme Court’s modern case law on gender and equality, and had the unique role of shaping that law as both an advocate before she joined the Court, and as a justice. Her majority opinion in United States v. Virginia, the 1996 case striking down the Virginia Military Institute’s refusal to admit women, is a particularly significant reflection of her approach.

Jane S. Schacter
Stanford Law Professor Jane S. Schacter

I often play for students the oral argument presented to the Court by “Mrs. Ginsburg” in Frontiero v. Richardson, a 1973 case about a law making it harder for women serving in the military to get certain spousal benefits than it was for male service members. At the time, she was a law professor and lawyer for the ACLU. She wrote an amicus brief in that case arguing that sex, like race, should be a suspect classification and therefore largely off limits for the government to consider in allocating benefits and burdens. Most of the time, amici are not permitted to present oral argument, but she was given time at the podium in this case. It is striking to hear her lucidly and powerfully make the case to the all-male bench that women’s opportunities should not be determined by gender stereotypes. Unlike the male lawyers in the case who argued before and after her, she received no questions from the justices. Listening to the argument, one wonders if the justices knew quite what to do with her arguments. She later said she viewed her role in the case as teaching the justices and giving them a perspective that had probably never occurred to some of them. Her argument was about ten minutes long and it is well worth hearing.

Over the course of her career, Justice Ginsburg taught the country so much about sex discrimination, equality, and a long list of other issues. The icon she became gave her the ability to bring her insights to a wider audience. Justice Ginsburg’s career was one for the ages, and the lessons she taught so many of us will long endure.

Read At the U.S. Supreme Court: A Conversation with Justice Ruth Bader Ginsburg

Deborah Hensler
Stanford Law Professor Deborah Hensler
Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution and Director, Stanford Law and Policy Lab

In popular culture, Justice Ginsburg was usually portrayed as a great liberal. I never regarded the Justice as particularly liberal in the American sense of the word: in cases affecting the business community in comments in oral arguments if not in opinions she often echoed attitudes I associate with conservative lawyer lobbyists. What Justice Ginsburg was truly was a fierce and unswerving advocate of equal rights, from women’s rights to men’s rights to gay rights to transgender rights, and a fierce advocate for voting rights. These fundamental rights are not  “liberal” values, they are bedrock American values, engraved over the doorway of the US Supreme Court, on which Justice Ginsburg served so honorably: “Equal Justice Under Law.”

May her memory be a blessing and inspire all of our students to pursue that goal.

John J. Donohue III, C. Wendell and Edith M. Carlsmith Professor of Law
Public Policy Data with Prof John Donohue
Stanford Law Professor John Donohue

Reflecting on the career of Ruth Bader Ginsburg, one has to marvel at the enormous journey she took from a bright young co-ed at Cornell University at a time when the opportunities for women in the practice of law and in professional life more generally were severely constrained, to a trailblazing advocate and architect of a legal strategy to remove those bonds, to a lucid and insightful liberal icon on the Supreme Court who courageously fought against illness and some of her misguided colleagues with incredible passion and intensity in her enduring campaign for justice and a more perfect union. One must laud the insight of President Bill Clinton in recognizing the unique brilliance and wisdom that RBG would bring to the Supreme Court, where she battled a growing contingent of ideologues of the right as they unwisely weakened important civil rights laws, strengthened the power of baleful influences in electoral politics, and constrained governmental efforts to curtail gun violence.

RBG’s life and death have underscored the importance of the Supreme Court and civic engagement to the quest for social justice and the lives of all Americans. She also showed a wonderfully generous spirit who could enjoy the friendship and unquestionable conviviality of fellow Justice Antonin Scalia, while still fully aware of his severe limitations as a largely misguided jurist.

RBG’s life also reminds us of the complexity of human existence: even the most remarkably commendable and admirable lives of unparalleled achievement and excellence will often take actions that can invite criticism. When President Obama and others signaled that it might advance Justice Ginsburg’s long-term goals to step down to allow Obama to replace her with a younger judge, she responded that this was “a question for my own good judgment,” going on to ask rhetorically, “So tell me who the president could have nominated … that you would rather see on the court than me?”

If she had lived until a Democratic president could appoint her replacement, her judgment and her will would have been deemed remarkable. Having fallen short of this achievement, RBG has at once highlighted the abject hypocrisy of Republican Senate Majority Leader Mitch McConnell in seeking to replace her so close to the election, but has also left it to her supporters and admirers to take the actions necessary to ensure that her decision to rebuff Obama will not be remembered as injurious to the goals she championed.

Suzanne Luban, Clinical Supervising Attorney and Lecturer in Law
Suzanne A. Luban
Suzanne Luban, Clinical Supervising Attorney and Lecturer in Law

Fiery. Pioneering. Heroic. Notorious. How are we to go on without Justice Ruth Bader Ginsberg? How will we see into the wilderness that lies ahead, without the beacon of light she cast? In her comments about the important role of dissenting opinions, Justice Ginsberg left us a signal. Quoting Chief Justice Hughes in 1936, she remarked that “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Just as she never wavered despite the conservative shift on the Court, we cannot indulge the impulse to descend into depressed torpor. As the Court’s most active dissenter over her 27 year tenure, Justice Ginsburg saw her role as passionately showing the way when she believed the Court was heading in the wrong direction. “I will not live to see what becomes of [my dissenting opinions], but I remain hopeful.”

Not only was RBG a visionary to combat discrimination based on sex, she was also a champion of the individual rights of employees, unions, shareholders, and People of Color.  She was naturally anti-racist. When asked if she felt “uncomfortable” sharing the Notorious moniker with Biggie Smalls, she warmly embraced their connection, rebuffing the insinuation that she would not relish being in the same club as a renowned Black gansta rapper.

We must continue in her stead, fiery, hopeful, and unwavering.

Women’s Suffrage at 100: A Celebration of Partial Progress
Faculty photo of Deborah Rhode
Deborah L. Rhode, the Ernest W. McFarland Professor of Law and the Director of the Center on the Legal Profession

No individual did more than Ruth Bader Ginsburg to transform the legal landscape for the better on matters involving gender. The history of American women is one of discrimination on the basis of sex, but not until 1970 did the Supreme Court find that such discrimination was unconstitutional. Its initial decisions were shaped by Ginsburg as the co-founder and litigation strategist of the ACLU’s Women’s Rights Project. During the 1970s, the project brought hundreds of cases challenging gender bias, and Ginsburg herself had five victories in landmark cases before the Supreme Court. She had the wisdom to represent male as well as female plaintiffs, which helped an all-male court understand the injustice of laws based on archaic gender stereotypes that restricted the roles of both sexes. Read the full article here.

Ronald C. Tyler, Professor of Law and Director of the Stanford Criminal Defense Clinic
Ronald C. Tyler 1
Stanford Law Professor Ronald C. Tyler

I grieve the passing of this monumental, transformational figure. Ruth Bader Ginsburg was a courageous champion of justice. Among the opinions I appreciated most was her dissent in the voting rights case, Shelby County v. Holder. She observed that eliminating the preclearance requirement for states with a history of racial discrimination was like “throwing away your umbrella in a rainstorm because you are not getting wet.” The numerous voter suppression measures enacted since then have vindicated her warning.

As a current member of the American Civil Liberty Union’s leadership, I naturally think of Justice Ginsburg’s earlier years as a nonpareil advocate for gender equality when she directed the ACLU’s Women’s Rights Project in the 1970’s. I am proud to be among those carrying on the work of that organization.

As the father of a daughter who is now embarking into male-dominated technology spaces, I long for a new justice who will share Justice Ginsburg’s lucid vision: “Girls should have the same opportunity to dream, to aspire and achieve — to do whatever their God-given talents enable them to do—as boys . . . . That’s what it’s all about: Women and men, working together, should help make the society a better place than it is now.”

Given the current struggles, striking at the core of our democratic society, we need nothing less.