Ginsburg’s vision led us to a better America. We can do the same.
By Goodwin Liu,
Goodwin Liu is an associate justice of the California Supreme Court. He clerked for Justice Ginsburg during the 2000-2001 Supreme Court term.
If you are looking for inspiration while mourning the loss of Justice Ruth Bader Ginsburg, I recommend her 1993 confirmation hearing. Her testimony provides a master class on our Constitution’s origins and how our nation has grown to become more inclusive and free.
Ginsburg introduced herself as “a Brooklynite, born and bred — a first-generation American on my father’s side, barely second-generation on my mother’s.” “What has become of me could happen only in America,” she said, reflecting on her modest upbringing by parents who lacked the means to attend college. “Like so many others, I owe so much to the entry this nation afforded to people yearning to breathe free.”
Those words resonate with me, an American-born child of Taiwanese immigrants. Our Constitution granted me citizenship years before my parents naturalized. Like the justice and other descendants of immigrants, I profoundly appreciate the faith this country has placed in me.
Throughout her life, Ginsburg repaid that faith by serving our nation and widening its circle of inclusion. She is best known for her work advancing women’s rights. But that work was part of a more powerful whole, a vision of equal citizenship that extended to men, racial minorities, people with disabilities and workers.
Her successes as founding director of the ACLU Women’s Rights Project are memorialized in case law, as is her signature accomplishment on the bench: her 1996 opinion declaring unconstitutional the Virginia Military Institute’s refusal to admit women. “Generalizations about ‘the way women are,’ ” Ginsburg wrote, cannot be used “to create or perpetuate the legal, social, and economic inferiority of women.”
But her approach to gender equality sought to free not only women but also men from stereotyped roles. One of her favorite clients was a man who sought Social Security survivor benefits after his wife’s death so he could stay home and raise their son. The law denied such benefits to widowers on the assumption that wives’ earnings were secondary and insignificant. Ginsburg persuaded the Supreme Court — all men in 1975 — that the Constitution prohibits allocation of public benefits on the basis of gendered breadwinning and caregiving roles.
Ginsburg also understood that the causes of gender equality and racial equality have been intertwined throughout our history. Women’s suffrage, secured 100 years ago, still left Black women and men disenfranchised as a result of poll taxes, literacy tests and other obstacles. At her confirmation hearing, she credited Justice Thurgood Marshall with reminding us that, despite the “blind spots” in the original Constitution, “through a combination of judicial interpretation, constitutional amendment, laws passed by Congress, ‘We the People’ has grown ever larger” to include women and those “once held in bondage.”
One such law was the Voting Rights Act of 1965, which Ginsburg called “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” She wrote those words in a 2013 dissent from a decision invalidating the act’s core mechanism to prevent barriers to minority voting. Striking down the law because it has worked, she said, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
That dissent, perhaps her most famous, parallels a 2003 opinion upholding affirmative action, in which she emphasized that despite the formal end of Jim Crow, “many minority students encounter markedly inadequate and unequal educational opportunities.” Well before today’s protests for racial justice, Ginsburg warned that “conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.”
Discrimination was a topic she knew well. In a 2004 case allowing individuals to sue public entities for failure to provide reasonable accommodations under the Americans With Disabilities Act, Ginsburg observed that the law was intended to advance “equal-citizenship stature for persons with disabilities.” Congress, she said, understood that “including individuals with disabilities among people who count in composing ‘We the People’ . . . would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation.”
[Live updates on Ruth Bader Ginsburg’s death]
In a 1999 case, Olmstead v. L.C., her opinion for the court held that unnecessary institutionalization of people with mental disabilities “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and constitutes discrimination under the ADA. Many disability rights activists consider
Olmstead, in attacking a pernicious form of segregation, to be their Brown v. Board of Education.
Ginsburg’s vision of equal citizenship also extended to the economic sphere. Through her own familiarity with “the realities of the workplace,” she saw employment not only in material terms but also as a source of dignity, belonging and social regard. Her dissent in the case of Lilly Ledbetter, a factory supervisor barred from suing her employer despite being paid thousands less per year than her male peers, prompted Congress to enact new fair pay legislation. Perhaps less well-known are her dissents
objecting to enforcement of arbitration agreements that, in her view, reflect “inequality of bargaining power,” thwart “effective access to justice” and undermine “the well-being of vulnerable workers.” The legacy of those dissents, which also urge congressional action, may be still to come.
I am deeply saddened to lose a cherished mentor and friend. The last time I saw the justice was at a small dinner in February. As usual, she was modest and plain-spoken, unchanged by her years of celebrity. It was not hard to see in her the Brooklynite from an immigrant family who lived out her creed that all people should have “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” That vision led her to make America better and insists that we can too.
Read more: Edith Roberts: Ruth Bader Ginsburg: A ‘precise female’ Nancy Gertner: Ruth Bader Ginsburg was all I wanted to be Eugene Scalia: What we can learn from Ginsburg’s friendship with my father, Antonin Scalia Jennifer Rubin: Justice Ginsburg is gone, but democracy must survive The Post’s View: Ruth Bader Ginsburg spent her life fighting double standards. Republicans should not embrace one to replace her.
