I dearly wanted to talk about Justice Ginsburg last week. But because a family member needed my help it was impossible. There are new issues, but Ginsburg, a Justice who actually believed in justice, is worth a few more words.
Ginsburg was one of the few members of the Court whose legacy as an attorney was as important as her legacy as a justice. Ginsburg often fought for women’s rights by fighting for men’s. Fighting for equal rights is fighting for both. Her insight about how to fight for women’s equality wasn’t obvious and some feminists disliked it. Catherine MacKinnon famously said Ginsburg’s strategy meant getting women what was important for men. But it was doable and created the legal foundation for many feminist advances.
Ginsburg’s battle for women’s rights built on Thurgood Marshall’s battle for equality – his clients just wanted the same rights as other people. And just as Marshall was able to pivot from separate but equal to separate is unequal, Ginsburg was able to pivot from the same rights to equivalent rights, by changing the field of vision. Marshall could eventually argue for the equal right to participate, mingle and network. Ginsburg could eventually argue for women’s health even though men’s and women’s bodies and illnesses differ. The issue could never be which body part we were going to rescue from cancer. She could move on to arguing for jobs and education for women. The law builds on small steps. Without small steps, law often stops short. Ginsburg’s work, running the women’s rights project of the ACLU and fighting for male as well as female clients, brilliantly exposed the inequality of law toward women and made it unacceptable.
Some people think if you’re for women or African-Americans you’re against everyone else. Ginsburg was for justice. On the Court she became a leader in the fight to treat African-Americans equally and for affirmative action to include them despite the segregation, violence and financial abuses that repeatedly took the fruits of their successes away. She also fought for workers’ rights, for the jobs of people injured or fired, for their rights to organize. Ginsburg championed the rights of the nation’s working and vulnerable people, of all colors, backgrounds and gender.
She also understood how the argument for equality can be turned against women as it has been turned against African-Americans, by treating remedies for mistreatment as unequal injuries to everyone else. Some people balk at efforts to create equal opportunities for others but Ginsburg never lost sight of justice for all, understood that the battle for equal concern and respect had never been won, and fought to give everyone the opportunity to contribute to our world to the best of their abilities.
It seems impossible for many people to understand that we are all better off sharing than fighting. We – you, me, the great mass of working people of America and the vulnerable too – are all better off when everybody contributes – the economy, the opportunities, the jobs are bigger and better. Consumers buy more and contribute more. Legal, scientific and commercial breakthroughs benefit us all. Ginsburg’s legacy, like Einstein’s, isn’t limited by gender or faith. Their contributions changed all our lives as well as America’s position in the world.
In Jewish tradition, people live on in memory. Ruth, we’ll never forget you.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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