Justice Ginsburg’s death has caused a political storm in the US. President Trump plans to fill her seat with a loyal, woman conservative. That will be a tragedy

The tenure of former US President Bill Clinton can best be described as tumultuous. The jury is out regarding many of his decisions except one: The nomination of Justice Ruth Bader Ginsburg as an Associate Justice of the US Supreme Court in 1993. Both, supporters as well as detractors, of Justice Ginsburg do converge on the fact that her tenure was one of the most eventful ones in the Supreme Court in the past 50 years. Justice Ginsburg passed away on September 18, after close to three glorious decades in the US top court. Later dubbed the “Notorious RBG”, she was a pioneer of the women’s liberation movement in the US and a significant portion of her life’s work was towards ushering in gender just laws. Ginsburg was inspired by the civil rights movement and saw this feminist activism as its extension and logical successor.

Growing up in the inherently unequal America of the 1940s-1960s with its institutionalised and mainstream sexism, Ginsburg was quickly confronted with the discriminatory system. Despite having served on the Harvard Law Review (considered a symbol of intellectual brilliance) and graduating top of her class at Columbia, no law firm in New York City wished to hire a woman at the time. Similarly, she lost a chance of serving as a Law Clerk to Justice Felix Frankfurter of the US Supreme Court, who unabashedly told her that he wasn’t ready to hire a woman.  

Confronted by this harsh reality, Ginsburg turned to activism. From 1972, she began a close relationship with the American Civil Liberties Union, and co-founded its Women’s Rights Project. Within two years she had taken part in more than 300 gender-related cases. One of her most iconic wins at the Supreme Court was Frontiero v Richardson (1973), which decided that compensation and other service benefits cannot be given differently on the basis of gender alone. The case particularly challenged the service rules of the US Air Force prohibiting husbands of women officers from being listed as dependents for the purposes of housing and other benefits. This was based on the assumption that men are the family bread-winners and women the caretakers. Of the total six cases argued in the apex court by Justice Ginsburg, she won an astonishing five, setting the foundation for a revolution in gender justice-oriented jurisprudence, which has subsequently been emulated across the world.

In her attempts to persuade an all-male Supreme Court, Ginsburg focussed on male applicants. This strategic litigation allowed her to confront the justices with the harmful effects of gender discrimination on men such as themselves. Winning their empathy in this manner, she managed to shake the foundations of the sexist system to the advantage of both men and women.

Ginsburg also landed several teaching positions and became the first woman tenure lecturer at Columbia University. Subsequently, she functioned as a surprisingly moderate federal judge. Her appointment as a Supreme Court Justice was, therefore, met with a great deal of suspicion from feminist activists, who feared that she would not be the most passionate advocate for women’s rights. 

Justice Ginsburg proved them wrong. Her years at the apex court were characterised by her staunch belief in gender equality and her support for LGBTQIA+ and minority rights. She was the author of the majority opinion in US vs Virginia, wherein the court struck down as discriminatory the practice of male-only admissions in the Virginia Military Academy. This judgment revolutionised the US Constitution’s “equal protection of laws” clause (14th Amendment) by adding equality on the basis of gender to the traditional interpretation of equality on the basis of race. Referring to the apex court’s decision in Brown vs Education Board of Topeka, Ginsburg stated that if racially segregated schools were declared unconstitutional, then so should separate military academies for women for they would not impart the same level of military training as the male ones. Justice Ginsburg’s verdict in the Virginia Military case in particular served to be a great inspiration behind the Indian Army permitting the commissioning of women officers.

Faced with a conservative-leaning Supreme Court, Justice Ginsburg often had to turn to dissenting opinions as well. She famously disagreed with the majority’s view in Bush vs Gore that the manual vote recount for the presidential election ordered by the Florida Supreme Court was unconstitutional. In Shelby County vs Holder, the majority held the federal pre-clearance for changes in the voting laws of States with a history of racial discrimination to be unconstitutional. Justice Ginsburg vehemently protested, stating that this pre-clearance effectively protected against racial voting discrimination and that the judgment resembled “throwing away your umbrella in a rainstorm because you are not getting wet.” Some of her other influential dissents dealt with issues such as gender workplace discrimination and reproductive health.

Justice Ginsberg’s death has caused a political storm in the US. President Trump plans to fill Ginsburg’s seat as soon as possible by replacing her with a woman, loyal and conservative candidate. This would present the conservatives with a “super majority” in the apex court. Democrats met this news with a wave of protests and called to postpone any nomination until after the presidential election in November. Such a super majority would put the right to abortion, among others, on a shaky pedestal. A part of Ginsburg’s legacy in the fight for gender equality could, therefore, be at serious risk of being erased. This is a troublesome testimony that the fight against discrimination in the US has not been won yet, but is on the contrary facing a threat of regression. Regardless, it goes without doubt that Justice Ginsburg’s was one of the most influential figures in the fight for women’s rights and liberal thought in the US. Her highly respected, brilliant mind will be missed in these times of growing insecurity.

(Manubarwala is the incumbent Global Peace Ambassador to India.  Ghulam obtained a LL.M with a specialisation in human rights from Ghent University, Belgium. Both are  LL.M candidates at the University of Cambridge)