By Jonny Lupsha, Wondrium Staff Writer
Supreme Court Justice Ruth Bader Ginsburg died earlier this month at age 87. The Supreme Court released a statement saying she died of complications of metastasized pancreatic cancer. Justice Ginsburg was an icon for women’s rights and equality.
An NPR article reporting on Supreme Court Justice Ruth Bader Ginsburg’s death gave an account of her life and accomplishments, explaining her role in the struggle for women’s rights. “For more than a decade, until her first judicial appointment in 1980, she led the fight in the courts for gender equality,” the article said. “When she began her legal crusade, women were treated, by law, differently from men. Hundreds of state and federal laws restricted what women could do, barring them from jobs, rights, and even jury service.”
Justice Ginsburg was just the second woman to serve on the Supreme Court. One of her most famous cases was the 1996 landmark case, United States v. Virginia, in which the Virginia Military Institute was sued for not admitting women. She played a key role in the case at every turn. Her importance as a woman who helped to shape the law—and to the rights of women, in general, in the United States—put her among the ranks of Elizabeth Cady Stanton and Lucretia Mott.
Abolition and Women’s Suffrage
One of the earliest and most prominent reform movements in the United States was that of abolition, with thousands of women among the abolitionists.
“They wrote for the abolitionist press, they distributed pamphlets and circulated petitions, [and] they spoke at rallies—a radical act that was often condemned by the clergy of the day,” said Dr. Richard Kurin, the Smithsonian’s Under Secretary for History, Art, and Culture.
Two leading figures of the abolitionist movement were Elizabeth Cady Stanton and Lucretia Mott, who, according to Dr. Kurin, met in 1840 at the World Anti-Slavery Convention. They were refused entry because they were women.
“Outraged, the two quickly became allies in both the abolitionist movement and the women’s rights movement,” he said. “In 1848, they organized a women’s rights convention at Seneca Falls, New York. There, Elizabeth Cady Stanton delivered a Declaration of Sentiments—a list of grievances and demands modeled on the Declaration of Independence. This list included the demand for women’s suffrage.”
However, the fight for abolition was at the forefront of the nation. The 13th Amendment effectively ended slavery; the 14th Amendment confirmed former slaves’ rights of citizenship, among other things; and the 15th Amendment banned the denial of voting rights based on “race, color, or condition of previous servitude.”
Women would not be guaranteed, on the federal level, the right to vote until the passing of the 19th Amendment in 1920. Ruth Bader Ginsburg was born just 13 years later.
An Exceedingly Persuasive Justification
Justice Ginsburg made exceedingly clever use of intermediate scrutiny—a test that courts use to determine a statute’s constitutionality—in one of her most famous cases.
“The [Supreme] Court’s scrutiny of government classifications based on sex reached another important turning point in 1996, in United States v. Virginia,” said Professor Eric Berger, Professor of Law and the Associate Dean of Faculty at the University of Nebraska College of Law. United States v. Virginia involved the Virginia Military Institute (VMI).
“VMI is a state-run military school that specializes in what it calls the adversative method, which seeks to instill mental and physical in its cadets and impart to them a strong moral code to become citizen soldiers,” Professor Berger said. “At the time, VMI was only open to men. The lawsuit against VMI alleged that the school’s all-male admission policy violated the Equal Protection Clause of the 14th Amendment.”
Virginia argued that first, by being an all-male institute, VMI was actually providing more diversity to the state, since it was the only school with “males only” admission. Second, the school said that its “adversative method” was “unsuitable for women.”
“Writing for the Court, Justice Ginsburg said that to prevail, VMI had to show an ‘exceedingly persuasive justification’ for its action,” Professer Berger said. “What’s interesting about this language is that it appears to ratchet up intermediate scrutiny without exactly saying so. In fairness to Justice Ginsburg, earlier cases involving sex discrimination had used this language.
“Others, however, had not, so this doctrinal test was hardly clear.”
The VMI Decision
Justice Ginsburg didn’t believe that VMI’s claims of offering admission exclusively to men was based in a motive of diversity. As for their second argument, Professor Berger said, she said that VMI’s adversative method may be “unsuitable for most women,” but it was also unsuitable for most men. Therefore, the state couldn’t use generalizations based on gender to deny the educational opportunity to women who would wish to attend VMI.
“Virginia had proposed setting up a separate VMI-like program for women on a different campus,” he said. “In other words, rather than admitting women to VMI, Virginia had offered to create a separate all-female school called Virginia Women’s Institute for Leadership, or VWIL. The Supreme Court rejected this proposal, finding that VWIL would be an inadequate substitute for the VMI experience.”
In the end, the Supreme Court voted eight to one against VMI’s ability to discriminate against applicants based solely on gender. Qualified women were eligible to apply and enroll in the Virginia Military Institute. The only dissenting vote was that of Justice Antonin Scalia, who rarely saw eye to eye with Justice Ginsburg. Interestingly enough, the two remained friends until Justice Scalia’s death.
Dr. Richard Kurin contributed to this article. Dr. Kurin is the Smithsonian’s Under Secretary for History, Art, and Culture. In this position, he oversees most of the Smithsonian’s national museums, libraries, and archives, as well as several of its research and outreach programs. Dr. Kurin holds a BA in Anthropology and Philosophy from the University at Buffalo-The State University of New York. He earned both his MA and his PhD in Anthropology from the University of Chicago.
Professor Eric Berger also contributed to this article. Professor Berger is a Professor of Law and the Associate Dean for Faculty at the University of Nebraska College of Law. He received his BA with honors in History from Brown University and his JD from Columbia Law School, where he was a Kent Scholar and an Articles Editor on the Columbia Law Review.