In memory of Ruth Bader Ginsburg – using the law to champion equality and non-discrimination

14 October 2020
Comment
Ruth Bader Ginsburg Mural, Washington, DC. 2019.

US Supreme Court Justice Ruth Bader Ginsburg passed away last month, 27 years on from being sworn in. Obituaries, special reports and events continue to multiply in memory of a formidable and influential legal mind, who championed equality through her strategic use of the law and politically astute use of judicial office.

Learning from her legacy matters at a time when systematic change is needed to address the backlash against human rights, particularly women’s rights, growing pressures on rules-based global order, the shrinking of democratic space and deepening inequalities worsened by the Covid-19 pandemic.

The political nature of judicial office

Amy Coney Barrett was recently announced as President Trump’s preferred candidate to be appointed to the US Supreme Court. If confirmed, the appointment will reaffirm the conservative leaning of the Court. And ahead of next month’s US presidential election, the deeply political process of appointment to the Supreme Court is thus the subject of heated debate.

Like other high courts, the US Supreme Court is an influential decision-making body that shapes political outcomes. The political and social beliefs of Justices is crucial for politicians aiming to shape the ideational bias within the system of checks and balances.

Once appointed, the life tenure system in the US should enable loyalty to the law and not to the executive branch. But the liberal or conservative preferences of the Justices are widely accepted as determining factors in their appointment, and likely to influence their interpretation of the Constitution.

The pros and cons of different systems of judicial review are a recurring debate in most democratic systems, as the powers of the judicial branch to hold elected office to account is an inherently contested matter of institutional design. Who is appointed to this office, then, is a major political affair.

Breaking gendered barriers in the judiciary

Ginsburg was appointed in 1993 to the Supreme Court under the Clinton Presidency. She was the second female appointment to the high court, joining Sandra O’Connor who was appointed during the Ronald Reagan administration.

While coming from different political persuasions, Ginsburg and O’Connor contributed to breaking gender discriminatory boundaries in the judiciary. In the case of Ginsburg, championing women’s rights and gender equality was central to her legal activism, including in her role as litigator before entering judicial office.

The judicial branch remains one of the most understudied institutions of public office from the perspective of women’s access to decision-making roles.

We know that women remain very under-represented in high courts, and gender barriers remain formidable (which is the subject of current research by ODI and the Christian Michelsen Institute). Given the influential nature of the judicial branch, we need to learn much more about its gender dynamics.

Whether women judges embrace feminist goals or not, achieving gender equality on the bench is important to make progress on inclusion and meaningful access for women to decision-making roles. But discriminatory practices remain prevalent on the bench, and in the legal profession generally.

Strategic use of the law to advance equality

Ginsburg’s legacy (subscription required) is a clear reminder of how strategic use of the law can be a powerful route to achieving transformative social change, both for women and other groups that were represented in her life’s work.

First as litigator and then as adjudicator, she advanced an agenda of equality and non-discrimination consistent with US constitutional principles. Her voice and leadership in the Supreme Court led to milestone decisions on matters of reproductive rights, discrimination in the workplace, equal pay, women’s rights and gender equality. Her principles were applied with equal passion to all forms of discrimination and inequality, including those related to class, race, gender, ethnicity and other inequalities.

Politically smart use of judicial office to achieve change in law and policy

Ginsburg used her authority as a Justice of the Supreme Court to give visibility to and address structural issues of discrimination and inequality as a matter of public debate.

Ginsburg’s political instinct guided her to seek impact in the form of legal change. Her own preference was for incremental but systemic change, whereby litigation and jurisprudence could become building blocks to securing lasting equality gains beyond the cases in point.

She wanted Supreme Court rulings to inform legal change and policy reform and to hold the executive branch to account. Even as the liberal block of the Supreme court diminished, her incisive dissenting opinions (subscription required) aimed to influence the terms of public discussion and of legislative debate on the issues at stake. In one case, this helped pave the way for new legislation on fair pay.

What we cannot take for granted

Ginsburg’s life story is a testament to the value of the rule of law and access to justice in placing constraints on the exercise of power, and creating space for more inclusive and accountable governance.

This is now acknowledged in Sustainable Development Goal (SDG) 16. It is also reflected in recent histories of bottom-up struggles of legal empowerment in middle- and low-income countries, including where judicial review may be weak, or where legal content is discriminatory, or the underlying political settlement is fundamentally exclusionary.

Reflecting on Ginsburg’s legacy is especially important at a time of deepening inequalities and discriminatory politics, when we are facing a backlash on women’s rights and increasingly lax attitudes towards the rule of law in established liberal democracies among high-income countries.

Authors

Senior Research Fellow
Pilar Domingo has a D.Phil in Politics, and has published in the areas of: rule of law and justice [...]