Monday, May 7, 2018

Advancing RBG’s vision of equality in the Trump Age

  Justice Ruth Bader Ginsburg has spent her career in unwavering pursuit of equality for women. A biopic of her life, now screening across the country, has been released at a pivotal time for all women—particularly for the Millennial women who adopted her as their icon.

  This generation does not know a world without the advances achieved by the woman affectionately dubbed RBG. But as the country faces significant rollbacks of gender equality laws and conservatives relentlessly work to distort the push for greater equality as unfair or “special treatment,” Millennial women are perfectly poised to use RBG’s framework of equality not only to resist such dangerous regressions but also to push progress even further.

RBG’s legacy of equality

  Though RBG’s victories can be attributed largely to her refusal to deviate from the idea of equality as both a legal and political strategy, she has said that she didn’t go to law school with a passion for women’s rights. Instead, she had her own reasons: “I thought I could do a lawyer’s job better than any other.” But even after graduating from Columbia Law School at the top of her class and securing recommendations from the country’s top legal minds, Justice Felix Frankfurter rejected her for a clerkship; he said he wasn’t prepared to hire a woman.

  Subsequently, she was rejected by every firm she interviewed with—setting her on a path toward the activism that would shape her career.

Early efforts promoting gender equality

  In 1972, Ginsburg co-founded the Women’s Rights Project (WRP) at the American Civil Liberties Union (ACLU). The WRP was a systematic effort to improve the judicial system’s treatment of women under the law and set new legal standards for sex discrimination.

  In an important first step toward that goal, RBG wrote the brief for the appellant in the landmark 1971 Supreme Court Reed v. Reed case shortly before the WRP’s official founding. In its decision, the court accepted RBG’s arguments and, for the first time, applied the Equal Protection Clause to women: “To give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

  Ginsburg credited two feminist pioneers, Dorothy Kenyon and Pauli Murray, as co-authors on the brief despite neither directly contributing to the text. RBG’s inclusion of Murray, a civil rights leader who worked at the intersection of sex and race and who published what Thurgood Marshall called “the Bible for civil rights lawyers,” has particular significance today as the discrimination women of color face rightfully moves to the forefront of the public policy debate. Far from simply being polite, Ginsburg was crediting these women’s substantive accomplishments as a key part of her legal argument.

  In the years that followed, Ginsburg continued her work on women’s equality at the ACLU by employing a pragmatic strategy involving both male and female plaintiffs, focusing on the broad theme of equality regardless of the particulars involved in each case—a pursuit in which she was inarguably successful. Appearing before the Supreme Court in six cases, she attacked gender discrimination across the Constitution—securing wins under the Fifth, Sixth, and 14th amendments.

  In short, RBG was part of almost every significant legal victory for women during this era, helping to shape and define the legal concept of equality for women. Perhaps most significantly, her work led to another landmark case in 1976, Craig v. Boren, in which the Supreme Court determined that laws using gender classification were subject to heightened scrutiny under the Constitution—a long-sought goal of feminists and one of the key reasons for the WRP being established. While RBG didn’t argue this case herself, she was a leader in crafting the legal argument and sat at the counsel’s table during oral arguments.

Creating momentum for gender equality outside the court

  But RBG’s work was not restricted to the courtroom. After a Supreme Court ruling that resulted in a significant legal setback on pregnancy discrimination, Ginsburg worked closely with other women’s rights leaders to form a coalition to draft legislation, push public policy forward, and spur Congress to act. Ultimately, this work resulted in the Pregnancy Discrimination Act.

  As part of that campaign, RBG demonstrated in a 1977 New York Times op-ed her practical understanding of why policies must explicitly counter discriminatory practices, as opposed to relying on a neutral legal standard that, in effect, facilitates underlying discrimination: “Anticipating the woman’s withdrawal from the paid labor force when she becomes pregnant, the economy‐minded employer keeps her till then, at the lowest cost, and at the lowest rung of the job ladder.” And, in a direct rebuke of the Supreme Court: “Traditional states of mind about women’s proper work once the baby comes are difficult to abandon, even for gray‐haired jurists.”

RBG’s legacy for Millennials

  These foundational strides forward for gender equality all happened before the first Millennial was born. But while some court observers have criticized her for being too moderate and a “bureaucrat” for some rulings, it is clear that she brought the passion and strategies inherent in her early career to her work as part of the country’s highest court.

  In writing the opinion for the 1996 United States v. Virginia decision, Justice Ginsburg advanced the Supreme Court’s understanding of gender equality by building on her victories as a lawyer, declaring that a policy is unconstitutional when it “denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

  And in her 2007 Ledbetter v. Goodyear dissent, she demonstrated her strong belief in the importance of pushing Congress directly to act when the judiciary fails to adhere to the principles for gender equality that she helped shape. After a divided court interpreted Title VII of the Civil Rights Act so narrowly that it denied the female petitioner’s ability to bring her pay discrimination claims, Justice Ginsburg read her dissent from the bench, designed as a call to action. Criticizing the majority for ignoring “the realities of the workplace” and writing a “parsimonious” opinion, she concluded: “[T]he ball is in Congress’ court.”

  Since—and because of—RBG’s initial victories in the 1970s, women’s power in education and the workplace has grown many times over. Today’s young women experience significantly greater opportunities to achieve gender equality than in generations past. In addition, they also have the legal ability to fight for further improvements.

  It was likely only a matter of time until an appropriate tribute to this inheritance blossomed: In 2013, a young law student started a “Notorious RBG” website. Then, two Millennial women wrote a corresponding book a few years later, and a cult around Ginsburg’s name and her achievements was solidified.

Sustaining RBG’s progress under Trump

  Just a few years later, though, President Donald Trump’s administration began rolling out its initiatives to harm women’s ability to participate fully in the economy in myriad ways, endangering RBG’s successes in advancing equality.

  From rolling back protections for survivors of rape on college campuses to blocking access to women’s health care and eliminating equal pay protections, conservative extremists in power are building on their argument that laws passed to promote equality are instead impermissible “special treatment” that need to be overturned.

  These rapid-fire regressions have brought national attention to the pervasiveness of sexism in the workplace and in caregiving—problems that RBG’s work frequently tackled. Meanwhile, Millennial women entering the workforce are learning firsthand about these issues, which have existed since before Ginsburg began her pivotal work. This context gives them greater deftness in understanding the complex factors at work in gender discrimination and the unacceptable disparities that still exist between young white women and women of color.

  As a result, these women—the most educated generation in U.S. history, with some of the strongest beliefs in the importance of gender equity—are ready to drive long-lasting, positive change. Using a common theme—such as that found throughout Ginsburg’s work—that provides strength and inspiration as a guidepost would serve them well. And as RBG demonstrated throughout her career, women’s rights are most effectively advanced by actively embracing the framework of equality.

  With the federal government stumbling from crisis to crisis and attacks on women’s rights coming from all angles, it can be difficult to keep in mind an overriding principle to ground efforts for progress. But by consciously lifting up RBG’s message of equality—forcefully calling out any distortion of the phrase and steadfastly centering policy debate around its themes—young women will be able to anchor their advocacy in a long tradition of success.


  Ginsburg’s work has used the idea of equality to advance legal and political change for decades. She once stated that she wanted to be remembered as “[s]omeone who used whatever talent she had to do her work to the very best of her ability.” With years in her career left to go, RBG’s talent and legacy is a lesson for young feminists as they continue her fight.

  Millennial women recognized the strength of RBG’s vision when they made her “notorious.” They owe the opportunities they’ve gained to the legal framework she designed. Now, as extremists in power work to end those opportunities, young women can turn RBG’s legacy into a concrete tool for progress. By giving renewed voice to their icon’s vision of equality, they will not only celebrate Ginsburg but also join her in her work.

  About the author: Maggie Jo Buchanan is the former associate director of the Women’s Health and Rights Program at the Center for American Progress and provides expert advice to states and other entities on women’s health and economic security policy.

  This article was published by the Center for American Progress.

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