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Saturday 20 April 2019
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What Makes the Supreme Court’s Ruth Bader Ginsburg Notorious?

Lisa Smith Presta is a trial attorney and Chair of the Insurance Litigation Department at MacDonald Illig. Her experience includes the handling of complex, multiparty litigation involving commercial disputes, breach of contract claims, fiduciary obligations, and professional services. Sheis also a member of the firm’s Commercial/General Litigation Practice Group and Labor & Employment Practice Group.

Jamie R. Schumacher is an associate in the Litigation Department at MacDonald Illig where she concentrates her practice in the areas of commercial litigation, employment litigation, and insurance defense. She is also a member of the firm’s Commercial/General Litigation Practice Group and Labor & Employment Practice Group.

On the subject of the 2015 book Notorious RBG and the 2018 biographical drama On the Basis of Sex, many can agree — men and women, conservatives and liberals — that 85-year-old Ruth Bader Ginsburg’s current status as a “hip, contemporary icon” was unexpected. But maybe it shouldn’t have been. Appointed in 1993 as only the second female justice of the U.S. Supreme Court, Ginsburg has been fighting the odds for decades.

A product of a low-income, working class neighborhood in Brooklyn, Ginsburg made her way to Harvard Law School, where she was one of eight women in her class of 500. The women were chided by the Dean for taking the places of qualified males. Undaunted, Ginsburg became the first female member of the prestigious Harvard Law Review and, after moving to New York City with her husband and young family, graduated from Columbia Law School in 1959, first in her class.

Ginsburg encountered discrimination while seeking employment after graduation and spent much of her legal career as an advocate for gender equality — for both sexes. She participated in numerous cases before the Supreme Court, including:

Reed v. Reed (1971) came before the Court because the Idaho Code stated men must be preferred over women when naming administrators of estates. The Court held that the Fourteenth Amendment prohibited this differential treatment because it denied equal protection.

• In Weinberger v. Wiesenfeld (1975), Ginsburg successfully argued that a gender-based distinction of the Social Security Act unlawfully discriminated against a widower by denying him the same survivor’s benefits while caring for minor children as it would to a widow.

• Craig v. Boren (1976) was the landmark decision that established a new standard — “intermediate scrutiny” — for classifications based upon gender. Oklahoma’s law denied the sale of beer to individuals based upon gender (female age 18, male age 21). This was ruled unconstitutional.

• Duren v. Missouri (1979) came before the Court because Missouri law permitted women to be exempted from jury duty upon request. Ginsburg argued this led to systematic exclusion of women from jury pools, which were then not representative of a defendant’s peers. The Supreme Court agreed.

As a judge, Ginsburg generally favors caution and moderation. She is considered part of the Supreme Court’s moderate-liberal block, presenting a strong voice in favor of gender equality and the separation of church and state. In 1996, she wrote the Court’s landmark decision in United States v. Virginia, ruling that the state-supported Virginia Military Institute could not refuse to admit women.

In December 2018, Ginsburg underwent cancer surgery. She is currently cancer-free and returned to the bench in February.

Ginsburg’s husband Martin, a tax attorney, died of cancer in 2010. She described him as her biggest booster and “the only young man I dated who cared that I had a brain.” Married for 56 years, they were said to be quite different: Martin gregarious and entertaining, while Ruth was serious and shy. About their successful union, Martin was once quoted: “My wife doesn’t give me any advice about cooking, and I don’t give her any advice about the law.” The day after Martin’s death, Ginsburg was at work at the Supreme Court for the last day of the 2010 term.

Notorious, indeed.