Book Review

• Author: CHOO Han Teck LLB (Hons) (National University of Singapore), LLM (Cambridge); Judge of the Republic of Singapore. [T]he conscientious judge will, as far as possible, make himself aware of [his] biases [of character]. Self-knowledge in this respect will prevent the judge from wrongly imagining that his decisions always pronounce universal truths.[1 ]
• Date: 01 December 2015
• Citation: (2015) 27 SAcLJ 264
• Published date: 01 December 2015

THE LEGACY OF RUTH BADER GINSBURG *

Scott Dodson ed

1 Ruth Bader Ginsburg (popularly and affectionately referred to as “RBG”) was once rated by Harry Blackmun J after she presented oral arguments before the Supreme Court as “C+. Very Precise Female”. The letter grades of Blackmun J are, naturally, vague and not very helpful, nor can they be objectively verified. But the quality of precision that RBG impressed him with has become a characteristic attribute of the small, quiet, lawyer who became the 107th Supreme Court judge in 1993, as an appointee of President Bill Clinton. She had been the co-founder of the “ACLU Women's Rights Project”.

2 RBG was born on 15 March 1933. Her marriage to Martin Ginsburg, a tax lawyer, lasted 56 years until he died in 2010. They have a daughter and a son. Martin Ginsburg entered Harvard Law School in 1953 but his studies were interrupted on account of military service. He resumed his studies at Harvard in 1956. RBG also joined him that year. RBG would have been a Harvard Law graduate (which did not admit female law students until 1950) but for her husband's move to New York City. She applied for her final year to be completed at Columbia University but Harvard declined even though it had frequently granted similar requests to its male students. After she had graduated from Columbia, Harvard Dean Albert Sacks offered her a Harvard diploma if she were to renounce her Columbia degree. “I hold only one earned degree, [i]t is from Columbia. I treasure it and will have no other”, she replied.2

3 She practised law for many years before becoming a Professor of Law at the Rutgers School of Law, and then moving on to teach at Columbia University. She was once rejected by Felix Frankfurter J as a law clerk on account of her gender — Frankfurter would not even give her an interview. That episode and her acute sensitivity to the marginalised spurred her to a career in practice and on the Bench, fighting discrimination. Like Sandra Day O'Connor J before her, RBG fought prejudice from her early years — Sandra Day O'Connor once went for an interview for a job as a lawyer but was offered one as a secretary instead. RBG's early life and early career are told in the first two chapters by Nina Totenberg and Herma Hill Kay respectively.

4 It seems implausible, but the Supreme Court had ruled that women had no constitutional right to vote.3 That was in 1875. But it was only in 1971 that the Supreme Court ruled for the first time against arbitrary sexual discrimination in Reed v Reed4 (“Reed”). RBG, as a professor in Columbia, helped with a brief to Allen Derr, counsel to Sally Reed who was fighting to be assigned as an administrator of her son's estate. Her husband whom she divorced challenged her application, telling her that she was “too dumb to handle it”. The problem then was that where several persons were equally entitled to appointment, as was the case of the Reeds, the law provided that “males must be preferred to females”.5 The Supreme Court held that the Idaho Code's preference for males was arbitrary and sent the case back to the State court for determination on the merits.

5 In the years to follow, as counsel and later judge, RBG helped establish through her arguments the simple principle:6

[E]ven when stereotypes about women's behaviour might accurately predict what might be expected from a majority of women, those women who did not fit the stereotype ought not to be ignored or unprotected. [emphasis in original]

Thus, when Antonin Scalia J queried counsel in Flores-Villar v United States,7“How do you separate stereotype from reality?” RBG answered instead, “There are people who don't fit the mold. So a stereotype is true for maybe the majority of women, [but that is not to say] this is the way women are, this is the way men are.”8

6 Despite the progress made, Linda Kerber in ch 3 notes: “Another large question remains: How does ‘equal protection of the laws’ apply to reproductive rights and access to abortion?”9 The long-standing decision in Roe v Wade10 was premised on the right to privacy. RBG's more astute and professorial mind would have preferred that decision to be grounded on the equal protection clause in the Constitution.11 She had taken that approach not only in the Reed case, but subsequently, in the once little known brief that RBG wrote in the Supreme Court case, RBG set out her perception and analysis of the ambit of the equal protection clause in discrimination cases. That brief was written for Struck v Secretary of Defense12 (“Struck”). That case involved a female Air Force officer who refused to have an abortion and was subjected to...