Ruth Bader Ginsburg and Her Impact on Law

The passing of Ruth Bader Ginsburg on 18 September has deprived the Supreme Court of the United States of one of its keenest minds. Appointed to the SCOTUS by Bill Clinton in 1993, as the second woman ever to sit the bench, Ginsburg’s legal insights helped to steer the country towards major advancements in civil rights. By the time of her death at age 87, Ginsburg herself had become a national symbol for social justice.

Despite the brewing partisan battle over her now vacant seat on the SCOTUS, Justice Ginsburg will be remembered first for her achievements as a lawyer and a judge, and the far-reaching impact they have had on the shape of US law.

A Progressive Icon

Ginsburg was initially seen as moderate in her views, though as the Supreme Court shifted towards the right with President Bush’s nominations of Chief Justice John Roberts and Justice Samuel Alito she became a prominent figure in its liberal wing. Playfully nicknamed “The Notorious RBG” by a law student – a moniker she later embraced – Ginsburg saw her image in popular culture shift from a reserved and soft-spoken junior justice to a staunchly vocal advocate for progress.

The transformation of her image came about in large part due to her dissenting opinions. Though she did not read dissents from the bench any more frequently than her colleagues, Ginsburg’s rejoinders drew acclaim for their incisiveness, as well as their often scathing undertones.

Possibly the most famous of Ginsburg’s dissents was delivered in 2007 in response to Ledbetter v Goodyear Tire & Rubber Co. Lilly Ledbetter’s case, which alleged that she had been paid less than men who shared her position in an Alabama Goodyear Tire plant, was squashed in a 5-4 ruling by the court after finding she had waited too long to file suit. The outcome made it significantly harder for employees to file pay discrimination suits, especially if the pay disparity was not discovered for some time.

“In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,” Ginsburg said, speaking for the minority. “Today’s decision counsels: “Sue early on, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose such a less-than-fully-baked case. If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing ‘too late’”.”

Ginsburg then took the extraordinary step of encouraging Congress to “correct this Court’s parsimonious reading of Title VII” – which they did. The Lilly Ledbetter Fair Pay Act of 2009 was the first piece of legislation signed into law by President Obama, and Ginsburg displayed a copy of it prominently in her chambers.

“In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”

A Gender Equality Advocate

One aspect of Ginsburg’s liberalism that persisted throughout her life was her advocacy for women’s rights. Prior to her appointment as a Justice, Ginsburg experienced sex-based discrimination first-hand during her education and working life, at one point being demoted in her job at a social security office after becoming pregnant with her first child. While working as a general counsel for the American Civil Liberties Union (ACLU) she cofounded the ACLU’s Women’s Rights Project, and delivered her first successful argument before the Supreme Court in 1973 in Frontiero v Richardson by demonstrating that gender discrimination lay at the heart of the case.

Upon joining the SCOTUS, she continued to push for gender equality in all areas, and the victories she achieved would form the bedrock of her legacy. Her eventual triumph in Ledbetter v Goodyear was only one of the successes she achieved for women’s rights. Another groundbreaking example was United States v Virginia, which some analysts now regard as her most celebrated case.

Justice Ginsburg wrote the 7-1 majority opinion – one of her earliest and, at the time, a rare occurrence. She refuted the state-supported Virginia Military Institute (VMI)’s defence of its policy of admitting only qualified applicants who were male, finding it unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The VMI was the last exclusively male public university in the US, and United States v Virginia became a seminal case; with the ruling, the Supreme Court effectively struck down any law that, in Ginsburg’s words, “denies to women, simply because they are women, full citizenship stature”.

Other noteworthy cases followed, such as her emotionally charged dissent in defence of women’s reproductive rights in Gonzales v Carhart and her many repudiations of challenges against Roe v Wade, all of which helped to further cement the place of gender equality in US law. “I ask no favour for my sex,” she once said. “All I ask of our brethren is that they take their feet off our necks.”

A Copyright Scholar

Though it did not earn her as much household fame as her accomplishments for women’s enfranchisement, Ginsburg’s tenure on the Supreme Court was marked by insightful stances on intellectual property cases and support for the rights of content owners.

Speaking with Law360, Notre Dame Law School professor Mark McKenna remarked that Ginsburg was “the most pro-copyright, and the advocate for the strongest and longest protection” out of all the Supreme Court Justices of her time. Her pro-copyright stance transcended the usual political alliances of the Court, often causing her to clash with fellow liberal Justice Stephen Breyer.

Ginsburg’s most influential IP decision came in the Eldred v Ashcroft case, where she wrote the 7-2 majority opinion. The case upheld the Copyright Term Extension Act (CTEA), which extended existing copyrights for 20 years beyond the limits that had previously been allowed under the law. Ginsburg wrote that the CTEA “continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes,” and was therefore a permissible exercise of Congress’s power under the Copyright Clause.

Her final majority opinion as a Justice was given on the landmark United States Patent and Trademark Office v Booking.com BV, wherein she wrote that Booking.com and other “.com” names should be treated as nongeneric, protectable trademarks – clearing the way for a slew of eCommerce companies to have their names trademarked.

An Ally to the Underserved

Though she will likely be most cited as a proponent of gender equality, it would perhaps be more broadly accurate to describe Ruth Bader Ginsburg’s career as a pursuit of justice in all forms. From headline-making events like her siding with the 5-4 majority to legalise same-sex marriage nationwide in Obergefell v Hodges, to less-known efforts like her advocacy for pollution-impacted citizens’ ability to sue in Friends of the Earth Inc. v Laidlow Environmental Services, Justice Ginsburg’s most consistent aim as a judge was to expand access to the courts for groups who were previously denied it. Her remarkable skill secured rights for millions of Americans and ensured that there will be no shortage of new legal talents inspired to follow in her wake.