September 21, 2020

In celebration of Ruth Bader Ginsburg

By Marty West, Professor Emerita

(Remarks delivered at a Sept. 19 vigil in Davis honoring Justice Ginsburg’s life and legacy)

We are here tonight in Davis Central Park to celebrate the life of Justice Ruth Bader Ginsburg. She has always been a part of my professional life and our lives have intersected many times. I will miss her.

In fall 1971, when I was beginning my second year of law school at Indiana University in Bloomington, Ruth argued and won her first case in the U.S. Supreme Court. The case was Reed v. Reed, and she convinced the Court to rule, for the first time, that a sex-based classification in a law violated the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court ruled that Idaho’s law automatically preferring a father over a mother as the executor of a child’s estate was unconstitutional.

In the fall of 1972, when I was a third-year law student, I went to a conference at Yale on how to create a law school course on Women and the Law. Ruth was there with her co-author Herma Hill Kay, law professor at UC Berkeley. They were the first ones to publish a law school textbook on sex-based discrimination.

As the founder of the ACLU Women’s Rights Project in New York in 1972, Ruth had been pleased with the result in Reed v. Reed, but really wanted the Court to find that a sex-based classification created a “suspect class,” mandating the highest level of judicial review, the same level of review given to a classification based on race. So Ruth tried again.

In 1973, Ruth argued Frontiero v. Richardson, involving a woman in the Air Force and her right to claim dependent’s benefits for her husband. The Court ruled in Ruth’s favor, and she got four members of the Court to agree with her that a sex-based classification created a “suspect class” subject to the most stringent judicial review. However, she did not get that fifth vote needed to adopt the higher standard.

That same year, 1973, I published my student law review article on the sex-based classifications in the Social Security system. I cited a lower-court case, then pending, brought by Ruth and the Women’s Rights Project: Weinberger v. Wiesenfeld. That case challenged the denial of any father’s benefits when a mother, covered by Social Security, died leaving young children. Ruth won the case before the Supreme Court in 1975, and the Court actually cited my law review article in the footnotes!

Ruth’s genius was demonstrated by her decision in these two cases to pursue fact patterns where striking down the sex classifications would benefit men, not women. Arguing before nine men on the Supreme Court, she wanted to find examples they could possibly identify with. She continued to follow this policy throughout the 1970s.

In 1976, I was the treasurer of the Equal Rights Amendment campaign in Indiana. We were the last state to ratify the ERA before the time expired, leaving the amendment three states short. Our ERA campaign got financial and other support from the ACLU Women’s Rights Project in New York, still headed by Ruth Bader Ginsburg.

In 1980, Ruth was appointed by President Carter to the federal Court of Appeals, joining the District of Columbia Circuit.

In 1982, I joined the faculty of the UC Davis Law School.

Justice Ginsburg took her seat on the U.S. Supreme Court in 1993.

In 1994, I received an invitation from Professor Herma Hill Kay, then dean of the UC Berkeley Law School, to join her as co-author of the law school textbook, Sex-Based Discrimination. Herma had been producing new editions by herself ever since Ruth had gone on the federal bench in 1980, but Ruth had been urging her for some time to get help. At some point, Ruth sent me a note, thanking me for agreeing to be Herma’s co-author. Herma and I published three more editions of the textbook over the next 12 years.

In 1996, Justice Ginsburg authored the Supreme Court opinion in U.S. v. Virginia, finding that the exclusion of women from the Virginia Military Institute, a public university, violated the Equal Protection Clause. She relied on all those cases she had litigated in the 1970s overturning sex-based classifications and got as close as she could to “strict scrutiny” of a “suspect class.” She labeled the level of judicial review as “skeptical scrutiny” for sex-based classifications. Five other justices joined her majority opinion.

In 2006, I was in Washington, D.C. on sabbatical. I called up Justice Ginsburg’s office and asked if I could sit in on a couple of oral arguments. I got to sit in the “family” section of the chambers, in Marty Ginsburg’s seat, and after the first set of oral arguments, the guard escorted me up to Justice Ginsburg’s office. We had a very pleasant fifteen-minute conversation. That was the last time I saw Justice Ginsburg.

I retired from the law school in 2007, and retired from teaching Gender and Law in Women’s Studies in 2012.

But, of course, Justice Ruth Bader Ginsburg never retired.

In the 1970s, Ruth Bader Ginsburg was responsible for developing the law of constitutional Equal Protection which has benefited all of us ever since. We owe her our deepest gratitude.