This article was originally published on EUI Times here
Few octogenarian women have inspired such zeal in so many younger women. But fewer still have sat on the U.S. Supreme Court. Ruth Bader Ginsburg may be the second woman to have ever been appointed to the position (in 1993, at the behest of President Bill Clinton), but in recent years she has more famously assumed a cult following as Notorious RBG, an affectionate moniker referring to Notorious B.I.G., the rapper who was killed in 1997.
Ginsburg’s life and career are testament to the massive social transformations experienced by women in America and Europe in the latter half of the 20th century. When she graduated top of her class at Columbia law school, having transferred there from Harvard law school when the dean refused to grant her a degree, she was unable to find a job because law firms were averse to hiring women for anything other than secretarial work. At Harvard she has been one of just nine women in a class of 500.
Bader Ginsburg eventually found work as a co-founder of the A.C.L.U. Women’s Rights Project, bringing cases to an all-male Supreme Court which centred on a simple constitutional premise; that men and women were equal under the law.
She is a trailblazer perhaps by necessity as much as design. A Jewish woman shut out from a society which privileged the WASP male above all others, Ginsburg was one of many who were radicalised by the ‘separate spheres’ hegemon which dismissed women’s capabilities as individuals and denied them the opportunities afforded to men.
In her interview with EUI Times, Bader Ginsburg answers questions sagely and with wry humour, often referring to court cases from decades ago. Tiny in stature, her gaze is kindly but sharp and her replies punctuated with long, thoughtful pauses.
Reflecting on a lengthy career challenging gender discrimination, she is stoic when she speaks about progress made thus far and the hurdles that remain. She tells EUI Times, “There’s still a long way to go but what has come down, is what I call the ‘separate spheres’ arrangement of the laws, and people thinking that, in the words of a Motown opera ‘’That’s the way women are!’’. What is gone for the most part, are the explicit stop signs. Those barriers are gone. The notion is to let people do whatever their God given talent lets them do, and not have any man-made, artificial barriers to stop them from aspiring and achieving.’’
That said, many of the causes Ginsburg has fought for remain deeply unsettled today. In particular, abortion provision has never ceased to be a burning hot potato in both the US and Europe. In Spain in 2014 the government was forced to back-track on proposals to dramatically tighten its abortion laws. And in the US, the number of abortion clinics in some states has dwindled; in five states — Mississippi, Missouri, North Dakota, South Dakota and Wyoming — just one abortion clinic remains. The situation is best exemplified by Texas, which is attempting to pass a law that may close three-quarters of the state’s clinics. The U.S. Supreme Court will rule on the constitutionality of the law later this year.
Ginsburg has long pointed out the class implications of these developments, with sparse abortion provision disproportionately affecting poor and ethnic minority women, who must shoulder the additional financial costs of travel across greater distances.
In her 2016 Ursula Hirschmann lecture at the EUI, given as a conversation with EUI Law Professor Ruth Rubio Marin, responding to a question on the role of courts in initiating social change, Ginsburg offered the view that the Supreme Court is fundamentally a ‘reactive institution’. She does not believe that deep social change can arise alone through the Supreme Court, which after all is ‘an undemocratic body’. As such, she is critical of the landmark Roe v Wade (1973) ruling which enshrined the right to an abortion in the U.S constitution under the 14th Amendment. Firstly because it was based on a right to ‘privacy’ and so is more about a doctor’s freedom to practice than women’s bodily autonomy. Secondly, because it has mobilised pro-life activists to an unprecedented degree and provided them with a single, conveniently identifiable target.
Propelling Ginsburg’s career has been the belief in the reciprocity between gender and race-based discrimination, and the pragmatic faith in the possibility of the U.S Constitution to prevent these. The post-war feminist movement which emerged in the US was bound up closely with the African American civil rights movement which pre-empted it. Both located oppression in structural factors and both used litigation methods to attack inequalities.
This represents a cleavage between the European and American narratives of women’s rights. Ginsburg points out, “one big difference between the experience in Europe and America is that in Europe, it has always been gender not minorities. In the U.S, anti-discrimination law began with race. So the laws were set up to ensure African Americans were not denied opportunities. Women were made part of our famous Title VII law [a federal law that prohibits employers from discriminating against employees on the basis of sex, race, colour, national origin, and religion]. They got into the law as a result of an amendment by a member of Congress from Virginia. He wanted to defeat the law. His notion was if we have women [included], people will realise the law is ridiculous and the whole law will fall. What happened was that the race cases helped the gender cases.’’
Ginsburg stresses the common cause that united African American and white women, both groups labouring against the same fetters. “I will give you an example of the first Title VII case to be brought to the Supreme Court. Ida Phillips against Marriott Co. The company had a rule; we won’t hire mothers of preschool children. That case was taken up by the NAACP [National Association for the Advancement of Coloured People]. The plaintiff was a white woman but the NAACP realised that striking down that kind of restriction would be enormously beneficial to African American women in the job market. So breaking down the traditional separate jobs for men and women has been very helpful to all women.’’
But the women’s liberation movement of the 1970s aimed at more than just the dissolution of the separate spheres ideology. So can feminism still make the radical critique it once did? Can it still invoke the emancipatory vision of social relations it once looked towards? Ginsburg replies with uncharacteristic promptness. “Yes, I think it holds most hope for the world, if countries allow women to do whatever their God given talent enables them to do. I think we will all be better off if women can contribute.’’
Ginsburg is a firm believer in an inherent solidarity between women; women at the top should fight for women at the bottom so that all (including men) will ultimately reap benefit. She falls short of making overt criticism of a system which imposes the inequalities between women in the first place. In this, it is possible to find the lingering residue of the aspirations of liberal second wave feminists in America. But in the 2010s, when women increasingly occupy the elite positions in corporate hierarchies that were once denied to them, and can therefore be considered complicit in the economic oppression of women beneath them, can we assume the same levels of solidarity between women today?
Class divisions of course were never absent from the second wave feminist movement in which Ginsburg was involved. The movement in America has historically faced criticism for having a middle-class bias which confined the concerns of poor and black women to the fringes. Ginsburg believes addressing these persistent inequalities will take time, and that change will be incremental. “It won’t happen overnight. But I can see even in the different generations in my own family. It used to be women shouldn’t work when they were married. The next step was, it’s good to have two incomes in a family if you want to do well for your children, but she has to do all the ‘woman-y’ things. She has to take the children to their medical and dental check-ups, buy their shoes, have dinner on the table at 7pm. Some women saw something wrong with that arrangement. Their complaint was, he should do more than take out the garbage.”
Ginsburg believes that eroding gender roles can benefit men as well as women given the constraints they impose upon male behaviour, especially in relation to family. She continues, “At the same time, some men realised when their children were grown that they had very little part in raising them and they came to regret that. So I see in my own children, that men are doing much more in the way of childcare than they used to.’’ Famously, Ginsburg’s husband Marty, supported her unwaveringly throughout her career.
Bader Ginsburg may be of an old-school liberal feminist bent, reasonably emphasising women’s assimilation into once male-dominated boardrooms and law firms, but she is also quietly radical in her sensitivity to what it is to be poor in a system run by the rich. She remains keenly attuned to the class dimensions in the fight to secure women’s rights. Her words of advice for young feminists today have a deep and universal poignancy to them. “First, appreciate that no doors are closed to you if you have the talent and the will to aspire and achieve. And the second, remember the women who are less fortunate than you. Don’t be satisfied for example, that you, a woman with a good income, knows that she can have access to an abortion if she wants one when poor women are not in that situation. You should be fighting to establish rights for everyone, not just those who can pay.”
Olivia Arigho-Stiles 