Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection (Penguin Liberty, Band 1) - Softcover

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Corey Brettschneider is professor of political science at Brown University, where he teaches constitutional law and politics, as well as visiting professor of law at Fordham Law School. He has also been a visiting professor at Harvard Law School and the University of Chicago Law School. His recent writing has appeared in The New York Times, Politico, and The Washington Post. His new book is The Oath and the Office: A Guide to the Constitution for Future Presidents, which Kirkus calls "vital reading for all Americans." Brettschneider is frequently interviewed about constitutional issues on BBC, Sirius XM, and other media outlets. He is also the author of two books about constitutional law and civil liberties and numerous articles that appear in top academic journals and law reviews. His constitutional law casebook is widely used in classrooms throughout the United States. Brettschneider holds a PhD in politics from Princeton and a JD from Stanford Law School.

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Brief for the Appellant in Reed v. Reed (1971)

In 1971, while a professor at Rutgers Law School and not yet a judge, Ruth Bader Ginsburg co-wrote with ACLU lawyers a brief for the appellant in a case called Reed v. Reed, decided in 1971. Sally Reed's son had recently died, and she and her separated husband, Cecil, were engaged in a battle over who would administer their son's estate. In Idaho, where the Reeds lived, state law dictated that Cecil was entitled to be the administrator, because "males must be preferred to females." Ginsburg was interested in the case not just to assert Sally Reed's right to be an administrator but to make a broader point about how laws that arbitrarily privilege men over women violate the Fourteenth Amendment's Equal Protection Clause. In the brief, Ginsburg argues forcefully that the Idaho law is unconstitutional.

The issue in this case is whether, as appellant contends, mandatory disqualification of a woman for appointment as an administrator, whenever a man "equally entitled to administer" applies for appointment, constitutes arbitrary and unequal treatment proscribed by the fourteenth amendment to the United States Constitution. 

In very recent years, a new appreciation of women's place has been generated in the United States. Activated by feminists of both sexes, courts and legislatures have begun to recognize the claim of women to full membership in the class "persons" entitled to due process guarantees of life and liberty and the equal protection of the laws. But the distance to equal opportunity for women-in the face of the pervasive social, cultural and legal roots of sex-based discrimination-remains considerable. In the absence of a firm constitutional foundation for equal treatment of men and women by the law, women seeking to be judged on their individual merits will continue to encounter law-sanctioned obstacles. 

The experience of trying to root out racial discrimination in the United States has demonstrated that even when the arsenal of legislative and judicial remedies is well stocked, social and cultural institutions shaped by centuries of law-sanctioned bias do not crumble under the weight of legal pronouncements proscribing discrimination. Thus . . . sex-based discrimination will not disintegrate upon this Court's recognition that sex is a suspect classification. But without this recognition, the struggle for an end to sex-based discrimination will extend well beyond the current period in time, a period in which any functional justification for difference in treatment has ceased to exist.

One challenge Ginsburg faced in writing the brief was that the Supreme Court had never used the Equal Protection Clause to strike down a law because it discriminated on the basis of sex addressed. Sex discrimination had not been the focus of the Fourteenth Amendment's framers. Ginsburg needed to show that sex discrimination was at least partially analagous to race discrimination: both were arbitrary forms of unequal treatment.  At the time, this view was contested; many people thought that men and women were simply biologically different, and the law should reflect that. In the next section, Ginsburg begins the monumental task of arguing that sex should be a 'suspect classification,' not an acceptable reason to treat people differently under law.

It is only within the last half-dozen years that the light of constitutional inquiry has focused upon sex discrimination. Emerging from this fresh examination, in the context of the significant changes that have occurred in society's attitudes, is a deeper appreciation of the premise underlying the 'suspect classification' doctrine: although the legislature may distinguish between individuals on the basis of their ability or need, it is presumptively impermissible to distinguish on the basis of congenital and unalterable biological traits of birth over which the individual has no control and for which he or she should not be penalized. Such conditions include not only race, a matter clearly within the 'suspect classification' doctrine, but include as well the sex of the individual. . . .

Through a process of social evolution, racial distinctions have become unacceptable. The old social consensus that race was a clear indication of inferiority has yielded to the notion that race is unrelated to ability or performance. Even allegedly rational attempts at racial classification are now generally rejected outright. The burden of showing that these attempts are based on something other than prejudice is enormous.

There are indications that sex classifications may be undergoing a similar metamorphosis in the public mind. Once thought normal, proper, and ordained in the "very nature of things," sex discrimination may soon be seen as a sham, not unlike that perpetrated in the name of racial superiority. Whatever differences may exist between the sexes, legislative judgments have frequently been based on inaccurate stereotypes of the capacities and sensibilities of women. In view of the damage that has been inflicted on individuals in the name of these "differences," any continuing distinctions should, like race, bear a heavy burden of proof. One function of the fourteenth amendment ought to be to put such broad-ranging concerns into the fundamental law of the land.

When biological differences are not related to the activity in question, sex-based discrimination clashes with contemporary notions of fair and equal treatment. No longer shackled by decisions reflecting social and economic conditions or legal and political theories of an earlier era, both federal and state courts have been intensely skeptical of lines drawn or sanctioned by governmental authority on the basis of sex. Absent strong affirmative justification, these lines have not survived constitutional scrutiny. 

Another characteristic which underlies all suspect classifications is the stigma of inferiority and second class citizenship associated with them. Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote and, until recently, the right to serve on juries in many states. They are excluded from or discriminated against in employment and educational opportunities. Married women in particular have been treated as inferior persons in numerous laws relating to property and independent business ownership and the right to make contracts.

Laws which disable women from full participation in the political, business and economic arenas are often characterized as "protective" and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage. We conclude that the sexual classifications are properly treated as suspect, particularly when those classifications are made with respect to a fundamental interest such as employment.

To prove that sex should be a suspect classification, Ginsburg needed to make a second point, beyond just that biology cannot justify unequal treatment. She also needed to prove that women faced real discrimination-just like African Americans, discrimination against whom was the original basis for the Equal Protection Clause. In the next section, Ginsburg does so by attacking the typical justifications given for sex-classified laws.

While the characteristics that make a classification 'suspect' have not been defined explicitly by this Court . . . a series of cases delineates as the principal factor the presence of an unalterable identifying trait which the dominant culture views as a badge of inferiority justifying disadvantaged...