As women celebrate the International Women’s Day on 8th March to promote gender equity, justice, sensitivity and empowerment, the incredible contribution made by Justice Ruth Ginsberg who served as a judge in US Supreme Court comes to mind. She was the first Jewish woman, to be nominated by the President Bill Clinton, and cleared by the Senate with a vote of 93 to 7. Serving the Supreme Court for 27 years, she succumbed to prostate cancer and is widely regarded as the greatest champion of gender equality and women right.
She would be remembered for several important judgements she delivered during her long and illustrious career, where she went beyond gender justice and looked at people with mental disability with sensitivity, protected the need for a healthy environment and asserted Right to Privacy of young girls and parity of pay between men & women. In the United States v. Virginia case (1996) she struck down the long standing policy of male only admission of Virginia Military Institute. The lone dissenter was Antonin Gregory Scalia who represented the conservative spirit of US Supreme Court. While Justice Ginsburg invoked equal protection clause of 1968 to strike down gender bias against women, Justice Scalia believed that ‘this was not an interpretation of the Constitution but creation of one’. Ginsburg was the principal liberal mouth piece of US Supreme Court.
In another landmark case Olmstead v. L.C., 1999 she wrote strongly against unjustified isolation of people with mental disability. She was of the view that the Disability Act provides a right to the mentally disabled to live in the community rather than being forced to enter in to a mental institution. This had far reaching implication in many states of USA subsequently. In the Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000) she averred that a plaintiff need not prove actual harm to residents flowing out of contaminated water of the river. She wrote: “injury comes from lessening the aesthetic and recreational values of the area for users of the river”.
In another case Safford Unified School District v. Redding (2008) she held that the school went too far in ordering a 13-year-old female student to strip her bra and underpants so that they could search for possession of drugs. She considered such a seizure offensive of the fourth amendment to US Constitution in 1792, which frowns upon arbitrary search. To quote her ‘they have not been a 13-year-old girl to understand the depth of a humiliation and decimation of her right to privacy’.
She is also known for her dissenting judgements, the most important being Bush vs Gore (2000) where in a verdict of 5 to 4 the conservative judges did not allow a recount of vote in the state of Florida. Writing the minority judgement, she observed that stopping the recount was a violation of three venerable judicial principles, viz. refrain from opinion of the state Supreme Court, just exercise of jurisprudence and peremptory exclusion of federal law. She has famously observed “it is the confidence of men and women on administration of the judicial system that is the true backbone of rule of law”.
In Ledbetter v. Goodyear Tire & Rubber Co (2007) case she struck down legislation providing pay discrimination against women employees. She implored President Obama to change the law, which he did in 2008.She represented true judicial activism of Supreme Court, to rile against patent discrimination, insensitivity and executive and legislative highhandedness. Ginsburg evokes the memory of Justice John Marshall, who firmly planted the concept of judicial review in the Marbury vs Madison Case (1803).
She never mixed dissent with fellow judges with personal friendship. Her friendship with Justice Scalia was legendry as they visited opera together, were shopping buddies and rode an elephant in India, with Scalia sitting upfront. When Ginsburg was asked, what about feminism, the diminutive judge quipped: It had to do with the distribution of weight! Ruth had famously observed: If you cannot disagree with your colleague about some issues of law and yet personally be friendly, get another job!
Ginsburg studied law in Harvard Law School in 1956, when they were only 9 women in a class of 500.The Dean had apparently called the girls separately and asked: Why are you taking the place of man? In 2020, the Harvard Law School has boys and girls 50:50. Virginia Law School is no longer the preserve of virile men. Felix Frankfurter, the legendary Judge, rejected Ginsburg for a clerkship position, due to her gender. Most of Ginsburg’s clerks were blacks, and they were her pall bearers during her funeral.
She has been buried by the side of her husband at Arlington, where loving wind will sweep the sleeping couples. Marty doted on her, and died of cancer in 2010. A brilliant tax lawyer and one year senior to her in HLS, Marty observed when she became an Associate judge in Supreme Court in 1993: It has been an incredible journey, by marrying Ruth, on her pathway to the Supreme Court. She would not complain about the quality of my cooking, nor can I quibble about her expertise in Law! Scalia wiped tears in the court when he heard of Marty’s death. They never mixed law and ideology with mutual respect and personal affection. Dissent for them was like ‘an appeal to the brooding spirit of law ‘. She lives behind a huge legacy as the greatest crusader of gender rights, with sensitivity to all sections of the society. Even in dissent she showed remarkable detachment of not mixing ideology with personal predilection. She stood ramrod to ensure right to equality, dignity for all and uphold the principle of rule of law.
Interestingly with the assumption to office as CJI, Justice DY Chandrachud is being hailed and riled for his bold judgements on women’s right to equality, dignity and privacy. In Sabarimalai temple entry case (2018), where menstruating women were denied entry he not only struck down this palpable gender discrimination but also invoked untouchability provision to decry such abominable practice. For Chandrachud the rule of law is a defence against oppressive structures like patriarchy. In Babita Puniya Case (2020) he strongly castigated the Army for denying grant of Permanent Commission to all serving women officers on Short Service Commission. One clearly discerns the influence of Ginsburg in CJI Chandrachud’s quest for an egalitarian society. The Constitution provides that practices derogatory to the dignity of women must be renounced. The Judiciary being the last lamppost for hope for all citizens, including women, one hopes that judges like Ginsberg hold the candle for gender justice & dignity.
Prof Misra is Professor Emeritus