Editor’s Note: Tina M. Patterson is the president and director of research at The PuLSE Institute, Detroit’s independent anti-poverty think tank. She was previously a federal government attorney with the Social Security Administration. During her stint at the Social Security Administration, she wrote legally binding decisions for administrative law judges throughout the United States and Puerto Rico. For submission inquiries contact Bankole Thompson, the editor-in-chief of The PuLSE Institute at firstname.lastname@example.org
By Tina M. Patterson, Esq.
The hallowed United States Constitution is universally known as the supreme law of the land, a document to which every lawyer must swear an oath to support. Starting with the famous line, “We the People,” the US Constitution was ratified in 1787, with the express purpose “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
Yet while the US Constitution upon its ratification stated “We the People,” this phrase did not apply to women, African Americans, and demographic groups that were not white men. Furthermore, the Constitution required numerous amendments, starting with the Bill of Rights, which guaranteed such fundamental rights as the freedom of speech and religion, to amendments such as the 14th Amendment which guaranteed equal protection under the law for excluded minority groups, and the 19thAmendment, which gave women the right to vote.
In fact, the late Justice Thurgood Marshall, the preeminent civil rights lawyer of the 20th century and first African-American Supreme Court Justice of the United States, noted at the Constitution’s bicentennial in 1987 that, “The government [the founder’s] devised was defective from the start, requiring several amendments, a civil war and major social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”
Now, we remember and memorialize another monumental Supreme Court Justice who also believed in using the law to make society better for all, the late Justice Ruth Bader Ginsburg, who died on September 18, 2020 at the age of 87.
In a documentary about her life titled “RBG,” Justice Ginsburg reflected on her earlier years, including her college years in the 1950s, amid the Red Scare and Anti-Communist Wave across the country, when testimony before the federal congressional House Committee on Un-American Activities was a frequent occurrence. Despite this domineering philosophy, Justice Ginsburg noted that “there were lawyers who were defending the rights of these people to think, to speak, to write freely,” which is what the First Amendment to the Constitution guaranteed.
With the idea that as a lawyer, you could do something to make your society better, Justice Ginsburg enrolled in Harvard University Law School in 1959, where she was one of a handful of women in the sea of 500 male students. She quickly observed not only her rarity as a woman amongst the men, but also the disdain for it. She recalled during the Harvard Law School Dean’s Dinner, the male Dean specifically asking all the women enrolled at the school what they were doing occupying the seat of a man.
Sex discrimination was not only common, but legal in her time, and upon her eventual law school graduation from Columbia University Law School in New York in 1959, she stated that “not a single firm in New York would hire her,” and that “being a woman was an impediment.”
She began her career as a trail-blazing professor of law in the area of women’s rights before she emerged as a preeminent litigator of sex-discrimination cases, starting with her first argument before the US Supreme Court in Frontiero v Richardson, 1973, which decided that benefits given by the United States military to the family of service members cannot be given out differently because of sex.
Because of her willingness to challenge the law to live up to its full promise of equality, Justice Ginsburg led the way in dismantling the legality of sex discrimination as a litigator, which earned her a seat on the federal judiciary with her appointment to the US Court of Appeals for the District of Columbia Circuit by then President Jimmy Carter in 1980.
By 1993, Justice Ginsburg was nominated by President Bill Clinton as an Associate Justice for the U.S. Supreme Court, for which she was confirmed and served until her death yesterday. During her nomination hearing, Justice Ginsburg poignantly stated, “In my lifetime, I expect to see three, four, perhaps even more women on the High Court bench. Women not shaped from the same mold, but of different complexions.” This statement reflects her commitment not only to women’s rights generally, but of the much-needed diversity of women in high places to reflect the broader, more realistic population.
While her legacy on women’s rights is predominant and unmatched, Justice Ginsburg was also a champion of civil rights and liberties, which led to her becoming known as “The Great Dissenter” in her later years on the Court, which grew more conservative-leaning, causing her to dissent more frequently. According to Ginsburg, who often read her dissenting opinions out loud, reading aloud signaled that “in the dissenters’ view, the Court’s opinion is not just wrong, but grievously misguided.”
As “The Great Dissenter,” Justice Ginsburg, with respect to the role she occupied, was unafraid to challenge the enormous gravity of the institution of the Supreme Court, a Court that once upheld the dastardly legality of slavery and explicitly denied rights to Blacks. She staunchly supported Affirmative Action, defending its constitutionality, stating “I have several times explained why government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’”
In this day and time in the year 2020, we have seen full circle this looming legacy of legal inequality still haunting us. From rampant police brutality against African Americans, to the equal pay gap between women and men, we know full well that the promises of equal protection under the law are yet to be fulfilled.
Justice Ginsburg, with her brilliant legal mind and endearing persona, epitomized the courage still needed today in fighting against inequality and the destructive forces of discrimination, whether against race, sex, or other constitutionally protected classes.
We celebrate and honor her courageous legacy and tenacity to keep going, even when the odds are not in your favor and are seemingly insurmountable. When faced with an uphill battle in the fight for justice and equality, we must all keep in mind Justice Ginsburg’s simple, yet profound words of wisdom: “Yes we may be in trying times, but think how it was.”
While Justice Ginsburg could have accepted the societal role imposed upon her that relegated her to a lesser role than men, she instead chose to use the skills she had- her legal skills- and put them to work in line with the legal maxim of equal justice under the law.
As a woman, and especially as a Black woman, this is a philosophy I very much identified with, and is the exact reason I became a lawyer – to use the law to shape a better role for people like myself in this country. Justice Ginsburg and Justice Marshall were great inspirations in my legal career path, and perhaps now more than ever, lawyers, particularly women lawyers and Black lawyers, must be compelled to uphold and expand the equality gains that legal ancestors like Justice Marshall and Justice Ginsburg advocated so valiantly to realize.
With the ever-expanding inequality gap in this country, a penchant for ignoring the underprivileged in this society, and a continuous erosion of civil rights and liberties from conservative and partisan actors, we must remain diligent to the commitment for equality for our most oppressed citizens.
Justice Ginsburg quoted from Judge Learned Hand’s “Spirit of Liberty” speech, in explaining her judicial philosophy, which she described as “where the least shall be heard and considered side by side with the greatest,” and that she would keep that wisdom in the front of her mind as long as she was capable of judicial service.
After 40 years on the federal judiciary, that service has now ended, and in honoring Justice Ginsburg’s tremendous legacy, it is up to each of us to ensure that her life’s work to uphold the noble and foundational ideal of equal protection under the law, is guaranteed now and in the future for the betterment of our society.