CRF Blog

Ruth Bader Ginsburg’s Unlikely Path to the Supreme Court

by Bill Hayes

In Ruth Bader Ginsburg’s Unlikely Path to the Supreme Court for the New Yorker, Jill Lepore looks at how she had to overcome the distrust of feminist critics.

Ruth Bader was born in Brooklyn in 1933. At thirteen, she wrote a newspaper editorial, a tribute to the Charter of the United Nations. Her mother, an admirer of Eleanor Roosevelt, died when she was seventeen. Bader went to Cornell, where she liked to say that she learned how to write from Vladimir Nabokov. At Cornell, she also met Martin Ginsburg, and fell in love. They married in 1954 and had a baby, Jane, in 1955. Brilliant and fiercely independent, Ginsburg was devoted to Marty, to Jane, and to the law. At Harvard Law School, which first admitted women in 1950, she was one of only nine women in a class of some five hundred. In one of the first scenes in “On the Basis of Sex,” Erwin Griswold, the dean of the law school, asks each of those nine women, during a dinner party at his house, why she is occupying a place that could have gone to a man. In the film, Ginsburg, played by Felicity Jones, gives the dean an answer to which he can have no objection: “My husband, Marty, is in the second-year class. I’m at Harvard to learn about his work. So that I might be a more patient and understanding wife.” This, which is more or less what Ginsburg actually said, was a necessary lie. It was possible for a woman to attend law school — barely — but it was not possible for her to admit her ambition.

In 1957, Marty was diagnosed with testicular cancer. During his illness and treatment — surgery followed by radiation — Ruth not only cared for him, and for the baby, but also covered all of his classes and helped him with his papers. She kept up an almost inhuman schedule, often working through the night. After Marty graduated, he took a job in New York, and Ruth transferred to Columbia. She graduated first in her class. “That’s my mommy,” four-year-old Jane said, when Ginsburg crossed the stage to accept her diploma.

Looking for work, Ginsburg confronted the limits of the profession’s willingness to take female lawyers seriously. Felix Frankfurter, the first Supreme Court Justice to hire an African-American clerk, in 1948, refused to hire a woman, even after he was reassured that Ginsburg never wore pants. Stymied, Ginsburg went to Sweden to undertake a comparative study of Swedish and American law. On her return, in 1963, she accepted a position at Rutgers, teaching civil procedure. A year and a half later, when she found herself pregnant — given her husband’s medical history, this blessing was unexpected — Ginsburg delayed informing the university, for fear of losing her position.

Ginsburg, in other words, had plenty of experience of what would now be called — because she called it this — discrimination on the basis of sex. In 1969, Ginsburg was promoted to full professor and her son, James, entered nursery school, rites of passage that freed her to explore a new interest: she began volunteering for the A.C.L.U. Working with and eventually heading the A.C.L.U.’s Women’s Rights Project, Ginsburg pursued a series of cases designed to convince the Supreme Court, first, that there is such a thing as sex discrimination and, second, that it violates the Constitution. [more]