Sept. 21, Professor Joanna Grossman and Dean Jennifer Collins, SMU Dallas Dedman School of Law, for an op-ed tribute to the late Justice Ruth Bader Ginsburg. Published in the Dallas Morning News: https://bit.ly/3hRlpHJ
Justice Ruth Bader Ginsburg entered Harvard Law School in 1956, one of only nine women in a class of about 500. In contrast, women constitute 51% of our first-year class at SMU Dedman School of Law, about the same percentage of the seats they occupy at law schools nationwide. Many of these women were undoubtedly inspired to pursue law school because of Ginsburg’s example.
While so much has changed since her law school days, far too much remains the same. Ginsburg would urge us not to rest until her life’s work of ensuring truly equal opportunity for all our citizens, regardless of gender, race or sexual orientation, has finally been accomplished.
By Joanna Grossman
and Jennifer Collins
Justice Ruth Bader Ginsburg entered Harvard Law School in 1956, one of only nine women in a class of about 500. In contrast, women constitute 51% of our first-year class at SMU Dedman School of Law, about the same percentage of the seats they occupy at law schools nationwide. Many of these women were undoubtedly inspired to pursue law school because of Ginsburg’s example.
While so much has changed since her law school days, far too much remains the same. Ginsburg would urge us not to rest until her life’s work of ensuring truly equal opportunity for all our citizens, regardless of gender, race or sexual orientation, has finally been accomplished.
When Ginsburg entered Harvard, she was asked by the dean why she felt worthy of a seat that could have been occupied by a man. When she graduated, even though at the top of her class (a feat achieved while caring for a toddler and a husband with cancer), she found it impossible to secure a job at a top New York law firm.
Although law firm doors are no longer closed to female law graduates, women remain grossly underrepresented at the top ranks of the legal profession. Though 50% of law school graduates for two decades, women hold only a third of federal judgeships (and only a fourth of President Donald Trump’s almost 200 appointed judges).
Of our current 93 U.S. attorneys, only seven are women. In 2019, the American Bar Association’s Commission on Women in the Profession reported that women represented only 19% of equity partners in law firms, only 30% of Fortune 500 general counsels, and only 35% of law school deans.
It is in large part thanks to Ginsburg’s work, both as a litigator and a judge, that we have made even this much progress. The percentage of women in law schools is far from the only change in our society between the beginning and end of her career. When Ginsburg graduated in 1959, it was both lawful and commonplace to exclude women from jobs, pay them less and fire them if pregnant.
The gendered rules of employment were just the beginning. The law was littered with arbitrary rules that treated all women differently from all men, regardless of individual capabilities or circumstances. These laws affected every aspect of life — jury service, education, financial independence, the consequences of divorce, and even the sale of alcohol. The legal system reflected and reinforced an ideology that men and women were suited to operate in different spheres, men in the marketplace and women in the home.
As a young lawyer, Ginsburg began the process of dismantling the laws assigning women to separate, often lesser roles in society. She litigated the first case in which the Supreme Court invalidated a law on sex-equality grounds. In Reed vs. Reed (1971), Ginsburg argued that an Idaho probate law preferring male relatives to female ones to administer a decedent’s estate discriminated against women and violated the Equal Protection Clause. Sex-based classifications, she argued, were just as worthy of judicial suspicion as race-based classifications — legislatures had historically used both to establish a hierarchy in our society. The court agreed that laws differentiating between men and women deserved a closer look than other types of social and economic legislation.
With Reed as the foundation, Ginsburg began constructing a constitutional right of sex equality. She founded the Women’s Rights Project at the American Civil Liberties Union and filed case after case challenging laws that discriminated on the basis of sex, including some that disadvantaged men. In less than a decade, the Supreme Court heard 19 cases alleging sex discrimination, with Ginsburg’s arguing five.
Although not every case resulted in a victory, the legal principles developed changed women’s rights — and women’s lives — forever. The court established that states could not impose different rules on the basis of sex without a very good reason based on real differences (not “archaic and overbroad generalizations”) that were salient to the legislative objective. This meant, in effect, that the government’s longstanding, reflexive use of gender to organize society was unconstitutional.
Ginsburg’s work did not end when she became a federal judge in 1980, nor when she was appointed to the Supreme Court in 1994. She wrote the majority opinion in United States vs. Virginia (1996), invalidating the Virginia Military Institute’s male-only admissions policy. The Equal Protection Clause does not permit the government to deny to women “simply because they are women, full citizenship stature — equal opportunity to participate in and contribute to society based on their individual talents and capacities.” If even one woman would qualify for and choose a “punishing” education at VMI, the government could not constitutionally deny women admission. Ginsburg thus applied the approach to equality for which she had once advocated, helping to eradicate stereotypes about women’s ability and proper place in society.
As the Supreme Court shifted rightward, Ginsburg’s voice was heard more often in dissent. She argued for more effective protection against pay discrimination, greater access to reproductive health care, and broader protection for unwed fathers. She knew both how far we had come and how far we still must go.
Ginsburg shared a friendship with the late Ellen Solender, one of the first female law professors at SMU. Solender endowed a chair in women and the law, one of the very few in an American law school. In a video tribute honoring her friend’s extraordinary gift, Ginsburg shared that she and Solender were “alike in many ways. … Both of us are ardent feminists, and we would like to see an Equal Rights Amendment added to the Constitution,” a goal we should seek in Ginsburg’s honor.
“We have seen large changes in our lifetime,” she added, “yet appreciate the long way that remains before respect for the dignity of all persons becomes not aspirational, but real.”
It is up to all of us now to continue Ginsburg’s great march towards equality for all.
Joanna Grossman is the inaugural holder of the Ellen K. Solender Endowed Chair in Women and the Law at SMU Dedman School of Law.
Jennifer Collins is dean of SMU Dedman School of Law and the first woman to hold the permanent deanship in the law school’s history.
