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First, We Mourn. Then, We Fight

Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the West conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Nikki Kahn/The Washington Post via Getty Images)
Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is photographed in the West conference room at the U.S. Supreme Court in Washington, D.C., on Friday, August 30, 2013. (Nikki Kahn/The Washington Post via Getty Images)

First, we mourn. Then, we fight.

Ruth Bader Ginsburg was more than a chess piece in the electoral politics of this nation. She changed everything for more than 50 percent of the population by convincing an all-male U.S. Supreme Court in case after case in the 1970s that the 14th Amendment’s guarantee of equal protection includes equality of the sexes.

Her death, at 87, will, of course, ignite a political firestorm about who gets to nominate her successor. News of her loss was still fresh when the shameless Senate Majority Leader vowed that whomever President Donald Trump nominates will get a vote on the Senate floor. Yes, that’s the same Mitch McConnell who blocked consideration of President Barack Obama's high court nominee for a year, insisting that the matter be postponed until after the 2016 presidential election.

The rank hypocrisy of the Republican senator from Kentucky will hold for another day.

People gather at the Supreme Court Friday, Sept. 18, 2020, in Washington, after the Supreme Court announced that Supreme Court Justice Ruth Bader Ginsburg has died of metastatic pancreatic cancer at age 87. (Alex Brandon/AP)
People gather at the Supreme Court Friday, Sept. 18, 2020, in Washington, after the Supreme Court announced that Supreme Court Justice Ruth Bader Ginsburg has died of metastatic pancreatic cancer at age 87. (Alex Brandon/AP)

Today, let’s remember the dogged litigator who, as director of the Women’s Rights Project of the American Civil Liberties Union, won five separate cases that established that discrimination “on the basis of sex” was unconstitutional. Let’s honor the diminutive justice who crafted the majority decision in 1996 striking down the male-only admissions policy of the state-funded Virginia Military Institute because, she wrote, the law, must not “create or perpetuate the legal, social, and economic inferiority of women.”

Ruth Bader Ginsburg knew something about that. One of nine women in her Harvard Law School class, she received her law degree from Columbia, having transferred to New York to accommodate her husband’s job. No law firm would hire her despite her standing at the top of her class. Columbia would not hire her, either, so she taught law at Rutgers Law School and volunteered her services to the ACLU and began her lifelong advocacy for the equal treatment of women under the law.

Ruth Bader Ginsburg was more than a chess piece in the electoral politics of this nation.

The Virginia Military Institute case was a victory for the liberal jurist on an increasingly conservative court. More often Ginsburg’s voice was heard in stinging dissent, as in 2007 when the court upheld a federal ban on certain late-term abortions. “The court deprives women of the right to make an autonomous choice, even at the expense of their safety,” Ginsburg read from the bench. “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”

That same year, she excoriated the majority decision in Ledbetter v. Goodyear Tire and Rubber Company for narrowly interpreting Title VII of the Civil Rights Act of 1964 as imposing strict time limits for bringing workplace discrimination suits. She urged Congress to overturn the ruling. When it did, she hung a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 in her chambers.

It was her moral clarity in defending the rights of women that won her the gratitude of those who came of age in the 1970s and turned her into a cultural icon for younger women, some of whom tattooed the image of the Notorious RGB on their bodies in homage. Men, too, read in her words the simple truth that equality of the sexes elevated men and women alike.

In this Aug. 10, 1993, file photo, Supreme Court Justice Ruth Bader Ginsburg takes the court oath from Chief Justice William Rehnquist, right, during a ceremony in the East Room of the White House in Washington. Ginsburg's husband Martin holds the Bible and President Bill Clinton watches at left. (Marcy Nighswander/AP)
In this Aug. 10, 1993, file photo, Supreme Court Justice Ruth Bader Ginsburg takes the court oath from Chief Justice William Rehnquist, right, during a ceremony in the East Room of the White House in Washington. Ginsburg's husband Martin holds the Bible and President Bill Clinton watches at left. (Marcy Nighswander/AP)

“Inherent differences between men and women, we have come to appreciate, remain cause for celebration,” she wrote in the Virginia Military Institute case, “but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”

Thousands turned up in tears outside the Supreme Court Friday night carrying candles and flowers to honor that principle.

Some of their tears were for this country, so bent by rage and division that the time to mourn the loss of Ruth Bader Ginsburg will be short and, sadly, the battle to replace her will display none of the grace and dignity that characterized her life’s work and her 27-year tenure on the high court.

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Eileen McNamara Cognoscenti contributor
Eileen McNamara teaches journalism at Brandeis University. The author of a biography of Eunice Kennedy Shriver, she won a Pulitzer Prize as a columnist for The Boston Globe.

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