Shattering The Glass Ceiling: A Tribute To Ruth Bader Ginsburg

Amit A. Pai & Pankhuri Bhardwaj

11 April 2023 11:14 AM GMT

  • justice ruth bader ginsburg, supreme court of united states

    “I ask no favour for my sex. All I ask of our

    brethren is that they take their feet off our necks.”

    Amit A. Pai[1] & Pankhuri Bhardwaj[2]

    The iconic and inspirational life and journey of Justice Ruth Bader Ginsburg has been well documented in several articles and books. The second woman to be elevated to the Supreme Court of the United States, she was a champion for the cause of gender equality through her career as a lawyer and a Judge. Having faced gender discrimination first hand, perhaps, fortified her stand against denial “to any person within its jurisdiction the equal protection of the laws.”[3] When she joined the Harvard Law School in 1956 – one of 9 out of 500, there were no facilities for women. In fact, Dean Erwin Griswold sought to know from the 9 women “Why are you at Harvard Law School, taking a place that all the dormitories at Harvard were reserved for men – “The girls had to find their own places in town.”[4]

    Upon nomination to the top Court in 1993 by President Clinton, she faced the Senate Judiciary Committee, and explained that her initial struggle with sex-based discrimination was not understood by the Courts. She explained:

    “I was talking to an audience of men who thought immediately that what I was saying as somehow critical about the way they treated their wives, the way they treated their daughters. Their notion was, far from treating women in an odious, evil, discriminatory way, women were kept on a pedestal. Women were spared the messy, dirty real world; they were kept in clean, bright homes. I was trying to educate the judges that there was something wrong with the notion, “Sugar and spice and everything nice, that’s what little girls are made of” – for that very notion was limiting the opportunities, the aspirations of our daughters.”[5]

    When on the Harvard Law Review, and her attempt to access the Lamont Library at night, she recounted:

    “There was a man at the door, and he said, “you can’t come in.” “Well, why can’t I come in?” “Because you’re a female.” “But the library at Harvard is open to women,” I protested, “Widener is open to women.” This one room in Lamont, however, remained a symbol of the way things were. It was closed to women. There was nothing I could do to open the door guarded by a university employee who said, “You can’t enter that room.”[6]

    The lack of understanding of the legislature of the needs of the women was also expressed by her, and she said that the “legislative branch said we will restrict the hours for women, but not for men, we will restrict night work for women, but not for men, we will restrict the jobs women can take, but not men, because we know better, we can protect women; they need to be protected from unhealthy and unsafe conditions, especially jobs that pay doubletime and the like.”[7] While expressing her skepticism for the protection given by the legislature, she said that “legislation was not genuinely protective, although “protection” was the label lawmakers used for it.”[8] Soon after her appointment to the Apex Court, she got an opportunity to attack sex based discrimination.

    The Virginia Military Academy (VMI) was one of the best military schools in the United States, established in 1839. The aim was “to produce “citizen soldiers”, men prepared for leadership in civilian life and in military service.” However, the VMI was a single-sex school – i.e., only men were admitted. In United States v. Virginia[9], the Court decided a challenge that was brought against the exclusive male admission policy as being in violation of the Equal Protection Clause. She would further note that test which was to apply was whether the justification for denial of equal opportunity was “exceedingly persuasive”, and held that in the absence of any “exceedingly persuasive justification” VMI’s “excluding all women from the citizen-soldier training” violated the Fourteenth Amendment.[10] Addressing the argument that the modification to the program of the VMI upon inclusion of women would drastically change the program of the VMI as to “destroy” it, Justice Ginsburg would hold:

    “The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophecies”, once routinely used to deny rights or opportunities…”[11]

    Though, Virginia presented a remedial plan – that of creating the VWIL for women, Justice Ginsburg opined that there was nothing “substantial equality in the separate educational opportunities”[12] since the women who graduated from the VWIL would not have the “advantage of a VMI degree. Her diploma does not unite her with the legions of VMI “graduates [who] have distinguished themselves in military and civilian life.”[13] Speaking for the Court, Justice Ginsburg noted that “(w)omen seeking and fit for a VMI-quality education cannot be offered anything less” and Virginia had an “obligation to afford them genuinely equal protection.”[14] She would conclude noting:

    “There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union”.”[15]

    After the verdict, the VMI Board voted to 9 to 8 to admit women, and the first batch of women freshman cadets were admitted in August, 1997.[16] A cadet who graduated from VMI in 1967 wrote to Justice Ginsburg, “I graduated from VMI in 1967 and I know a few young women today who are physically, intellectually, and emotionally tougher than I was over thirty years ago. If I could make it then, I know they can make it today.” In a subsequent letter, he gave her a pin given to his mother at his graduation, and wrote “The pin enclosed was my mother’s. She is dead now. We wanted you to have it. In an abstract way, you will be ‘mother’ of VMI’s first and succeeding women graduates. This pin makes you an adjunct member of the VMI family.”[17] In 2017, when the Justice visited the VMI, she proudly wore the pin.

    Lilly Ledbetter worked as a supervisor and then Area Manager in Goodyear Tire & Rubber Company from 1979, till she retired in 1998 – perhaps amongst the only women, in an otherwise male dominated employment – and thus the pay she received was in stark contrast to the pay her male counterparts received. While she was paid $3,727 a month, the lowest paid male area manager was paid $4,286 a month and the highest was paid $5,236. She sued for pay discrimination on the basis of her sex, on the eve of her retirement. In Ledbetter v. Goodyear Tire & Rubber Co.[18], The majority opinion, authored by Justice Alito, rejected Ledbetter’s claim as being time barred – they held that she ought to have brought her discrimination charge within 180 days after the alleged unlawful employment practice occurred as per Title VII[19] of the Civil Rights Act. Justice Ginsburg, along with three Judges, dissented.

    In her powerful dissent, Justice Ginsburg commented on the fact that unlike promotions or transfers, unlike hiring and firings, salary was not generally publicly known, and that “Compensation disparities, in contrast, are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries.”[20] Justice Ginsburg elucidated:

    “The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision. She may have little reason even to suspect discrimination until a pattern develops incrementally and she ultimately becomes aware of the disparity. Even if an employee suspects that the reason for a comparatively low raise is not performance but sex (or another protected ground), the amount involved may seem too small, or the employer’s intent too ambiguous, to make the issue immediately actionable – or winnable.”[21]

    She also noted that “when a woman is paid less than a similarly situated man, the employer reduces its cost each time the pay differential is implemented” and since disparate pay was unlike promotions, which involved third parties, could “be remedied at any time solely at the expense of the employer who acts in a discriminatory fashion.” [22] Taking stock of the realities of wage discrimination, she held that “each paycheck less than the amount payable had the employer adhered to a nondiscriminatory compensation regime” “constituted a cognizable harm”[23] – and thus, Ledbetter’s claim was not time barred. Before parting with the dissenting opinion, Justice Ginsburg noted “the ball is in Congress’ court”, and that “the Legislature may act to correct this Court’s parsimonious reading of Title VII.”[24] And Congress acted. In 2009, the Lilly Ledbetter Fair Pay Act became law, and did away with the 180-day limitation for the filing of a lawsuit for pay discrimination in Title VII.

    Fifty years ago, Ruth Bader Ginsburg argued for the ACLU[25] in Frontiero[26], it was for the first time the majority of the Court declared that a classification on the basis of sex was “inherently suspect” and “discriminatory”. In the VMI case and in the Ledbetter case, she gave the idea of sex as the basis for discrimination fruition – the impact of which is for all to see. In her confirmation hearing, Justice Ginsburg had expressed “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.”[27] Her wish came true during her lifetime, and thereafter. Not just in the United States, but even in India, the idea of equality is coming into being – with the equality in property rights[28] or the Permanent Commission of Women in the Indian Army[29] or the dignity of women[30]. No longer are women considered the “weaker sex”. In Bob Dylan’s immortal words, “The times they are a-changin’.” Born on 15th of March, 1933, this year was the ninetieth birth anniversary of Justice Ginsburg. The present piece is a tribute to her – her battle against sex discrimination and her impact on equality.

    1. Advocate on Record, the Supreme Court of India.

    2. Advocate and Principal Associate, ORTIS Law Offices, New Delhi.

    3. The Fourteenth Amendment.

    4. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 134

    5. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 122

    6. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 134

    7. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 191-192

    8. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 192

    9. 518 U.S. 515 (1996)

    10. 518 U.S. 515, at Page 534

    11. 518 U.S. 515, at Page 543

    12. 518 U.S. 515, at Page 554

    13. 518 U.S. 515, at Page 552

    14. 518 U.S. 515, at Page 557

    15. 518 U.S. 515, at Page 558

    16. Teri Kanefield, Free to be Ruth Bader Ginsburg: The Story of Women and Law, Armon Book, San Francisco, 2016, Page 244

    17. Jane Sherron De Hart, Ruth Bader Ginsburg: A Life, Alfred A. Knopf, New York, 2018, Page 345-346.

    18. 550 U.S. 618 (2007)

    19. Title VII prohibited discrimination against another individual on the basis of race, colour, religion, sex, or national origin.

    20. 550 U.S. 618, at Page 649

    21. 550 U.S. 618, at Page 650

    22. 550 U.S. 618, at Page 651

    23. 550 U.S. 618, at Page 654

    24. 550 U.S. 618, at Page 661

    25. American Civil Liberties Union

    26. Frontiero v. Richardson, 411 U.S. 677 (1973)

    27. Hearings before the Committee on the Judiciary, United States Senate on the Nomination of Ruth Bader Ginsburg to be Associate Justice of the Supreme Court of the United States, Page 50

    28. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

    29. Secretary, Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

    30. Joseph Shine v. Union of India, (2019) 3 SCC 39

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