Vol. 32 No. 1 (January 2022) pp. 1-4JUSTICE, JUSTICE THOU SHALT PURSUE: A LIFE’S WORK FIGHTING FOR A MORE PERFECT UNION, by Ruth Bader Ginsburg and Amanda L. Tyler. Berkeley: University of California Press, 2021. pp. 288. Cloth $26.95. ISBN: 978-0-520-38192-6. Ebook $26.95. ISBN: 978-0-520-38194-0.
Reviewed by Christine M. Bailey, Department of Political Science and Legal Studies, University of Massachusetts at Amherst. Email: cbailey@umass.edu.
It seems fitting this review should cross my desk on the one-year anniversary of the death of its first author; Supreme Court Justice Ruth Bader Ginsburg was a champion of civil rights and a trailblazer for equality and gender discrimination litigation. Tyler and Ginsburg assembled this work collaboratively, following the inaugural lecture of the Herma Hill Kay Lecture Series at the University of California, Berkley. Tyler's aim was not only to commemorate Justice Ginsburg's life and work, but also to give readers a glimpse into Ginsburg's career-long fight for gender equality. Unique to any other work that addresses Ginsburg's life and career, this book includes interviews of the Justice discussing what she considered to be her most important and influential cases and opinions. Additionally, the book includes transcripts of oral arguments and case briefs written by the late Justice, the written opinions of Ginsburg’s favorite cases, and several previously unpublished speeches. This format gives readers and students a novel insight into the litigation strategy and thought processes of this important woman both as a litigator and judge; allowing law scholars and students to understand previously unobserved dynamics of litigation and judging, particularly in cases that contend with gender equality.
The book begins with Ginsburg's inaugural address at the Herma Hill Kay Memorial Lecture. The lecture outlines the contribution of Herma Hill Kay and Ginsburg's working and personal relationship with the late gender discrimination advocate. Tyler then provides an interview with Ginsburg that was conducted following the memorial lecture, in which the Justice discusses her life and legal career (pp. 28-48). In this interview, Ginsburg addresses the challenges faced by female law students entering the legal profession in the late 1950's and early 1960's, her career as a litigator and champion in the fight against gender discrimination and equal rights, as well as some of her favorite cases from her career as a litigator. Justice Ginsburg is well known for her long-term gender equality litigation strategy, and this book gives us insight into how that plan came into fruition. During discovery in the MORITZ v. COMM’R OF INTERNAL REVENUE, 469 F.2d (10th Cir.1972). case, Ginsburg was given a printout by the Department of Justice that contained a list of every U.S. legal code that differentiated on the basis of sex (p. 40). This printout became the framework for Ginsburg's long-term plan for sex-discrimination litigation, because much of the legislation treated men as the breadwinners and only allowed for benefits that resulted from this gendered wage-earning role (p. 40). Ginsburg knew the easiest way to highlight the absurdity of gendered legal code was to bring cases that treated men differently from women. This gendered framing issue in U.S. legal code became a central focus of Ginsburg's gender discrimination litigation and led to cases such as WEINBERGER v. WIESENFELD, 420 U.S. 636 (1975).; and FRONTIERO v. RICHARDSON, 411 U.S. 677 (1973).
The interview then addresses the work that Ginsburg asserts still needs to be done to truly combat gender discrimination and move the country toward "a more perfect union" (p. 43). She stresses that while the cases she has participated in have addressed gender discrimination and bias in the legal code, the most challenging issue facing the nation with respect to gender discrimination is unconscious bias (p. 43). For Ginsburg, the gender bias that exists without conscious recognition, or acknowledgement, is the most challenging aspect of gender discrimination because it cannot simply be litigated out of existence. Ginsburg provides the example of an experiment with New York Times critic Howard Taubman, who claimed he could tell the difference between male and female piano players (p. 43). Upon empirical examination, Taubman’s claim was proven to be incorrect as the critic was unable to distinguish a female from a male piano player while blindfolded. Even when faced with this evidence, Taubman continued to assert his position that there are gender-based differences between male and female musicians. This implicit assumption of gendered differences can be held by members of all genders, and for Ginsburg, is the most challenging blight in gender equality that has yet to be properly addressed. My only criticism of this assertion by the late Justice, is that she does not seem to offer any potential solutions or methods for reducing unconscious gender bias in American society. Having an assignment from one of the nation’s most dedicated gender equality champions is rather difficult when we are provided no rubric. This issue is, as Ginsburg claims, an incredibly difficult one for society to address, but if anyone would have been able to articulate a plan to move the American consciousness toward gender equality, I can think of no one better suited to the task than Justice Ginsburg.
The interview then concludes with a discussion of Ginsburg's favorite cases and opinions from her time as a Supreme Court Justice (pp. 45-47). Following the interview with the Justice, the book presents a collection of materials personally chosen by both Tyler and Ginsburg that are symbolic and illustrative of Ginsburg's life and work. These materials begin with Ginsburg’s work as an attorney and include the brief filed by Ginsburg and her late husband in MORITZ which Ginsburg and Tyler included primarily because of its importance in framing the Justice’s long-term sex discrimination litigation strategy, and also because the litigation of the case prompted Congress to amend the legal code and remove the gendered nomenclature contained in the law regarding caregiver benefits (pg 52). Next, are the oral arguments transcripts from FRONTIERO (pp. 76-80); and WEINBERGER v. WIESENFELD, 420 U.S. 636 (1975). (pp. 81-93), as these denote two cases which successfully challenged laws that were discriminatory on the basis of gender.
The materials then shift to Ginsburg’s time on the Supreme Court, beginning with Herma Hill Kay’s statement in favor of the Justice’s nomination to the Supreme Court, that was addressed to the Senate Judiciary Committee during Ginsburg’s Confirmation Hearing in July 1993 (p. 99—101). Following the statement are four of Justice Ginsburg’s favorite opinions. The first case includes the bench announcement and the majority opinion in UNITED STATES v. VIRGINIA, 518 US 515, 550 (1996). (pp. 105-141). Ginsburg also speaks fondly of this decision, which forced the Virginia Military Institute to admit female cadets, in her interview earlier in the book (p. 45).
True to her colloquial title as the “Notorious RBG,” three of the four opinions Ginsburg is most proud of are dissents (p. 97), and the next three cases selected for inclusion in this work are dissents. The first dissent is LEDBETTER v. GOODYEAR TIRE & RUBBER CO., 550 U.S. 618 (2007). (pp. 143-164). Ginsburg claims this among her favorites because, although the Court did not agree with Ginsburg’s conclusions in the case, it led to Congress passing the Lilly Ledbetter Fair Pay Act of 2009, which requires employers to ensure non-discriminatory pay practices and keep more thorough recorders of fairness of pay decisions (pp. 45-46). The second dissent included in the book is SHELBY CNTY. v. HOLDER, 570 US 529 (2013). (pp. 169-202). In this opinion, the Justice criticizes the majority holding that Congress exceeded its authority in enacting Section 4 and 5 of the Voting Rights Act of 1965, which required additional oversight and proof of compliance in states that had historically exhibited discriminatory behavior in voting. Ginsburg asserts Congress was well within its constitutional powers to enact Section 4 and 5 to “guard against backsliding,” and prevent future and continued infringement on minority voting rights (p. 167). The final dissent included in the book is BURWELL v. HOBBY LOBBY STORES INC, 573 U.S. 682 (2014). (pp. 207- 240). This dissent criticizes the majority for allowing the retail chain an exemption from the contraceptive mandate in the Patient Protection and Affordable Care Act, based on the religious beliefs of the retailer’s founding and operational managers.
Following the four opinions, Tyler and Ginsburg provide us with transcripts of three previously unpublished speeches given by the Justice in recent years that address her litigation strategies in dealing with gender discrimination, the influence of Justice Brandeis on her career as a gender rights advocate and jurist, the influence of important Jewish women on her life and career, and her love of the United States (pp. 245-261). The book then concludes with a heartfelt tribute to the late Justice on behalf of co-author and former law clerk Amanda L. Tyler. This work beautifully takes the reader through a successive timeline of the Justice's life and work, beginning with her career as a litigator and evolving through her judicial confirmation and work on the Supreme Court. In addition to providing a rare glimpse into the mind of the late Justice and a repository of her favorite cases, the work provides readers with insight into conceptualizing and developing civil rights litigation strategy from one of the most well-known gender equality figures in our nation’s history. It stands as both a memorial and tribute to the life of the late Justice, and an educational toolkit for scholars, activists, and those working in the legal profession.
CASES:
BURWELL v. HOBBY LOBBY STORES INC, 573 U.S. 682 (2014).
FRONTIERO v. RICHARDSON, 411 U.S. 677 (1973).
LEDBETTER v. GOODYEAR TIRE & RUBBER CO., 550 U.S. 618 (2007).
MORITZ v. COMM’R OF INTERNAL REVENUE 469 F.2d (10th Cir. 1972).
SHELBY CNTY. v. HOLDER, 570 US 529 (2013).
UNITED STATES v. VIRGINIA, 518 US 515, 550 (1996).
WEINBERGER v. WIESENFELD, 420 U.S. 636 (1975).
© Copyright 2021 by author, Christine M. Bailey.
