On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law

Abstract

Most Americans know Ruth Bader Ginsburg as a feminist icon whose likeness can still be found (more than two years after her passing) on T-shirts, mugs, and stickers. Images of the “Notorious RBG” usually show her in Supreme Court robes with the kind of stylish white collar the justice favored, and fans can now buy or get knitting patterns for the collar online. This cult following really grew in the new millennium, when Ginsburg developed a reputation for fiery opinions that thrilled progressives and liberals frustrated with conservatives on the Court and in Congress.But political scientist and legal expert Philippa Strum boldly argues that Ginsburg made her real impact on the law years before her 1993 nomination. On Account of Sex: Ruth Bader Ginsburg and the Making of Gender Equality Law focuses on Ginsburg's work in the 1970s for the American Civil Liberty Union's (ACLU) Women's Rights Project. This short, compelling book does a far better job than RBG, the 2018 documentary, to explain the work involved in bringing cases to the Court as well as Ginsburg's legal tactics, failures, and successes. She embraced opportunities to highlight to an all-male Court that sex discrimination affected women and men. She also later admitted taking inspiration from one of those justices, former NAACP attorney Thurgood Marshall. He pursued cases that Ginsburg recognized as “building blocks” that had led to the monumental 1954 Brown v. Board of Education decision (40). “We copied that,” Ginsburg admitted, because, she insisted, “real change, enduring change . . . happens one step at a time” (40, 53–54). But the Court resisted a clear forward march toward gender equality in the 1970s. Ginsburg pithily summarized it as a halting move “From No Rights to Half Rights to Confusing Rights” in a 1978 law review article published just two years before Jimmy Carter nominated her to the US Court of Appeals (142).Strum's account refreshingly stresses that RBG was never the only person, never the only woman lawyer, advancing the cause of women's rights or fighting sex discrimination. As such, On Account of Sex implicitly critiques the singular focus on RBG as a jurist as well as a lawyer. The book instead illustrates the value of telling the stories of the many people and movements fighting for lasting change. Strum, for example, highlights how legal icons Dorothy Kenyon and Pauli Murray pressured the ACLU to start the Women's Rights Project years before Ginsburg joined. Strum emphasizes that Ginsburg worked with others on or affiliated with that project and that she also relied on the work of her Columbia law students as well as attorneys connected to other important initiatives, like the still-potent Southern Poverty Law Center. Strum, like RBG, also recognizes the bravery of the ordinary people willing to go to court, including Susan Struck, an unwed air force captain who was given the choice to leave the service or terminate her pregnancy before the 1972 Roe decision, and widower Stephen Wiesenfeld, who asked for the child-in-care payments available to widows in the 1935 Social Security Act.On Account of Sex raises important questions for labor historians about what has been and is publicly recognized as an economic right. Strum helpfully explains that the Women's Rights Project could not pursue abortion rights because a principal funder, the Ford Foundation, forbade it. But Ginsburg and other litigators could and did take cases to protect the workplace rights of pregnant people. That imposed siloing of reproductive freedom has had profound consequences, in retrospect, because abortion is often discussed as cultural and religious issues instead of as a right critical to women's ability to work outside the home to support themselves or their families.The importance of employment also underscores how much Ginsburg and other lawyers were wrestling with the inequalities built into the New Deal. Many of the cases that Strum discusses focused on equal access to social welfare programs, job opportunities, and employee benefits. Those basic categories illustrate how the 1970s were not just about the growing power of conservative movements and the declining strength of trade unions. Social justice organizations also looked to the courts to actually enforce the 1964 Civil Rights Act, which barred discrimination on the basis of race, color, sex, and country of origin. Yet those lawsuits were also about increasing access to landmark achievements of the Franklin Delano Roosevelt era, including Social Security. Historians have shown how white men working in manufacturing benefited most from the New Deal, which privileged a male head of household's ability to bargain for a family wage. The widening of inequality as well as the persistence of wage and wealth gaps since the 1970s suggests real limits on what even the Notorious RBG could do to ensure equality, let alone equity, in a system of benefits (not rights) paid through taxes on income and employment. Even in the 1930s, only some citizens would be eligible, but all remained dependent on the pensions, health care plans, and other benefits that employers offered.The need for an American to be employed full time in an eligible sector to receive what other industrialized countries treat as citizenship rights indicates that legal strategies for achieving lasting change, including Marshall's and Ginsburg's incremental approaches, have real limits. On Account of Sex indicates that judicial building blocks could not, for example, provide the parental leave and childcare support that excited Ginsburg when she studied Sweden's post–World War II experiments. There was public demand for and legislative interest in that basic need in the 1970s, but the best Ginsburg could do as a lawyer was win access to the Social Security Act's child-in-care payments for Wiesenfeld and other widowers. Only an act of Congress, the 1993 Family Medical Leave Act, assured Americans twelve weeks of unpaid leave. No one person can be given credit for that small but important step, which illustrates that the kind of hagiography that Strum is writing against obscures more than it reveals about the many battles to make sure every American is treated equally on and off the job.