The Courts

Supreme Court Justice Ruth Bader Ginsburg Dead at 87

Associate Justice Ruth Bader Ginsburg poses for the official photo at the Supreme Court in Washington, DC on November 30, 2018. (Photo by MANDEL NGAN / AFP) (Photo credit should read MANDEL NGAN/AFP via Getty Images)

Supreme Court Justice Ruth Bader Ginsburg, the feminist professor and lawyer who became a progressive heroine, died Friday, giving President Donald Trump a last-minute chance to nominate a third jurist to the High Court.

Ginsburg, 87, died in her Washington, D.C., home, according to a statement released by the Court, and was surrounded by her family. The cause was complications of metastatic pancreatic cancer.

"Our nation has lost a jurist of historic stature," Chief Justice John Roberts said in a statement. "We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her—a tireless and resolute champion of justice."

In her final days, the justice allegedly dictated a statement to her granddaughter, Clara Spera, asking that her successor not be named until after the presidential election, according to NPR.

"My most fervent wish is that I will not be replaced until a new president is installed," Ginsburg said.

Her death, just 46 days out from the presidential election, has added a new element to a race, offering Trump an opportunity to energize his base. And Ginsburg's passing will scramble the composition of the Supreme Court just weeks out from a new term in which the justices will weigh cases about religious liberty and police immunity—and decide the fate of President Barack Obama's Affordable Care Act.

Ginsburg was born in 1933 to Nathan and Celia Bader of Brooklyn, N.Y. Known then as "Kiki Bader," her early years were marked by triumph and tragedy. Though she flourished academically and was admitted to Cornell University, her mother and older sister died before she graduated from high school.

Ginsburg went on to Harvard Law School, but completed her legal education at Columbia University in New York City. Despite her sterling academic credentials, she was snubbed for a coveted Supreme Court clerkship with Justice Felix Frankfurter in 1960. Frankfurter told Ginsburg patron Albert Sachs that he was not ready to take on a woman.

A different mentor, Professor Gerald Gunther, secured Ginsburg a clerkship by threat: He told U.S. District Judge Edmund Palmieri that he would never recommend another Columbia student for his chambers if he refused to hire Ginsburg. Palmieri agreed, on the condition that Gunther enlist an alternative male candidate should Ginsburg prove unsatisfactory.

Excepting a nine-year interlude at Rutgers Law School, Columbia was Ginsburg’s perch until her elevation to the federal bench in 1980. As a researcher and later the first tenured woman on the law faculty, Ginsburg coauthored the first casebook on sex discrimination, founded the women’s rights project at the American Civil Liberties Union, and learned Swedish to write a book on civil procedure in Sweden.

At the ACLU, she was the chief strategist of a clever, incrementalist campaign to effect social and political change for women through the courts. The thrust of her work was the steady expansion of the 14th Amendment’s equal protection clause to prohibit distinctions in law based on sex.

Though civil rights expanded under Chief Justice Earl Warren, the justices of that era consistently embraced traditional views about gender equality and believed many sex-specific classifications were benign. Seven years after Brown v. Board of Education, for example, the Court unanimously upheld a Florida law excusing women from mandatory jury service on the theory that it interfered with domestic duties.

Writing in the Journal of Law and Inequality, David Cole described Ginsburg’s strategy as "assimilationist." She meant to show that women were like men, that supposed differences between the sexes were mostly learned social behaviors. To that end, she recruited sympathetic plaintiffs with modest claims to demonstrate over time that sex stereotypes were invidious.

"Ginsburg used both legal argument and her own personal example to establish the then-radical notion that women are similar to men," Cole wrote. "She placed herself in the dominant male culture and argued to men, and for men, on behalf of women's general inclusion. She played by men's rules, and she prevailed."

One of Ginsburg’s clients before the High Court was a female Air Force officer challenging a military benefits statute. Another was a widower denied Social Security survivor benefits after the death of his wife in child birth. The fruit of her gradual approach was a growing body of case law that refused to countenance disparate treatment of men and women.

The apex of her work was the 1976 Craig v. Boren case. The dispute was typical of Ginsburg’s tactical savvy: The client, Curtis Craig, was challenging a sex-specific Oklahoma law that discriminated against men. The law provided that women could purchase beer with a 3.2 percent alcohol content at 18, while men had to be 21.

In a far-reaching decision, a plurality of the Court declared that sex-based classifications would be subject to "intermediate scrutiny," or rigorous, but not insurmountable, judicial review.

The assimilation approach had limitations. Ginsburg’s arguments were not readily applicable to disputes over abortion or pregnancy discrimination, where real biological differences are irrefutable. Yet Cole suggested Ginsburg did the best she could despite powerful headwinds.

"Ginsburg faced significant constraints," Cole wrote. "General male assumptions, such as the protective nature of benign discrimination, and specific legal doctrine imposed limitations upon Ginsburg's strategy."

Martin Ginsburg’s social prowess was a boon for his wife’s judicial prospects. When former president Jimmy Carter nominated Mrs. Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in 1980, Senate Republicans were wary of installing a Democrat appointee on the powerful appeals court with a national election in the offing. Mr. Ginsburg mobilized well-placed corporate contacts to shake votes loose. Ruth Bader Ginsburg was confirmed shortly thereafter.

When Bill Clinton was selecting a new justice in 1993, Ginsburg was not initially considered a strong contender. Her many criticisms of the landmark 1973 Roe v. Wade ruling alienated onetime feminist allies, and Ginsburg had argued that Roe was poorly reasoned and swept too far.

But Mr. Ginsburg lobbied scholars, law deans, Democratic Sen. Daniel Patrick Moynihan, and media figures like the legendary legal affairs writer Anthony Lewis, advocating for his wife's nomination. When Mrs. Ginsburg interviewed with White House counsel Bernard Nussbaum, Mr. Ginsburg helped government lawyers parse family tax records going back years.

Reflecting on her nomination in 2016, the justice quoted Clinton aide Ronald Klain as saying that Mr. Ginsburg’s shadow campaign was decisive to her selection.

"I would say definitely and for the record, though Ruth Bader Ginsburg should have been picked for the Supreme Court anyway, she would not have been picked for the Supreme Court if her husband had not done everything he did to make it happen," Klain said.

Justice Ginsburg’s biographer, Jane Sherron De Hart, described Mr. Ginsburg as a "proto-feminist." Long before Mrs. Ginsburg’s ascent to the federal bench, Mr. Ginsburg took up housework like cooking. It was a division of labor that persisted for the length of their marriage.

"As a general rule, my wife does not give me any advice about cooking, and I do not give her advice about the law," Mr. Ginsburg told the New York Times in 1997. "This seems to work quite well on both sides."

Martin Ginsburg died in June 2010 at 78.