Aziz Huq on Ruth Bader Ginsburg and the Future of the Supreme Court

Ginsburg helped those excluded by the legal system. The court needs that view.

The death of Ruth Bader Ginsburg has left the two of us bereft of a mentor and exemplar of how to live a meaningful life in the law. But the loss to the court and the country is greater. It goes beyond her penetrating commitment to women’s rights. For the court is the sum of its members’ legal experience, and following Ginsburg’s death, there will be no justice who has experience representing people whom the law has excluded from full membership in American society. There will, in contrast, be eight justices who have worked for the executive branch or as a prosecutor. So lopsided a bench cannot fairly account for the rich range of human interests the court must consider.

Before she became a judge, Ginsburg famously litigated strategic cases on behalf of the Women’s Rights Project of the American Civil Liberties Union. These established the 14th Amendment’s Equal Protection Clause precluded discrimination on the basis of sex. She also championed male plaintiffs who demonstrated the burdens an ideology of gender-separate spheres imposed on all — as when, in a 1975 case, she argued on behalf of Stephen Wiesenfeld that the denial of Social Security benefits to widowers but not widows amounted to an unjust replication of stereotypes. Robert Bork, representing the U.S. government as solicitor general, scoffed at the very premise of the case: Wiesenfeld’s desire to take care of his young son, said Bork incredulously, was an obvious fabrication. But Ginsburg knew better: Her litigation, both for men and women, rested on her ability to perceive how rigid stereotypes kept people cruelly locked out of opportunities — whether taking time out of the workforce to care for one’s children or serving in the armed forces — that give meaning to our lives.

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