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I Dissent: How Ruth Bader Ginsburg Became the Notorious Rbg I DISSENT: HOW RUTH BADER GINSBURG BECAME THE NOTORIOUS RBG CLE Credit: 1.0 Friday, June 14, 2019 11:20 a.m. – 12:20 p.m. Grand Ballroom Galt House Hotel Louisville, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgement pf the induvial legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i I Dissent: How Ruth Bader Ginsburg Became the Notorious RBG .................................. 1 Ginsburg Dissent Gonzales v. Carhart ...................................................................................................... 13 Ginsburg Dissent Ledbetter v. Goodyear Tire & Rubber Co. ..................................................................... 27 Ginsburg Dissent Shelby County, Ala. v. Holder ........................................................................................ 37 THE PRESENTER Irin Carmon Brooklyn, New York IRIN CARMON is a journalist, the bestselling co-author of Notorious RBG, and a frequent speaker around the country. A New York Magazine senior correspondent and on-air CNN contributor, she reports and comments on gender, politics, and the law. The New York Times described Ms. Carmon as being "known for her smarts and feminist bona fides." Of Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015) which spent three months on the Times' bestseller list, the paper’s staff book critic wrote, "That I responded so personally to it is a testimony to Ms. Carmon's storytelling and panache.” Ms. Carmon and her co-author were featured in the award-winning 2018 documentary RBG. In 2017 and 2018, Ms. Carmon teamed up with the Washington Post’s investigative team to break the news of sexual harassment and assault allegations against Charlie Rose, as well as CBS's knowledge of his conduct. That work was recognized with a 2018 Mirror Award. She was also a contributing writer to the Post’s Outlook section. Ms. Carmon previously served as staff reporter focusing on women’s rights at MSNBC and NBC News, Salon and Jezebel. Her reporting and commentary has appeared across print, radio, television, and digital platforms. She speaks frequently across the country on women's leadership and rights. In 2011, she was one of Forbes' 30 Under 30 in Media. She graduated from Harvard, magna cum laude, with highest honors in literature, in 2005. i ii I DISSENT: HOW RUTH BADER GINSBURG BECAME THE NOTORIOUS RBG On the morning of June 25, 2013, Justice Ruth Bader Ginsburg read aloud her dissent from the bench in the Supreme Court’s case Shelby County, Ala. v. Holder,1 in which a majority of the Court overturned a portion of the Voting Rights Act of 1965 as unconstitutional.2 Atop her robe, she wore her black jabot with scalloped glass beads, which has since been popularly referred to as her “dissent collar.”3 Just the day before, Justice Ginsburg had read aloud two dissents from the bench, one in an affirmative action case and another in two workplace discrimination cases.4 “Announcing a majority opinion in the court chamber is custom, but reading aloud in dissent is rare. It’s like pulling the fire alarm, a public shaming of the majority that you want the world to hear.”5 “‘Hubris is a fit word for today’s demolition of the VRA,’ RBG had written in her opinion. Killing the Voting Rights Act because it had worked too well, she had added, was like ‘throwing away your umbrella in a rainstorm because you are not getting wet.’”6 Justice Ginsburg read dissents from the bench in five cases during the 2012-2013 term, which broke a 50-year record among all justices.7 Following her dissent in Shelby County, progressives on the Internet began creating images and memes supporting Justice Ginsburg to convey their frustration with the Court’s decision.8 Shana Knizhnik, a law student at NYU, created a Tumblr as a tribute to Justice Ginsburg, and “Notorious R.B.G.” was born.9 Ruth Bader Ginsburg’s experiences as a Jewish woman coming of age in the U.S. in the early 1950s stimulated the focus she would later take during her professional career on gender issues and equality of the sexes. While sitting shivah for her mother, who died of cancer days before her high school graduation, Ruth was angered that women did not count for the minyan, the quorum of ten men needed to say prayers for the dead.10 She attended college at Cornell University, where women were admitted in a ratio of one to four with men.11 Professional schools for law, medicine, and other traditionally “male” 1 570 U.S. 529 (2013). 2 Carmon, Irin Carmon & Knizhnik, Shana, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: HarperCollins, 2015), pgs. 2-3. 3 Id. at 2. 4 Id. 5 Id. at 3. 6 Id. at 4. 7 Id. at 5. 8 Id. at 6-7. 9 Id. at 7. See also https://notoriousrbg.tumblr.com/. 10 Id. at 28; see also De Hart, Jane Sherron, Ruth Bader Ginsburg: A Life (New York: Alfred A. Knopf, 2018), at 26. 11 De Hart, supra note 10 at 39. 1 professions limited the number of women admitted to a maximum of 10 percent.12 Prior to marrying her college sweetheart, Marty Ginsburg, Ruth briefly considered applying to business school along with her fiancé. However, Harvard Business School would not accept women, and both Ginsburgs decided to apply to Harvard Law School instead.13 Following their wedding, Marty signed up for two additional years of ROTC at the end of the Korean War. The Ginsburgs deferred law school for two years to move to Fort Sill, Oklahoma.14 While there, Ruth took the civil service exam to work for the federal government, qualifying to be a claims adjuster with the Social Security office at the GS-5 rank.15 However, when she notified her supervisors she was three months pregnant, they dropped her rank to GS-2, the lowest rank with the least amount of pay and responsibility.16 After moving back from Oklahoma in 1956, Ruth began classes at Harvard Law School, one of nine women in a class of 552 students.17 Her daughter, Jane, had just celebrated her first birthday that July.18 At the time, there were no women on the faculty at Harvard Law.19 Following a dinner at his home, law school dean Erwin Griswold asked each of his female students “‘Why are you at Harvard Law School, taking a place that could have gone to a man?’”20 After making law review as one of only two women,21 Ruth was barred from checking a footnote at Lamont Hall, Harvard’s undergraduate library, because only men were allowed in the reading room where the journal she needed was kept.22 Some professors would hold “Ladies’ Day” when they would only call on the female class members asking humiliating questions.23 Male classmates gave the female students nicknames; Ruth’s were “Ruthless Ruthie” and “Bitch.”24 During exams in Langdell Hall, female students were forced to walk a block to Austin Hall to use the restroom because there was no women’s room in the building.25 12 Id. at 40. 13 Id. at 45. 14 Id. at 49. 15 Carmon, supra note 2 at 32. 16 Id. at 33. 17 De Hart, supra note 10 at 54. 18 Id. at 51. 19 Id. at 55. 20 Id. at 56. 21 Carmon, supra note 2 at 35. 22 De Hart, supra note 10 at 58. 23 Carmon, supra note 2 at 35. 24 De Hart, supra note 10 at 58. 25 Id. at 59. 2 In late 1957, Marty Ginsburg was diagnosed with cancer.26 Ruth juggled caring for her daughter, helping Marty with cancer treatment and completion of his third year in law school, and her own studies and law review assignments.27 With Ruth’s aid, Marty survived cancer and graduated magna cum laude the following spring.28 After his graduation, the Ginsburgs moved to New York for Marty’s new job at a firm in Manhattan.29 Ruth transferred to Columbia for her last year, where she graduated in 1959 tied for first place in her class.30 Despite her academic success, the New York firm where she clerked the previous summer did not offer her a job.31 She received only two second interviews while at Columbia, and neither firm made an offer.32 Sex and motherhood, the rejected candidate soon discovered, were her downfall. Clients, she was told, would be uneasy with a woman. Other members of the firm too might feel uncomfortable. Or, she would be ill at ease in such a masculine environment…. How could she, with all of her family obligations, possibly have time for the informal social activities that generated client contacts?33 Columbia professor Gerald Gunther interceded on Ruth’s behalf, eventually securing her a clerkship with Judge Edmund L. Palmieri with the U.S. District Court for the Southern District of New York.34 Following a successful clerkship for Judge Palmieri, Ruth Ginsburg accepted an invitation from Hans Smit, founding director of the Columbia Law School’s Project on International Procedure, to help co-author a book on the Swedish legal system.35 The project required her to move to Sweden on a temporary basis and spend a year learning the Swedish language.36 While there, Ruth was exposed to Swedish culture’s efforts toward achieving greater gender equality, which included a “government- appointed commission to study women’s issues and propose policies to promote equality between the sexes.”37 26 Id.
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