In a recent New Republic column, Harvard law professor Randall Kennedy argues that Supreme Court Justice Ruth Bader Ginsburg should retire for fear that if she departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.
I would be surprised if Ginsburg retires at the end of this term. At 79, she remains a vital voice on the court.
And the good job (as she described it) was not easily won. In my new book, I argue that the struggle for equality for women in the law profession is inextricably tied to the suffrage movement.
More than a half century later, the cruel treatment of women at Harvard Law School illustrated that women were still unwanted in the male-centric field of law. A sampling of the most well-known women slighted: Hillary Clinton, who was told she need not even apply, and Patricia Schroeder and Elizabeth Dole, who have recounted their cruel treatment in interviews and speeches.
Special ladies days would be reserved for women to ask questions in class and, repeatedly, female students were asked to defend why they were taking the place of a man who would actually use his legal education.
Harvards dean refused to allow Ginsburg to retain her status at Harvard while finishing her legal studies at Columbia University due to her husbands illness and relocation to New York despite her high grades and Law Review membership.
Sandra Day OConnor and Ginsburgs experiences are tied to their generation: They both struggled to overcome gender stereotypes to earn their legal educations and both experienced gender discrimination upon graduating from law school.
They frequently wove the history of women in law through speeches that accentuated the progress made by women. In one of OConnors most famous speeches, Portias Progress, she offers a history lesson that emphasizes the spunk, spirit and wit of the first female lawyers.
Ginsburgs lifes work and speeches are replete with a call for gender equality. Like OConnor, she often quotes historic women and concurred in 2001 with Sarah Grimkes hopeful prediction that Women, I fully expect, will even in my lifetime come to serve the cause of justice in numbers fully reflective of their talent.
In her own lifetime, Ginsburg has become a historic figure in the fight for gender equality.
Almost 20 years later, a
third woman would be named to the Supreme Court, and in that time societys response to women had changed.
Sonia Sotomayors quick and lively questioning on the bench at the start of her tenure as a justice and the lively repartee exhibited by Elena Kagan during her confirmation hearings are further proof of their confidence and comfort with their place in the halls of power. They rose up with greater ease than OConnor and Ginsburg, but they still endured ridicule and gender bias in the press, which from the early 1980s to 2009 had coarsened in its treatment of all subjects, especially women angling for powerful positions.
OConnor and Ginsburg had to smooth the way, build awareness, enlighten, educate and advocate for gender equality. As they speak less of obstacles they have faced, they can now exercise a full range of rhetorical options.
Perhaps Ginsburg is an optimist and has every expectation that President Barack Obama will win re-election despite what appears now to be a close race. She has fought hard for the privilege of serving on the Supreme Court and is unlikely to step down for cautious political practicality.
I hope Ginsburg continues to speak fully and for a long time on the Supreme Court.
Nichola D. Gutgold is an associate professor of communication arts and sciences at Penn State Lehigh Valley and author of six books, including the forthcoming The Rhetoric of Supreme Court Women: From Obstacles to Options, for which she interviewed Justices Ginsburg, OConnor and Sotomayor.