The Way Women Are

The opinions in the book cover issues of equal rights, gender discrimination, separation of church and state, workers’ rights, voting powers, and abortion. 

(Photo by Joanne Rathe/The Boston Globe via Getty Images)

While we all know a lot about Ruth Bader Ginsburg, few of us (even lawyers) have studied her opinions.  They say the way to know a person’s mind is through her words, and one of the best ways to appreciate how RBG thought is to read the recently released book, The Way Women Are, Transformative Opinions and Dissents by Justice Ruth Bader Ginsburg.

The brief introduction describes Justice Ginsburg’s background, early dealings with suffering (the death of her mom at age I6, then sickness of her husband when both attended Harvard Law), her teaching career, and subsequent rise to the Supreme Court.

But much of this background has already been covered in documentaries, books, and even a movie based on her life, On the Basis of Sex. What the book adds is actual excerpts from her opinions that shed further light on her brilliance. A fine crafter of words and student of history, her decisions are peppered with famous quotes from world leaders like Martin Luther King Jr., references to opera and historic events, and subtle sarcasm aimed at fellow brethren.

The book covers l2 cases, some of which she, herself, argued in front of the Supreme Court before becoming a judge there. (Ginsburg got this opportunity by working with the ACLU where she co-founded the Women’s Rights Project.) Her major tenet, as articulated in her oral argument before the Supreme Court in Frontiero v. Laird, is the proposition that, “Sex, like race, bears no necessary relationship to ability.”

The opinions in the book cover issues of equal rights, gender discrimination, separation of church and state, workers’ rights, voting powers, and abortion.  Each contains a quotable quote or reference to antiquated case law based on ideas she hoped to debunk.

In part because she was a minority — as a woman and as a Jew — struggling in a largely Christian, male world, her experience was unique among fellow jurists. As a child, when traveling with her family, she saw signs like, “No dogs or Jews allowed.”

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Such memories cut deep and informed her opinions on the court.

In her 20I9 dissent in American Legion vs. American Humanist Assn, she took on the issue of the posting of “an immense Latin cross standing alone on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.” While the majority opinion, penned by Justice Samuel Alito, reasoned the cross had become a secular symbol, Ginsburg called it a blatant violation of the separation of church and state, alienating non-Christians.

“By maintaining the Peace Cross on a pubic highway, the state places Christianity above other faiths and conveys a message of exclusion to non-Christians, nearly 30% of the U.S. population, telling them they are outsiders, not full members of the political community.”  (The only other justice to join in her dissent was Justice Sonia Sotomayor.)

She was fearless when defending a cause, and more than willing to challenge sloppy logic and reasoning where she saw it.

The book presents the meat and potatoes of how Ginsburg thought, not the soundbites, and as such takes a bit of slogging through. But it’s worth the effort to find such gems as the quote she took from abolitionist Sarah Grimke, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” Or, regarding the notion that men and women had long been treated as separate and not equal, “A man’s world and a woman’s place have confronted each other since Scylla first faced Charybdis.” She went on to call such notions, “legal deadwood which should be relegated to museum pieces.”

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As times changed, so did her tone. No longer in the majority, her dissents moved from “respectfully dissenting,” to the more plain-spoken, “I dissent,” in the Bush v. Gore hanging-chad election case, to finally “I strongly dissent,” in Gonzales v. Carhart, where restrictions on a woman’s right to abortion were upheld. There she wrote, “Challenges to undo restrictions on abortion procedures do not seek to vindicate some vague or generalized notion of privacy, rather, they hone in on a woman’s autonomy to decide for herself her life’s course and thus to enjoy equal citizenship stature.”

Throughout all this she maintained civility with her fellow judges even when she disagreed with them. She was a good friend of Antonin Scalia, who shared a fierce love of opera, even though their decisions from the bench were often diametrically opposed.

It’s rare to have such a prescient, iconic leader on the Supreme Court who articulated simmering values of the times merely awaiting formal articulation in order for them to be recognized and accepted.

While simply appointing a female judge will fill her seat, it won’t fill her shoes.  Ginsburg disfavored any gender-based discrimination whether in favor of men or women.

Replacing her with a woman, just because she’s a woman, is meaningless.  More difficult will be finding a jurist of similar stature, conviction, and courage.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.