Tribute to Justice Ruth Bader Ginsburg
By Candace Kovacic-Fleischer
September 20, 2020
Ruth Bader Ginsburg was a remarkable woman. I had the honor to know her slightly. When she was Professor Ginsburg, she reviewed my first article, written in 1983, “Applying Restitution to Remedy a Discriminatory Denial of Partnership.” WCL was considering me for tenure. Then- Professor Ginsburg said the article illustrated why she always told her students they should study a variety of subjects, not just focus on discrimination law. Many areas of the law can support antidiscrimination.
As everyone knows, Justice Ginsburg made the lives of women better. One of her cases, United States v. Virginia (1997), had a major impact on women’s education as well as the law of remedies. Virginia funded the all-male Virginia Military Institute (VMI) but had no comparable school for women. Virginia argued that admitting women would destroy VMI’s “adversative” method of education. Cadets lived in barracks with no privacy and were subjected to harsh treatment for seven months. When I taught the case before it reached the Supreme Court, I asked students what the remedy would be if exclusion of women were unconstitutional. Most gender discrimination cases involved removing a legal impediment. Here, the question would be whether women would simply be housed in the VMI dorms.
The Court held that Virginia was violating the Equal Protection Clause of the Fourteenth Amendment. Justice Ginsburg wrote the majority opinion. She was joined by five justices. One justice concurred, and one dissented. Justice Thomas took no part. His son was at VMI. Justice Ginsburg importantly said “’Inherent differences’ between men and women…remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” The Court held that women who had the ability to attend VMI should be allowed to do so.
Justice Ginsburg resolved the remedial question. She said, “women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets.” I was thrilled. This case meant that biological differences between men and women could not necessarily provide an excuse for discrimination against women. Since the most immutable difference between men and women is the ability to be pregnant, I wrote an article applying her reasoning, “United States v. Virginia’s New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting and Title VII.” I sent it to her. She wrote back that she was about to take a trip and would enjoy reading it on the plane. I will remember her always.