Ruth Bader Ginsburg Dissents

Ruth Bader Ginsburg

• Publisher: Canterbury Classics
• Year: 2022
• ISBN:
  9781667201146
• Topic: Politica e relazioni internazionali
• Subtopic: Governo americano

A collection of key dissenting and majority opinions from U.S. Supreme Court justice Ruth Bader Ginsburg. During her 27 years as an associate justice on the U.S. Supreme Court, Ruth Bader Ginsburg became well known for her strongly worded dissenting opinions against the decisions of the conservative majority. Ginsburg was a fierce supporter of women's rights whose personal experiences helped shape her into a feminist icon who employed logical, well-presented arguments to show that gender discrimination was harmful to all members of society. Ruth Bader Ginsburg Dissents features 15 legal opinions and briefs, including majority and dissenting opinions that Ginsburg drafted during her time on the U.S. Supreme Court and briefs from her career before she was appointed to the court in 1993.

Brief for the Appellant in Reed v. Reed

(1971)

Cecil and Sally Reed, a separated couple living in Idaho, both sought to be named administrator of the estate of their son, Richard, who died at nineteen without a will. Idaho law stated that “of several persons claiming and equally entitled to administer, males must be preferred to females,” and Cecil was named the administrator. After numerous appeals, the case reached the United States Supreme Court.

Ruth Bader Ginsburg, then a professor of law at Rutgers University, cowrote a brief for the appellant, in which she argued that the Idaho law arbitrarily favoring men over women was unconstitutional. The Supreme Court unanimously agreed, finding that the Idaho law “cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.” The brief is an early example of Ginsburg’s drive to advance gender equality.

Original footnotes have been retained but renumbered.

ARGUMENT

Introduction

By the explicit terms of Sec. 15-314 of the Idaho Code, appellant was denied the right to qualify as the administrator of her son’s estate solely because of her sex. The issue in this case is whether, as appellant contends, mandatory disqualification of a woman for appointment as an administrator, whenever a man “equally entitled to administer” applies for appointment, constitutes arbitrary and unequal treatment proscribed by the fourteenth amendment to the United States Constitution.

In determining whether a state statute establishes a classification violative of the fourteenth amendment guarantee that those similarly situated shall be similarly treated, this Court has developed two standards of review. See Developments in the Law—Equal Protection, 82 Harv. L. Rev. 1065 (1969).

In the generality of cases a test of reasonable classification has been applied: Does the classification established by the legislature bear a reasonable and just relation to the permissible objective of the legislation? Under this general test, if the purpose of the statute is a permissible one and if the statutory classification bears the required fair relationship to that purpose, the constitutional mandate will be held satisfied. F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (“But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”).

In two circumstances, however, a more stringent test is applied. When the legislative product affects “fundamental rights or interests,” e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 670 (1966) (poll tax in state elections), or when the statute classifies on a basis “inherently suspect,” this Court will subject the legislation to “the most rigid scrutiny.”¹ Thus, a statute distinguishing on the basis of race or ancestry embodies a “suspect” or “invidious” classification and, unless supported by the most compelling affirmative justification, will not pass constitutional muster. Graham v. Richardson, —— U.S. —— June 14, 1971); McLaughlin v. Florida, 379 U.S. 184 (1964); Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948).

It is appellant’s principal position that the sex line drawn by Sec. 15-314 of the Idaho Code, mandating subordination of women to men without regard to individual capacity, creates a “suspect classification” for which no compelling justification can be shown. It is appellant’s alternate position that, without regard to the suspect or invidious nature of the classification, the line drawn by the Idaho legislature, arbitrarily ranking the woman as inferior to the man by directing the probate court to take no account of the respective qualifications of the individuals involved, lacks the constitutionally required fair and reasonable relation to any legitimate state interest in providing for the efficient administration of decedents’ estates.

In very recent years, a new appreciation of women’s place has been generated in the United States.² Activated by feminists of both sexes, courts and legislatures have begun to recognize the claim of women to full membership in the class “persons” entitled to due process guarantees of life and liberty and the equal protection of the laws. But the distance to equal opportunity for women—in the face of the pervasive social, cultural and legal roots of sex-based discrimination³—remains considerable. In the absence of a firm constitutional foundation for equal treatment of men and women by the law, women seeking to be judged on their individual merits will continue to encounter law-sanctioned obstacles.

Currently, federal and state measures are beginning to offer relief from discriminatory employment practices.⁴ Principal measures on the national level are the Equal Pay Act of 1963,⁵ Title VII of the Civil Rights Act of 1964,⁶ and Executive Orders designed to eliminate discrimination against women in federal jobs and jobs under federal contracts.⁷ These developments promise some protection of the equal right of men and women to pursue the employment for which individual talent and capacity best equip them. But important as these federal measures are, their coverage is limited. Even in the employment area they cover only a small percentage of the nation’s employers and less than half of the labor force.⁸ They provide no assistance at all in the many areas apart from employment, as in the case at bar for example, where women are relegated to second class status.

The experience of trying to root out racial discrimination in the United States has demonstrated that even when the arsenal of legislative and judicial remedies is well stocked, social and cultural institutions shaped by centuries of law-sanctioned bias do not crumble under the weight of legal pronouncements proscribing discrimination. Thus, just as the Equal Pay Act and Title VII have not ended discrimination against women even in the employment spheres to which they apply, sex-based discrimination will not disintegrate upon this Court’s recognition that sex is a suspect classification. But without this recognition, the struggle for an end to sex-based discrimination will extend well beyond the current period in time, a period in which any functional justification for difference in treatment has ceased to exist.

Very recent history has taught us that, where racial discrimination is concerned, this Court’s refusal in Plessy v. Ferguson, 163 U.S. 537 (1896), to declare the practice unconstitutional, reinforced the institutional and political foundations of racism, made it more difficult eventually to extirpate, and postponed for fifty-eight years the inevitable inauguration of a national commitment to abolish racial discrimination.

As an example of the slow awakening of the national conscience to the more subtle assignment of inferior status to women, this Court a generation ago came close to repeating the mistake of Plessy v. Ferguson. See Goesaert v. Cleary, 335 U.S. 464 (1948). Fortunately, the Court already has acknowledged a new direction, see United States v. Dege, 364 U.S. 51, 54 (1960), and the case at bar provides the opportunity clearly and affirmatively to inaugurate judicial recognition of the constitutionally imperative claim made by women for the equal rights before the law guaranteed to all persons.

In sum, appellant urges in Point I of this brief that designation of sex as a suspect classification is overdue, is the only wholly satisfactory standard for dealing with the claim in this case, and should be the starting point for assessing that claim. Nonetheless, as developed in Point II of this brief, it should be apparent that the reasonable relation test also must yield a conclusion in favor of the appellant. Surely this Court cannot give its approval to a fiduciary statute that demands preference for an idler, because he is a man, and rejects a potentially diligent administrator solely because she is a woman. In addition to the argument based on the traditional reasonable relation test, Point II formulates a modification of that test, appropriate in the event this Court, contrary to appellant’s primary position, would delay recognition of sex as a suspect classification. The proposed modification would reverse the presumption of rationality when sex is implicated and, rather than requiring the party attacking a statute to show that the classification is irrational, would require the statute’s proponent to prove it rational.

I.
The sex-based classification in Section 15-314 of the Idaho Code, established for a purpose unrelated to any biological difference between the sexes, is a “suspect classification” proscribed by the fourteenth amendment to the United States Constitution.

A. Sex as a Suspect Classification.

Commanding a preference for men and the subordination of women, Section 15-314 of the Idaho Code reflects a view, prevalent in the law a generation ago that, with minimal justification, the legislature could draw “a sharp line between the sexes.” Goesaert v. Cleary, 335 U.S. 464, 466 (1948). Similarly, it was once settled law that differential treatment of the races was constitutionally permissible. Plessy v. Ferguson, 163 U.S. 537 (1896). Today, of course, a classification based on race, nationality or alienage is inherently “suspect” or “invidious” and this Court has required “close judicial scrutiny” of a statute or governmental action based upon such a classification. Graham v. Richardson, —— U.S. —— (June 14, 1971). The proponent of a measure creating “classifications constitutionally suspect” must establish an “overriding statutory purpose,” McLaughlin v. Florida, 379 U.S. 184, 192 (1964), and bears “a very heavy burden of justification.” Loving v. Virginia, 388 U.S. 1, 9 (1967).

It is only within the last half-dozen years that the light of constitutional inquiry has focused upon sex discrimination. Emerging from this fresh examination, in the context of the significant changes that have occurred in society’s attitudes,⁹ is a deeper appreciation of the premise underlying the “suspect classification” doctrine: although the legislature may distinguish between individuals on the basis of their ability or need, it is presumptively impermissible to distinguish on the basis of congenital and unalterable biological traits of birth over which the individual has no control and for which he or she should not be penalized. Such conditions include not only race, a matter clearly within the “suspect classification” doctrine, but include as well the sex of the individual.¹⁰

The kinship between race and sex discrimination has attracted increasing attention. A capsule description of the close relationship between the two appears in Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv. L. Rev. 1499, 1507–1508 (1971) (original footnotes retained but renumbered):

The similarities between race and sex discrimination are indeed striking.¹ Both classifications create large, natural classes, membership in which is beyond the individual’s control;² both are highly visible characteristics on which legislators have found it easy to draw gross, stereotypical distinctions. Historically, the legal position of black slaves was justified by analogy to the legal status of women.³ Both slaves and wives were once subject to the all-encompassing paternalistic power of the male head of the house.⁴ Arguments justifying different treatment for the sexes on the grounds of female inferiority, need for male protection, and happiness in their assigned roles bear a striking resemblance to the half-truths surrounding the myth of the “happy slave”.⁵ The historical patterns of race and sex discrimination have, in many instances, produced similar present day results. Women and blacks, for example, hold the lowest paying jobs in industry, with black men doing slightly better than white women.⁶ …

The factual similarities between race and sex discrimination are reinforced by broader concerns. Through a process of social evolution, racial distinctions have become unacceptable. The old social consensus that race was a clear indication of inferiority has yielded to the notion that race is unrelated to ability or performance...