A Letter from the Co-Dean to the Rutgers Law School Students, Faculty, and Staff on September 20, 2020
In an 1872 Supreme Court opinion upholding Myra Bradwell’s exclusion from the practice of law based solely on her sex, Justice Bradley reminded us that:
[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
How extraordinary that a Court where a Justice wrote those words would eventually count among its members one of the most impactful voices for gender equality that our modern legal system has ever had.
The tremendous sadness that I felt upon hearing of the death of Justice Ginsburg is an emotion that I know many of you share. The arc of her life and career holds lessons for all of us. Her journey began in Brooklyn and ended with a seat on our country’s highest court where she was a consistent advocate for equality under the Constitution. She attended Cornell on a full scholarship and went on to be one of nine women in her entering class at Harvard Law school, later transferring to Columbia Law School from which she graduated at the top of her class. Academic excellence was insufficient to overcome her identity as a Jewish woman with a young child, and the law firm world had no place for her. Luckily for all of us, especially those of us who are women in law, she became a professor at Rutgers Law School in Newark where her lifelong commitment to gender equality would be ignited and nourished.
There are few lawyers who can say that their work impacted the law in the way that Justice Ginsburg’s long campaign against gender discrimination did. In Reed v. Reed (1971), a case for which she authored the Supreme Court brief, the Court, for the first time, struck down a state law that discriminated on the basis of gender. After she joined the Court, Justice Ginsburg wrote the majority opinion in United States v. Virginia (1996), a case challenging the admissions policies of the all-male Virginia Military Institute (VMI). Relying in part on Reed v. Reed, the Court held that the state could not fix its XIVth Amendment violation by creating an all-female academy in order to continue to exclude women from VMI. What a coup that she could rely on precedent that she made to strike down a longstanding vestige of gender discrimination.
In the last decades of her time on the Court, Justice Ginsburg often wrote in dissent--- a role whose power she well understood. She explained, "Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow."
As we remember this remarkable woman, let’s all find our own way to dissent from the majority to make space for the marginalized, trampled, and disempowered. The role frequently will not bear fruit in the present, but it sets the stage for the future. Gender discrimination is not a relic of the past, but the road to that end was paved by women (and men) who, like Justice Ginsburg, knew that law is as powerful a tool of uplift as it is a tool of oppression. She was neither timid nor delicate as Justice Bradley thought all women should be, but moved through the world with boldness and strength. May her memory be a revolution.
Co-Dean Kim Mutcherson