Sep 28, 2020
News of the death of Supreme Court Justice Ruth Bader Ginsburg at age 87 was a major political event in this country, not just because it gave Trump and the Republicans a chance to name another judge to the Supreme Court, but because Ginsburg had become an icon of the fight against sexual discrimination ... against women and men.
But in reality, Ginsburg’s life and times illustrate something else—that the courts cannot be counted on to protect working peoples’ rights, neither women, nor men.
When Ginsburg graduated from law school in 1959, there were only nine women in her class of 500. And each female student was questioned by the dean about why she thought she deserved to take a job away from a man.
At this time, women were entering the workforce in growing numbers. But like women from both the working class and the middle class looking for a professional job, Ginsburg found that no corporation, court or law school would hire her. In the U.S., “the land of freedom and liberty for all,” the law did not recognize women as those “persons” who enjoy equal rights established by the Constitution.
But in the 1960s, many things were changing. Backward institutions that had been built up over decades and centuries were being swept away by various social movements. First the black movement and then the movement against the war in Vietnam involved millions of people in the streets. The movements extended from black urban uprisings to prisoners’ rebellions, to resistance in the armed forces. These fights became the immediate spur to the women’s struggle for equal rights.
These movements provided new ideas and experiences that inspired Ginsburg, as a young, unknown lawyer, to take on the discriminatory legal structure. The first case that Ginsburg brought to the Supreme Court (Reed v. Reed, 1971), challenged an Idaho law that considered men to be more competent and intelligent than women in administering wills. In her argument before the Supreme Court, Ginsburg quoted Sarah Grimke, a pioneering abolitionist and fighter for women’s rights, who in 1837 wrote: “I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is that they will take their feet off from our necks....”
The nine Supreme Court justices, who were all older men, previously would have ruled against Ginsburg. But this time, under the pressure of the mass movements, they turned around and struck down the law.
The following year, Ginsburg became the first director of the A.C.L.U.’s Women’s Rights Project. She took several cases before the Supreme Court that also struck down sexual discrimination against men. In one landmark case, Ginsburg represented a man whose wife died in childbirth. When he applied for Social Security benefits in order to stay home and take care of his newborn baby, he was denied because those benefits were reserved for mothers. Eventually, the Supreme Court ruled that the man should get the benefits, a major ruling that opened up the availability of benefits for men and women, both.
In fact, discrimination against women was also the basis of discrimination against men. Discrimination against one part of the working class is an attack against the entire working class.
So, some of the tricks that the government and corporations had used to limit what women and men could get, based on their gender, were successfully challenged and struck down by the courts. But neither the capitalists nor their government officials would tolerate this for long, because it cut into corporate profits and encouraged working people to fight for more.
The Catholic Church and religious fundamentalists served as the shock troops for the capitalist class, mounting a counterattack against all these rights, under the banner of “traditional” or “family” values.
Their first target was the 1973 Supreme Court decision that legalized abortion, Roe v. Wade, a basic right for women to choose how to control their own bodies. Roe v. Wade had not been granted because of the good will of Democrats, as so many Democrats later would claim. Roe v. Wade was decided by a 7 to 2 majority. Of the seven justices who ruled for women, five had been appointed by Republican presidents, who ruled in response to the mass movements of the 1960s and early 1970s.
But by the mid-1970s, social movements were receding, freeing the Democratic and Republican politicians to do the capitalists’ bidding and chop away at those rights. In 1976, the two parties passed the Hyde Amendment that denied government funding for abortions—an attack aimed at the right of working-class women without much money to be able to control their own bodies.
By 1993, when Bill Clinton appointed Ginsburg to the Supreme Court as only the second female justice in the history of the court, the right to an abortion was already under a full-scale attack, as were all the other rights that had been won by the social movements of the 1960s.
Ginsburg also had moved to the right, under the guise of trying to build consensus with conservatives in the legal system. Before her appointment to the Supreme Court, she had even been critical of Roe V. Wade, claiming that it was too sweeping and hard to defend, legally.
As a Supreme Court justice, she sided with conservatives on many issues, including curtailing prisoners’ rights. In 2011, she was part of a unanimous decision, purely for technical reasons, against female workers who sued Walmart for sex discrimination. This past June, she voted in favor of the Trump administration’s efforts to expedite the deportation of undocumented immigrants.
But the Supreme Court had shifted so far to the right, Ginsburg still found herself in the minority on many occasions. In her later years, she became famous to those who followed the law for her stinging and blunt dissents on decisions dealing with discrimination, earning her the reputation as the “Notorious RBG”—thus, forgetting all the times that she sided with conservatives against the rights of minorities and working people.
Today, many fear what Ginsburg’s death and another Trump appointee on the Supreme Court will mean for peoples’ basic rights. But if the history of the Supreme Court proves anything, it is that those rights do not depend upon the make up of the court, but on the balance of class forces, between capitalists and workers.
The capitalists’ ability to exploit and maximize their profits depends on the maintenance of a system of discrimination and racism that divides working people every way possible. So, the capitalists try to make sure that any gains working people make through their struggles are only temporary. To make those gains permanent, workers will have to take the power away from the capitalists and run society in the interests of all humanity.