By: John M. Fitzgerald
Much-deserved tributes continue to pour in for the late Justice Ruth Bader Ginsburg. It is quickly becoming a cliché to call her an icon, a pioneer in the struggle for equal rights, and one of the most influential judges in recent American history. Even those who vehemently disagreed with her in life now hail her, rightfully, as an American hero.
On Friday night, shortly after learning of her death, I struggled to explain to my 12-year-old daughter exactly why Justice Ginsburg mattered so much. My daughter, like others in her age group, was vaguely aware that Justice Ginsburg was a great judge who fought for the rights of women. But that general notion does not do justice to her full legacy. Those “Notorious RBG” t-shirts were delightful but not very informative.
The most enduring legacy of any judge can be found in the bound volumes of reported decisions (or, in 2020, their digital equivalent). And no single decision speaks more to Justice Ginsburg’s philosophy and legacy than United States v. Virginia, 518 U.S. 515 (1996).
That case can be distilled to its first three sentences, authored by Justice Ginsburg for the majority less than three years after her confirmation to the Supreme Court: “Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.” Id. at 519.*
Perhaps sensing that she faced a historic moment, Justice Ginsburg took the opportunity to explain how the nation’s history led to a dispute over whether the equal protection clause prevented the Commonwealth of Virginia from barring female applicants from VMI. After noting the modern legal standard — namely, that parties “who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action” (id. at 531) — Justice Ginsburg explained:
“Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination. . . .
In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U.S. 71, 73, 92 S.Ct. 251, 252-253, 30 L.Ed.2d 225 . . . . Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”
Id. at 531-32. Justice Ginsburg had, of course, written the successful appellant’s brief in the Reed case.
In the wake of Reed, Justice Ginsburg explained, the Supreme Court “has carefully inspected official action that closes a door or denies opportunity to women (or to men).” Id. at 532. Such action requires an “exceedingly persuasive” justification, and that justification “must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. at 533.
The Commonwealth of Virginia failed to meet that standard. While Virginia claimed that it was important to offer its citizens the option of single-sex higher education, it offered no single-sex higher education opportunities to women. “Virginia describes the current absence of public single-sex higher education for women as ‘an historical anomaly,’” Justice Ginsburg observed, “But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation.” Id. at 538. While Virginia claimed (with no apparent sense of irony) that VMI’s exclusion of women served the goal of “diversity” by offering Virginia residents single-sex higher educational opportunities, Justice Ginsburg could not “extract from that effort any Commonwealth policy evenhandedly to advance diverse educational options.” Id. (emphasis added). The goal of diversity was not served by excluding women from VMI. “However ‘liberally’ this plan serves the Commonwealth’s sons,” Justice Ginsburg concluded, “it makes no provision whatever for her daughters. That is not equal protection.” Id. at 540 (emphasis in original).
To Justice Ginsburg, the case boiled down to this simple truth: “Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.” Id. at 520. Even assuming that “most women would not choose VMI’s adversative method” of education, the question was simply “whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” Id. at 542. Generalizations about the preferences and capabilities of most women were insufficient. After all, “Virginia never asserted that VMI’s method of education suits most men.” Id. at 550. (emphasis in original).
And the “notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other ‘self-fulfilling prophec[ies]’ once routinely used to deny rights or opportunities.” Id. at 543. After all, similar self-fulfilling prophecies had been used in early stages of the country’s history to exclude women from the bar and from attending medical schools. Moreover, women’s “successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded.” Id. at 544-545. (That was quite an understatement, as subsequent experience has shown.)
Finally, Virginia did not cure the equal protection violation by creating a “parallel program” exclusively for women. Even aside from the fact that the “parallel program” was significantly different in curriculum and educational methods from the experience offered to VMI cadets, VMI’s prestige was simply “unequaled.” Id. at 556.
Justice Ginsburg concluded: “A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignores or excluded. VMI’s story continued as our comprehension of ‘We the People’ expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’” Id. at 557-58.
Justice Scalia’s dissent has not aged well. Justice Scalia lamented the Court majority’s “destruction” of VMI. Id. at 603. His prediction was wrong. As Justice Ginsburg understood, the inclusion of women would not ‘destroy’ VMI. It strengthened VMI, which continues to thrive twenty-four years later.
In a heartening postscript, Justice Ginsburg visited VMI in 2017. Shortly after her passing, VMI released the following statement: “During her 2017 visit to VMI, Justice Ruth Bader Ginsburg said she knew that her landmark decision to allow women among the ranks of the Corps of Cadets would make VMI a better school. Nearly 25 years later, VMI’s female alumni are among our nation’s leaders in corporate boardrooms, within our military, and within our communities. VMI is saddened to hear of the passing of Justice Ginsburg. She was a courageous legal scholar whose impact on our Institute and our nation is an inspiration for all.”
*Quotations in this article omit internal citations and footnotes.