For the Defense - Vol. 6, Issue 1 - 19

have gone to a man. " 3 These " indignities " were not
unique to the academy. Newly admitted to the bar,
she was unable to find work despite a stellar academic
career, with law firms as unfriendly to women lawyers
as law schools were to women students.
In the face of this harsh reality, Ruth Bader Ginsburg
launched one of the most successful civil rights
vocations in our nation's history, attacking the very
foundations of discrimination on the basis of sex at a
time when that discrimination was not only rampant, it
was also widely accepted. This effort coalesced during
her time as professor at Rutgers University where she
began teaching in 1963. As she explained on the 250th
anniversary of Rutgers' founding: " In 1969, several
students asked if the school could offer a seminar on
women and the law. I headed to the library; there was
precious little about women's place in a world where
all the doers and actors were male. Rutgers students
sparked my interest and aided in charting the course I
then pursued. Less than three years after starting the
seminar, I was arguing gender discrimination cases
before the Supreme Court. " 4
In one of the first of these cases, Frontiero v.
Richardson,5 Ginsburg pursued a strategy which
mirrored what Thurgood Marshall had successfully
employed in race discrimination cases, attacking from
an indirect perspective which, in this case, involved
the gender inequities women experienced. Sharron
Frontiero was an Air Force officer who sought certain
benefits for her husband. Had she been a man, this
would not have been an issue since officer's wives were
covered. Rather than argue a case where a woman
had suffered direct discrimination, Ginsburg presented
the Supreme Court an interesting dilemma: sex
discrimination not only affected women, but it could
also be harmful toward men.
The Court agreed.
But while Frontiero represented a major victory for
women's rights, it fell short of the goal Ginsburg sought,
namely application of the same analytical scrutiny
relevant to other forms of insidious discrimination.
Ginsburg secured the votes of four justices who, for
the first time, agreed that sex discrimination, " like
classifications based upon race, alienage, or national
origin, " should be subject to " strict judicial scrutiny "
under the Due Process Clause of the Fifth Amendment,
but the fifth vote remained elusive.6 In fact, in a later
case, Craig v. Boren,7 where Ginsburg participated
as ACLU amicus counsel, the Court settled on an
" intermediate " standard by which sex discrimination
claims were to be judged under the Equal Protection
Clause, a standard which remains largely intact (and
only " tweaked " to a more exacting level twenty years
later via Justice Ginsburg's majority opinion in United
States v. Virginia).8 Although not ideal, this was,
however, a standard agreed upon over the dissent

of Justice Rehnquist, who wrote that only the lowest
(i.e., " rational basis " ) test should be applied to sex
discrimination claims.
In the drama of civil rights advocacy in the 1970's,
it was clear that Ruth Bader Ginsburg had established
herself as " the leading Supreme Court litigator for
gender equality in th[at] crucial decade. " 9 Her success
got the attention of President Jimmy Carter, who
nominated Ginsburg to the U.S. Court of Appeals for
the District of Columbia Circuit, taking the professor
out of the classroom and placing the advocate in a new
seat in the courtroom. It was, indeed, time for her next
act, and one of such distinction that another president,
Bill Clinton, a little more than a decade later said " he
knew within 10 minutes of interviewing then-Judge
Ginsburg that he would offer her " the nomination to
fill a vacancy on the Supreme Court.10
Shortly after her confirmation, I met Justice
Ginsburg. It was at a Supreme Court reception
for Justice William Brennan when this new justice
approached me to say that we had mutual friends,
a couple whom she knew as a young lawyer in New
York City. Her warmth and welcome and friendship
to me continued until her death, and immeasurably
enriched both my professional and personal life.
Wishing I could have spent more time in her presence,
there were nonetheless letters, emails, and countless
visits, including the many times where I sponsored
lawyers being admitted to the Supreme Court bar
followed by a reception with the Justice.
Some of the richest times spent with Justice Ginsburg
involved students from a course I sometimes teach at
King's College. As part of the course, the students
would examine a pending case at the Supreme Court
followed by our visiting the Court when the case
was orally argued. Justice Ginsburg would then host
us in her chambers and much to the surprise of the
students, would quiz them on the case, challenge
them on various aspects, and sometimes offer (with
notable candor) her view of the advocates and case
they presented.
Although I had served an appointed term as trial
judge, I felt a noticeable change in my relationship
with Justice Ginsburg when I was appointed to
Commonwealth Court. I received a lovely note from
her which congratulated me and said that she hoped
my " time as an appellate judge [was] as rich and
rewarding " as hers had been. She then offered further
advice, something that she has mentioned publicly
many times, and which was rooted in something her
mother-in-law had told her: She said, " Appellate
judging, as in marriage, it helps if you're a little deaf! "
I last visited Justice Ginsburg, just a few weeks
before the COVID-19 lockdown was imposed, when
I joined the mutual friends who were the reason,
I met her in the first place. Among the many things

Vol. 6, Issue 1 l For The Defense

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For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1
