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At 82 years old and five-foot-one, Associate Justice Ruth Bader Ginsburg listened carefully from behind the bench as lawyers made their arguments in a historic case. The courtroom was discussing hypotheticals, and the justice had a point to make.
The year was 2015, and the Supreme Court was reviewing a challenge to state laws banning same-sex marriage. One reason for such bans, lawyers had argued, was the state’s interest in procreation, in reserving legal marriage for those who can make babies together. The Court was discussing what this could mean for opposite-sex couples who didn’t want children. Were the states planning on asking every couple about their plans to reproduce?
“Suppose a couple, a 70-year-old couple comes in and they want to get married. You don’t have to ask them any questions. You know they are not going to have any children,” Ginsburg proposed, prodding the states’ double standard. The courtroom laughed.
Throughout her career, Ginsburg’s sharp lines of reasoning advanced rights for the LGBTQ community, women, African Americans, immigrants, and inmates on death row. Her death last month from metastatic pancreatic cancer marked the loss of a prominent defender for those traditionally overlooked by the law.
The Republican-led Senate is expected to confirm President Donald Trump’s nominee, Amy Coney Barrett, a conservative judge from the Seventh Circuit Court of Appeals, to fill Ginsburg’s seat on October 26. Many are worried that Barrett will shift the Court further away from Ginsburg’s vision and overturn many of the rulings that defined her career. For women like Kelley Henry, an attorney who has represented death-row prisoners for more than 20 years, their work to uphold Ginsburg’s legacy feels more urgent than ever.
“[Ginsburg] spoke truth to power her entire career and made it possible for people like me to have the opportunity to do what I do,” Henry says. “I think the Constitution is the greatest document ever written, not because of the words on the paper, but because of the ideals that are behind it. I feel like every day that I go to work, I’m upholding those ideals.” (Here’s why filling a Supreme Court vacancy in an election year is so complicated.)
Equal protection for ‘any person’
When Ginsburg entered law school in 1956, the U.S. had thousands of laws on the books that treated women differently than men. Women could be fired for becoming pregnant, could not secure a mortgage without a man to co-sign, or be denied admission to a state-funded school based on their gender. Very few women practiced law. Ginsburg was one of only nine women in her class at Harvard Law School, and even though she later graduated at the top of her class at Columbia Law, where she’d transferred to join her husband in New York, Ginsburg said not a single law firm in the city would hire her.
Instead, Ginsburg became a professor at Rutgers Law School in 1963 and started working on sex discrimination cases for the American Civil Liberties Union. In 1971, she began working on her first Supreme Court case—and fundamentally changed women’s constitutional rights.
When Sally Reed’s 16-year-old son died by suicide in 1967, Reed petitioned to be put in charge of her son’s estate instead of her ex-husband. The court denied Reed’s request, citing an 1864 statute that dictated the estate go to the male party by default. In her Supreme Court brief defending Reed, Ginsburg proposed that the 14th Amendment’s Equal Protection Clause guaranteed equal protection under the law to “any person,” not just men.
All nine Justices voted in Reed’s favor and, more importantly, they didn’t reject Ginsburg’s argument that discrimination based on gender was unconstitutional. As a result, thousands of laws across the U.S. were reassessed for gender discrimination.
The case opened the door for equal protection under the law, but the work continues today. In 2014 the Supreme Court ruled that pregnant workers were entitled to ask their employers for workplace modifications to accommodate their pregnancy. But the decision came with a caveat: If pregnant workers pursue their right to accommodations in court, such as requesting not to lift anything heavy, they must prove that their employer provided accommodations to other employees who requested similar workplace modifications.
Dina Bakst, co-founder and co-president of A Better Balance, an organization that advocates for the rights of working families, believes that this burden of proof is a fundamental deterrent to justice and equality—especially for low-income women and women of color.
“We run a free legal clinic, and we see how low-income women are forced to choose between their job and a healthy pregnancy… They can’t necessarily wait to prove discrimination in court,” she says.
When workers do seek accommodations through court, A Better Balance found that two-thirds lost their case. Bakst hopes Congress will strengthen the protections broadly defended by the Supreme Court, and testified at a congressional hearing in 2019 as to why further legislation is needed. “This standard is tone deaf to the realities of the American workplace, where pregnant workers typically lack access to their coworkers’ workplace accommodation requests, personnel files, and simply lack the luxury of time and certainly the resources to sort out these questions,” she said.
Last month the U.S. House of Representatives passed the Pregnant Workers Fairness Act, which guarantees pregnant workers the explicit right to ask for reasonable, temporary accommodations without fear of being fired. Thirty states currently have these protections in place. The bill is now being reviewed by the Senate’s Committee on Health, Education, Labor, and Pensions.
Correcting the Court’s mistakes
In 2013, Ginsburg believed the Supreme Court was making a mistake.
The justices were tasked with reviewing a section of the 1965 Voting Rights Act requiring certain states and cities with a history of voter discrimination to seek federal approval before changing their voting laws. Shelby County, Alabama, challenged the constitutionality of the requirement since the jurisdictions were selected based on discriminatory acts committed 40 years before.
Five of the nine justices agreed with Shelby County and charged Congress with updating the criteria used to select jurisdictions subject to review. Within 24 hours of the ruling, Texas announced it would start enforcing strict photo ID laws. Alabama and Mississippi followed soon after with new voter ID laws that had previously been struck down by the federal review process.
Ginsburg wrote a cutting dissent: “Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Since the ruling, 23 states have enacted “newly restrictive statewide voter laws,” according to a 2018 report by the Federal Commission on Civil Rights. Voters in these states now contend with strict voter ID laws, limited early voting days, voter roll purges, and fewer polling places. (This civil rights leader feared for his life after trying to cast a vote. It convinced him to join the movement.)
“She understood very clearly exactly what was going to happen after that decision came down,” says Kat Calvin, a lawyer and the founder of Spread the Vote.
Calvin, who owned a calendar with the Supreme Court justices’ birthdays while she was in law school, was horrified by the Shelby decision. After witnessing voter suppression in the 2016 election, she decided to start Spread the Vote, an organization that helps some 21 million eligible voters get the IDs they need to vote.
For most of Calvin’s clients, acquiring an ID often requires weeks of guidance from Spread the Vote’s volunteers and, on average, $40 in fees. The process is convoluted because her clients are often missing some of the key documents required at the DMV, Calvin says. For example, 57 percent of Spread the Vote’s clients don’t have birth certificates, which often require a photo ID to replace.
And it’s not just about voting. “For our clients, it is about survival,” Calvin says. Food banks, shelters, and even COVID-19 testing sites often require IDs.
This year Spread the Vote has pushed local legislators for new voter ID laws, and Calvin remains optimistic about the future of the Supreme Court. However, she warns that voters should stay vigilant. From upholding segregation, eugenic sterilizations, and Japanese internment camps, the Supreme Court has made indefensible judgements before.
“I think that being Black in America, we have seen the courts go back and forth,” she says. “There’s Dred Scott and Brown v. Board, right? They make horrible decisions and great decisions, and they’re always shifting.”
On the basis of sex—and gender identity
Earlier this year, the Supreme Court upheld another landmark case for the LGBTQ community when they ruled that employers could not discriminate against employees for being either gay or transgender.
The justices were asked to consider whether the clause preventing discrimination based on sex in the Civil Rights Act of 1964 also extended to discrimination based on sexual orientation. The conservative justices were skeptical, arguing that Congress did not intend to protect sexual orientation when they passed the law. Ginsburg pointed out that the Court had already extended the Civil Rights Act to protect against sexual harassment—something the legislators hadn’t considered at the time either.
“For trans people, obviously this is huge,” says Bamby Salcedo, the president and CEO of the TransLatin@ Coalition, which provides resources to transgender, gender non-conforming, and intersex people in 10 states. “This sets precedents for us to understand and know the law and to fight for what is right.”
One week after the ruling, Salcedo and her organization joined a lawsuit to stop the Department of Health and Human Services from removing language protecting transgender people seeking medical service through the Affordable Care Act. The HHS argued that sex-based discrimination should not include gender identity.
“Accessibility to health care services is one of the things that our community specifically continues to have challenges with,” Salcedo says.
Like many transgender people, Salcedo, a long-time HIV survivor, has been denied medical care. According to a 2017 national survey by the Center for American Progress, 29 percent of transgender people said that they’ve been refused medical care by a health care provider because of their gender identity. When they receive care, 23 percent reported being intentionally misgendered or called by the wrong name. Doctors also struggle to account for gender identity, often prescribing medicine or recommending scans based on the wrong sex.
The TransLati@ Coalition provides, among other resources, food, hygiene kits, anti-violence services, transitional housing, and workforce development programs to those in need. The coalition’s efforts are informed, in part, by Salcedo’s journey. As an undocumented immigrant, she spent 14 years in and out of jail while battling drug addiction and using sex work to support herself.
“Any and everything that you can probably think of, I personally have survived it, but I also have seen how many members of my community continue to struggle,” she says. “I had the privilege to reform my life and overturn my horrible experiences into opportunities.”
Salcedo worries that the COVID-19 pandemic will prevent transgender people from making progress. “It’s important that we follow the legacy of Justice Ginsburg, because it really is about understanding the needs of people and doing what needs to be done to make sure that people continue to move forward—particularly those who are the most marginalized in our society,” she says.
Reaching the American Dream
Ginsburg’s father was a Jewish immigrant from Russia who came to the U.S. when he was 13 years old. Her mother was born to Austrian Jewish immigrants only four months after they arrived on Ellis Island. The justice believed that her success was a testament to the American dream, and while on the bench she consistently tried to protect the rights of immigrants.
In June, Ginsburg joined the majority in a 5-4 ruling to preserve the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era initiative that protects young undocumented people from being deported. There are more than 643,000 DACA recipients, and between them they are parents to some 200,000 U.S.-born children. The Supreme Court ruling does not prevent the government from trying to dissolve DACA again.
Dulce Matuz, a co-founder of the Arizona Dream Act Coalition, knows what it’s like to have her life dictated by a changing legal system. She came to the U.S. from Mexico in 2000 on a work permit and has fought for immigration rights every step of the way.
On the same day in 2012 that President Obama announced the DACA program in an executive order, Arizona governor Jan Brewer issued her own order barring DACA recipients from receiving a driver’s license. That meant DACA recipients could risk deportation just by going to work or to the grocery store.
“Every time that you drive without a license, you can have an encounter with police,” Matuz says. “And if you don’t know your rights, or if you answer in a certain way… that traffic stop can mean deportation.” This was especially the case when Arizona law allowed police to ask for a person’s immigration status based on their appearance or the music they listened to, she says.
Matuz’s coalition filed a lawsuit against the ID restrictions and after two years in court, they won. “I knew that it was not just a legal battle, but a moral fight,” she explains. In 2018, the Supreme Court refused to hear an appeal by the state, solidifying the coalition’s win. Matuz believes their work prevented the same executive order from being enacted in other states.
Other victories were shorter lived. The coalition helped secure in-state college tuition for DACA recipients, but the law was repealed by the state’s attorney general and some students saw their tuition more than triple. Today, Matuz is focused on helping people renew their DACA applications and register eligible voters.
“I had the privilege to be able to become a citizen in 2016, and the first thing I did when I walked out of the naturalization ceremony was to register to vote,” she says. “We’re going to turn out for this election and we’re going to hold elected officials accountable to do what is best for the immigrant community.”
Queen Ginsburg v. capital punishment
“If I were queen, there would be no death penalty,” Ginsburg said during a 2017 talk. She believed the sentencing process is too prone to errors and too dependent on the skill of the lawyer, which is often dictated by the defendant’s income.
Despite her objections, Ginsburg did not recuse herself from death penalty cases in order to continue shaping the laws. “The death penalty for now is the law, and I could say, ‘Well, I won’t participate in those cases,’ but then I can’t be an influence. Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict,” she told Reuters in 2013.
As a justice, Ginsburg voted to end the death penalty for people with disabilities and minors. She also ruled against the use of death as a punishment for crimes in which no one is killed. In the last five years, Ginsburg voted for every stay of execution issued by the Supreme Court, according to the Death Penalty Information Center.
The Supreme Court has been on defense lawyer Kelley Henry’s mind as the execution date approaches for one of her clients, Pervis Payne. He has been on death row in Tennessee for 32 years for the murder of a young woman and her daughter.
Not only does Henry believe that Payne is innocent—an uphill battle to prove, she admits—but she and an expert witness also believe that he is intellectually disabled. Given the Supreme Court ruling, this status could spare Payne’s life, but the window to have an expert witness testify has closed in his case. The Tennessee Black Caucus of State Legislators has announced its intention to create legislative fix, but it wouldn’t go into effect until after Payne’s execution date.
With over 20 years’ experience defending those on death row, Henry supervises the Capital Habeas Unit of the Federal Public Defender’s office in Nashville, which oversees cases for 32 clients awaiting capital punishment. Henry is the counsel of record in 10 of these cases.
“I’ve been doing this for a really long time,” she says. “I’ve met clients as they were released from prison as a result of my work, and I’ve been the last person my client saw before they were electrocuted.” As long as the U.S. continues to execute citizens, she plans to continue working.
“There are no rich people on death row. And the disproportionate number of African Americans who are sentenced to death, particularly for murders of white people, is astonishing,” Henry says. “Anything that I could do to shed light on that unfairness, then I feel like I’m obligated to do it.”
The notorious work continues
When asked what advice she’d give the next generation of women, Ginsburg responded, “Fight for the things that you care about, but do it in a way that will lead others to join you.”
As a justice, her opinions pushed several groundbreaking 5-4 decisions over the line. When she disagreed with the majority, Ginsburg was known to work through the night writing her dissents—always with the hope they would inspire future judges to reconsider. Despite the Court’s rightward tilt, Ginsburg’s work will continue in a new generation of women who are supporting—and sometimes supplementing—the Supreme Court’s judgement.