In 1976, an Oklahoma lawyer challenged a statute outlawing the sale of certain types of beer below 3.2 percent alcohol content to men below the age of 21. The same state law allowed women to purchase alcohol below 3.2 percent at the age of 18. It was the rare case of legal discrimination against men.
This suit proved itself the perfect opportunity for one of the top lawyers at the American Civil Liberties Union and director of the Women’s Rights Project to advance a case on sex discrimination to the Supreme Court. This lawyer was future Associate Justice of the Supreme Court Ruth Bader Ginsburg. Rather than pick a textbook case of discrimination against women (there was a mountain of options in 1976 America), Ginsburg pursued this case because it had a male defendant. Even while arguing for, at the time, incredibly radical ideas of legal protections against discrimination for women, Ginsburg focused on a pragmatic approach: making the case as sympathetic to the all-male court as possible.
In the months leading up the case’s Supreme Court appearence, the incompetent male lawyer who filed the case had refused the far more credentialed Ginsburg the chance to argue in court. Knowing that he wouldn’t back down, Ginsburg got an entirely different case in front of the Court. She made sure oral arguments happened immediately before the alcohol case and spent their entirety talking about the next case, finding a backdoor method to prosecute the case herself. Her arguments convinced the Court to a 7-2 decision on her side. This case, Craig v. Boren, is considered one of the first and most important pieces of caselaw preventing sex discrimination.
This is just one example in a whole career of brilliance, insight and, above all, pragmatism. Ginsburg’s hard fought successes for the rights of women led her to the respect and pop culture phenom we know now. Her astounding ability to become a revered figure of the American left without being seen as anathema to conservatives was a result of her uncanny skill in finding compromise and a middle path.
Ginsburg had a well-documented and close friendship with Antonin Scalia, one of the most consevative justices the Court had ever seen. Ginsburg was willing to go to the opera with a man who ideologically represented everything she fought against, and she saw his opposition and friendship as something that made her stronger. This ability to find middle ground was not just an admirable personality trait, it was the only way she could ever enact change in the Court.
And enact change she did. Ginsburg was a decisive liberal vote in many cases, including Obergefell v. Hodges, the case that made same-sex marriage legal in all 50 states. Ginsburg was also the writer of the majority opinion in a number of important cases, including United States vs. Virginia, a case preventing sex discrimination in higher education, and Olmstead vs. Virgina, which protected people with mental disabilities from institutionalization and discrimination.
Ginsburg was also known for her scathing dissenting opinions. The opinion that brought her fame for being the dissenter of the Court, fame that grew into the Notorious RBG personality we know today, was her opinion on Bush v Gore, the case which handed George Bush the contested 2000 election. For the over a hundred years of dissenting briefs prior, it was decorum to end the opinion with “I respectfully dissent.” Ginsburg, however, ended her opinion, a blistering argument that the Court was stripping Americans of a basic right to transparent elections, with two caustic words: “I dissent.”
Ginsburg’s successes for individual liberties were won at the hands of her amazing ability to compromise. Ginsburg spent her career on the razor’s edge between radical and moderate, conciliatory and brutal, combative and prudent. Her pragmatic effectiveness will surely cause her to be remembered as one of the most influential, wise and fair jurists in American history.
graham10@stolaf.edu
Lila Graham ’22 is from Warrenville, I.L. Her major is Philosophy.
