October 6, 2020

RBG's Human Rights Legacy

Risa E. Kaufman Director of Human Rights at the Overbrook Foundation
Martha F. Davis University Distinguished Professor at Northeastern University Law School of Law

As Justice Ginsburg blazed the trail for equal citizenship rights, she drew inspiration and analysis from comparative and human rights-based approaches to equality. This is a critical aspect of her legacy.

In 1946, at the age of 13, Justice Ginsburg appreciated the potential held by the creation of the United Nations just one year earlier.  In an editorial for her school newspaper, Highway Herald, eighth grader Ruth Bader lauded the UN Charter and its underlying principles, placing it in the pantheon of great documents including the Ten Commandments, the Magna Carta, the English Bill of Rights, and the U.S. Declaration of Independence.

As an aspiring scholar in 1961, she joined the Columbia Law School Project on International Procedure, headed by Professor Hans Smit. Ginsburg had just completed a two-year clerkship with Federal District Court judge Edmund Palmieri, so was certainly steeped in American rules of civil procedure. However, her assignment with Smits’ project would be to develop the study of Swedish civil procedure. She was paired with a Swedish judge, Anders Bruzelius, to complete the book-length work.

After spending some months learning Swedish, Ginsburg traveled to Lund University in southern Sweden to meet with her co-author, accompanied by her young daughter Jane. The book that Ginsburg and Bruzelius ultimately produced in 1965 was well-received, with at least one reviewer expressing surprise that a book on such a seemingly arcane topic was actually interesting.

The more momentous legacy of this trip, however, was its influence on Justice Ginsburg’s perspectives on both equality and comparative law. At the time of Justice Ginsburg’s visit, women made up 25 percent of Swedish law students, and the family-friendly social policies for which Sweden is known were rapidly expanding. Justice Ginsburg visited a Swedish court where the presiding judge was eight months pregnant, unthinkable in the United States. Looking back decades later, Justice Ginsburg credited her comparative law experience with “influencing my perspective on legal issues ever after.”

Her appreciation for comparative law was soon evident in her work. As a litigator, she famously cited to cases from the West German Constitutional Court in Reed v. Reed, the first Supreme Court case that she briefed. As a scholar, she looked to comprehensive income protections and pregnancy and childbirth benefits contained in International Labor Conventions as models for eradicating gender-based discrimination.

As a jurist, Justice Ginsburg explicitly embraced a human rights-based approach to equality. Upholding the University of Michigan Law School’s use of affirmative action in its admissions program in her concurrence in Grutter v. Bollinger, Justice Ginsburg cited to both the international Convention on the Elimination of All Forms of Racial Discrimination (CERD), which the U.S. ratified in 1994, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the U.S. has signed but not yet ratified. She noted that affirmative action measures are consistent with governments’ obligations under international human rights to enact temporary positive measures to guarantee the equal enjoyment of rights.

Justice Ginsburg’s embrace of international human rights in Grutter in 2003 was not a one-off. Rather, it reflected her deep thinking on the topic. In her 1999 Cardozo Lecture to the New York City Bar Association, Justice Ginsburg states clearly that the UDHR and human rights treaties influenced her thinking about constitutional guarantees of equality, including government’s affirmative obligations. She notes the ways in which affirmative action, in particular, is consistent with the UDHR’s embrace of civil and political rights alongside economic and social rights protections, and the UDHR’s holistic approach to equality. Affirmative action, she explains, is both “in harmony with” and “may draw force” from human rights principles, “in particular, from the prescriptions on equality coupled with provisions on economic and social well-being.”

Indeed, Justice Ginsburg spoke often and publicly of her appreciation for and approach to comparative law and human rights. In a 2004 speech at Columbia Law School, and again in a 2006 speech at the University of Pretoria, she discusses the ways in which the Supreme Court’s opinion in Brown v. Board of Education was influenced by the cruel hypocrisy of the United States’ engagement in World War II to fight against Nazi Germany while racial apartheid thrived within the U.S. She noted that Brown “both reflected and propelled the development of human rights protections internationally.” Justice Ginsburg states: “Brown and its forerunners, along with the movement for international human rights that came later, powerfully influenced the women’s rights litigation in which I was engaged in the 1970s.”

In a 2010 speech at the International Academy of Comparative Law, she again discusses how comparative studies “powerfully influenced” her work as a lawyer, a law teacher, and a judge, and she notes the value, firmly rooted in the American tradition, of courts consulting foreign and international legal sources when engaging in constitutional review to ensure the protection of rights.

In her Cardozo Lecture, Ginsburg states, in no uncertain terms, the relevance of comparative and international law:

In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.

She later concurred with Israel’s Chief Justice Aharon Barak’s assessment that comparative law holds particular value in cases involving hate speech, privacy, abortion, the death penalty, and terrorism.

The human rights influence also appears embedded – if more subtly - in her writings and jurisprudence. For example, in an early article delving into gender and the constitution, she discusses the importance of positive government measures, including affirmative action and government support for child rearing, in realizing gender equality. In M.L.B. v. S.L.J., she engaged in an intersectional analysis to elide the traditional distinctions between due process and equal protection and recognize the impact of poverty on the realization of fundamental rights, holding that a state may not condition the opportunity to appeal termination of parental rights on payment for the trial court record. In United States v. Virginia, she did not merely rule that VMI  must admit women, but, seeking to make equality norms responsive to people’s lived realities, noted that the military college would need to make other changes as well, such as adopting policies to respect cadets’ privacy.

Justice Ginsburg was a champion for gender equality and equal citizenship rights, as reflected in opinions (both controlling and dissenting) addressing gender-based discrimination, reproductive rights, voting rights, and corporate campaign spending. She was not perfect. She had significant blind spots.

But her understanding of equality as grounded in human rights principles should be an enduring aspect of her legacy. Building on such a legacy would lead to more explicit recognition under constitutional law of the ways in which discrimination based on gender, race, and poverty intersect. It would remedy the current failure of constitutional doctrine to extend heightened scrutiny to claims of poverty-based discrimination, and it would extend protection under the 14th amendment to disparate impact claims of race and gender discrimination. It would recognize, too, governments’ affirmative obligations to ensure equality.

For example, rigorous application of human rights norms in the U.S. context would provide a framework for courts to recognize governments’ duty to ensure non-discriminatory access to quality comprehensive reproductive health care in order to secure women’s equality, a framework for protecting reproductive rights that Justice Ginsburg favored. It would likewise more fully elucidate how restrictions on access to abortion care, such as requiring people to travel long distances to a clinic and either make a return trip or stay overnight, have direct and particular impact on access to abortion care for people in marginalized communities, including people living in poverty, people of color, immigrants, and people with disabilities. Indeed, Justice Ginsburg’s concurrence in Whole Woman’s Health forcefully acknowledged the barriers that targeted restrictions on abortion providers place on people’s ability to access abortion care.

As a litigator and as a jurist, Justice Ginsburg was indeed a trailblazer. Her approach was to work methodically, case-by-case, within existing doctrine to make it more inclusive, with an ultimate result that was transformative. Building on her human rights legacy would likewise require deliberation and patience. What a powerful legacy that would be.

Civil rights, Equality and Liberty