What I learned from Justice Ruth Bader Ginsburg
Susan Smith Blakely. Photo by Wayne Hill Photography.
Last week, we lost a giant—a giant who stood just a little more than 5 feet tall and who made the world a better place for all of us. She will be remembered for many of the legal theories and opinions she espoused during her 27 years on the U.S. Supreme Court, but more than anything else, she will be remembered for the critical role she played in advancing equality for women.
As women, we are better off because of Ruth Bader Ginsburg, known to so many now as RBG. As men, you are better off because of her, as well. You have wives. You have daughters. You have granddaughters. What is better for your wives and daughters and granddaughters is also better for you.
As a country, we also are better off because of Justice Ginsburg. Time and again, she said her drive to improve conditions for future generations was based on her fervent desire to protect the values of our founders.
She got it. Some of us have forgotten it. Her unfortunate passing reminds us all about it.
I heard Justice Ginsburg speak at a law school years ago, and I was close enough to the stage to feel her presence and her impact. At the time, I was doing research for my first book about women lawyers, and listening to Justice Ginsburg offer career advice for women was nothing short of thrilling for me.
My daughter got even luckier. During her first year of law school, she was chosen in a lottery to be one of a small group of students to participate in an intimate discussion with Ginsburg. My daughter called me immediately afterward and talked about what a tiny, demure woman Ginsburg was, and the word “cute” even crept into the description. I agreed that Justice Ginsburg was cute, but I also emphasized the importance of reading her opinions and dissents to get the measure of the woman. She was tough as nails when she needed to be.
Early years as impactful strategist
Above all else, RBG always impressed me with her strategic view of the world and how she accomplished her goals.
Long before Ginsburg was a household legal figure, she was a staff lawyer at the American Civil Liberties Union. She co-founded the Women’s Rights Project there in the early 1970s, and she was hell-bent on advancing the rights of women. But it was her cleverness rather than her reputation as a legal giant that made the difference for her early on. It was her ability to strategize, to see the big picture and to win the war.
In a string of cases she argued before the Supreme Court, then-attorney Ginsburg demonstrated that strategy. One of those cases—unpredictably, a Social Security benefits matter— exemplified her skills as a strategist best for me.
Simply stated, in Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), a widower became the caretaker for his newborn baby after his wife, the family’s primary breadwinner, died during childbirth. The father, Stephen Wiesenfeld, applied for survivors’ benefits under the Social Security Act for his baby and himself. The child’s benefits were granted, but as a widower, his were denied on the basis that they were reserved for traditional female child care providers after the death of a spouse.
Ginsburg fashioned a winning litigation strategy in the Wiesenfeld case and persuaded her colleagues at the ACLU to go the distance with it. She understood, as they did, that the real objective was to convince the high court that gender discrimination against women was unconstitutional, but she also understood that getting to that result on a straight-line trajectory could have been a bridge too far. She preferred a game plan that would start the justices thinking about unlawful gender discrimination experienced by a man and work their way up to unlawful gender discrimination experienced by a woman.
It was a brilliant approach. Through her soft speech and cunning, she allowed the all-male Supreme Court to put themselves in the shoes of the aggrieved—not just a woman, but also a man—a man with whom they could identify. Once the justices became comfortable identifying gender discrimination as unconstitutional in the case of an aggrieved man, they would find it easier to rule in favor of a woman equally aggrieved. And it worked. The highest court in the land ruled unanimously.
What I learned from RBG
As I became familiar with RBG’s approach to that case, it seemed to me that she knew just how to “play” the Supreme Court justices long before she became one of them. I also imagined she must have been familiar with an old trick when dealing with strong men: Lead them to your truth and make them think it was their idea.
That kind of strategy has served me well over the years. And it came in very handy on one particular occasion. In the early ought years, I participated in a panel discussion at a law school on the unique challenges for women lawyers. A young woman lawyer in the audience asked, “I am having trouble getting my supervising lawyer to take my suggestions seriously. He disregards my ideas and most everything I have to say. Do you have any suggestions about how to handle this?”
I responded by telling her that sometimes when you are on the short end of a power struggle, especially one with gender overtones, you have to be willing to let the other person think your idea is actually his. You need to participate in a dialogue, which advances your own agenda but also recognizes the value of other contributions.
I suggested to her that reaching that kind of compromise of blended attribution is a lot like what happens in a marriage. If you know your husband is not inclined to be in favor of what you plan to propose, you try to make it his idea. And he often does the same thing to you. It has been going on for ages.
I could see heads nodding up and down in agreement throughout the audience. They knew. They had been there before. Most of them presumably had spouses or significant others.
But a fellow panelist did not. Sitting directly to my left, she turned to me and said, “Well, you must be a better wife than I am. I would never let a man take credit for my ideas.” It was delivered with a snarl. It was inappropriate. And for a split second, it caught me off guard. And then I remembered Ginsburg and knew what she would do. I replied very calmly and politely, “Maybe you and I have different objectives. I am not interested in winning every battle. I want to win the war.” And then heads really started nodding up and down.
There is so much that women lawyers do to advance themselves in the profession that requires the kind of strategy that RBG demonstrated throughout her illustrious career and was on display in that law school panel discussion. Women lawyers have to learn to pace themselves, take the long view, prove their value early—so they can trade on it later and gain enough flexibility at the office to make it possible for them to be mothers, as well as lawyers. Women lawyers must be patient, choose just the right words in response to being marginalized and work late into the night in addition to their duties as mothers.
Women lawyers have to learn not to lose their tempers or show too much emotion. They have to dress in particular ways to fend off the wandering eyes of male colleagues—whose bad behavior is apparently women’s fault, as well. They have to be willing to be mistaken for staff and keep smiles on their faces. And when asked to bring the coffee, sometimes they must. And much, much more.
All of this is not easy. And Justice Ginsburg knew it. She knew it long before any of the rest of us. She knew it because she lived it. She has been quoted as saying that she had three strikes against her: She was a woman, she was a mother and she was a Jew. For these reasons, she found it impossible to get hired by a law firm in New York City after graduating from Columbia Law School and being on the law review of not only Columbia Law but Harvard Law School, as well. And that is ultimately what landed her at the ACLU. The men in private practice did not want her.
So rather than get angry, RBG got even. It was true that the powerful male lawyers did not want her, but the powerful male Supreme Court justices listened to her. They listened hard, and they agreed with her because she played them well.
And then she became one of them.
Saying goodbye to a tiny and gentle giant
RBG, rest in peace. Our collective hearts are broken to see you go. You taught us so much.
From your calm and purposeful demeanor in the face of adversity to the steely grit of your exercise routine to combat the effects of disease, to your unprecedented dedication to promote equality and improve the human condition, you have shown women lawyers how to be the best we can be at our craft.
We were lucky to have you in our corner. And we never will forget.
Susan Smith Blakely is a former partner, law career counselor and author of the Best Friends at the Bar book series for female lawyers. Her most recent book is What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice.