Monday, September 21, 2020

Justice Ruth Bader Ginsburg: The Global and the Personal

Justice Ruth Bader Ginsburg knew the dangers of a parochial approach to the law. When necessary, she was not afraid to rely on international and comparative law, both as a justice and as a lawyer, to make a case for equality under the law. She drew upon comparative law for her first brief filed in the Supreme Court, Reed v. Reed, in 1970—the first case to prohibit sex-based classification. For the brief, she extensively referenced reports to the UN on the legal status of women in Sweden as well as the UN Charter. In Grutter v. Bollinger, which challenged the University of Michigan Law School's affirmative action program, she compared the program to the UN Convention on the Elimination of Discrimination against Women' s Temporary Special Measures in Article 4.    

In a 2010 address to American University, she argued that "[t]he U.S. judicial system will be poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own." Learning from others was essential to her, even when it meant breaking down the narrow orthodoxy of nationalist views. In discussing constitution reform in Egypt soon after the Arab Revolution in 2012, she urged the Egyptian lawmakers to look beyond the U.S. Constitution, referencing the South African Constitution. "... if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa," "That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. "

We are deeply in debt to Justice Ginsburg's impact in changing gender equality laws in the United States. Less is known about her influence in small corners of the world, in places so small, that in Eleanor Roosevelt's words, "they cannot be seen on any maps of the world."   

Rangita de Silva de Alwis, writing above, also shares with us a letter she wrote to the Justice inviting her to Penn Law in 2018 to celebrate her 25th anniversary on the Supreme Court. A letter which the Justice told her reminded her of the important role of fathers as nurturers—a view that shaped her incomparable jurisprudence and legacy. Speaking to Joan Williams, Justice Ginsburg once said: "This is my dream for society....Fathers loving and caring for and helping to raise their kids."      

Dear Justice Ginsburg: 

I am attaching a very personal letter to the formal invitation. I know that my friend Andreas will make sure you get both.  

When my father was visiting at Columbia law School in 1977, he asked his much-admired friend Oscar Schachter for the honor of meeting you. When Prof. Schachter asked him why, he said simply, "I have a little daughter." My father brought back to Sri Lanka for me the photo with the three of you.  Later in the 1980's he bought Tribe's Constitutional Law treatise, and underlined Frontiero v. Richardson for me, reading excerpts aloud to me on warm nights. When I was a law student in Sri Lanka, I insisted that my Dean Sharya De Soysa include the case along with Marbury v. Madison in our comparative constitutional law lecture. After all, my dean was a Harvard woman too. 

In very auspicious ways, that winter of 1994 in Joan Williams' class on Feminist Jurisprudence, the first case we read was Harris v. Forklift -- your first case on the Supreme Court and fittingly on sexual harassment in the workplace. I still remember the excitement in our seminar room as we discussed how you would make a difference on the Supreme Court and in the world.  

I went on to highlight VMI's heightened review standard as well as your early intermediate scrutiny test in Craig v. Boren on sex-based classification in my courses on Women and Comparative Law, which I taught with Judge Nancy Gertner in China. Your work continues to be a leitmotif throughout my life.   

 Twenty-five years after coming to this country and twenty-five years after Harris v. Forklift, I am now at Penn Law. I know that having you with us will make the same difference to our brilliant students that you made in my life. 

Thank you, 


Rangita de Silva de Alwis
University of Pennsylvania Carey Law School
Nonresident Leader in Practice at Harvard Kennedy School's Women and Public Policy Program (2019-2021)

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