Free to Be Ruth Bader Ginsburg – The Story of Women and Law by Teri Kanefield – Law School Policy Review & Kautilya Society

Kanav Sahgal

Ruth Bader Ginsberg has been described by the American Civil Liberties Union as a “pioneer for women’s rights”- and rightly so. Born in 1933 to a Jewish family of immigrants facing persecution in the erstwhile Russian empire, Ruth Bader Ginsberg experienced sex discrimination throughout her life. And while her sex may have put her on an unequal footing in her career compared to men, it also provided her with a unique vantage point to see the world- one that ultimately paved the way for progressive legal change for countless women and men in America. In this book review, Kanav analyzes Teri Kanefield’s telling of Ruth Bader Ginsberg’s life story by highlighting its relevance today, as well as suggesting a few topics for further examination.

Award-winning author Teri Kanefield, who holds both a law and a master’s degree in English, demonstrates her finesse as a legal storyteller exceedingly well in her biography of Ruth Bader Ginsberg – a Former Associate Justice of the Supreme Court of the United States. In her 30- year publishing career, Kanefield has authored more than a dozen books, over 50 articles, essays and stories for the media, and filed hundreds of appellate briefs. Her award-winning biographies include the six-part Making of America series that covers the lives of Alexander Hamilton, Andrew Jackson, Abraham Lincoln, Susan B. Anthony, Franklin D. Roosevelt, and Thurgood Marshall.

This article will examine Kanefield’s biography of Ginsberg’s life from the time when she was known as little ‘Kiki’ to when she ascended to bench of the highest court in the United States as ‘Associate Justice Ginsberg’. In addition, the article will examine two areas of Ginsberg’s life that Kanefield ought to have addressed to make the biography more wholesome and better nuanced.

Divided into 28 succinct and engaging chapters, each page takes the reader through Ruth Bader Ginsberg’s slow yet steady climb as a champion for gender equality. In addition to writing about Ginsberg’s career, Kanefield also calls readers’ attention to Ginsberg’s personal life – her loving relationship with Martin David Ginsberg (Marty) whom she met at Cornell University and eventually married to share some 56 years of continuous love and support with, and how he, despite being one of the finest tax lawyers in New York, admitted later on that the most important thing to him ever was helping his wife achieve her potential. He loved Ruth dearly until the very end and tragically passed away of cancer aged 78, four days after their fifty-sixth wedding anniversary. Also interwoven in the biography is Ginsberg’s relationship with her children and grandchildren whom she and Marty also adored.

The biography also takes the reader into the intimate life of the Bader family- from the early days right up to when Justice Ginsberg was nominated to the Supreme Court. Readers may or may not be surprised to know that Ruth Bader Ginsberg’s upbringing was humble and difficult. Her father, a Jew, immigrated to the United States from Odesa (now Ukraine, then a part of the Russian Empire) to avoid persecution and brought his entire family along with him to New York’s Lower East Side – a crowded area known as a “notorious slum” – thronged with Jewish immigrants. Born in 1933, Ruth (affectionately called ‘Kiki’) was smart, driven, and committed to her grades from a very early age. Her tenacity helped her make it all the way to Cornell University and later, Harvard Law School.

In addition to sharing difficult intimate details about Ruth’s childhood (such as the financial struggles of her father, and the anti-Semitism that she and the rest of her family members endured in the early days of her life), Kanefield also sheds light on the ‘quiet intensity’ that Ruth displayed at school and later, at Harvard Law School. But none of this would have been possible without the support of her family, Marty, and the laboured efforts of the women who preceded Ruth. Kanefield generously sprinkles these women’s inspiring stories throughout the book to provide greater context to the women’s movement – one that Ruth would eventually be inextricably intertwined with. From Myra Bradwell’s rebellious endeavor to apply for a license to practice law in the 1850s, to Belva Ann Bennett Lockwood’s powerful story of becoming the first woman to argue before the Supreme Court in 1906- each of these stories (and more) is intentionally featured in the biography to demonstrate that Ruth Bader Ginsberg was standing on the shoulders of giants. In spite of the progress made by these women and others, Ruth continued to experience pervasive sex-discrimination throughout her life- at Law school and even post that- first as a law clerk, then as a law professor at Rutgers University, and during her long association with the American Civil Liberties Union (ACLU).

Though mildly hagiographic, Kanefield does not shy away from foregrounding two significant moments in Ginsberg’s career that courted controversy- the first was her public criticism of Roe v Wade (1973) – a landmark Supreme Court decision that granted women the constitutional right to an abortion. This case, Ginsberg believed, was improperly decided and should have been grounded in the equal protection clause of the Fourteenth Amendment rather than solely resting on the right to privacy. Ginsberg also preferred narrow judgments to wider rulings, which she felt could cause a backlash, and predictably, it did. The ripples that Roe created among enraged conservatives had far-reaching ramifications and eventually reached its apogee on June 24, 2022, when the Supreme Court overturned Roe after close to 50 years in its landmark ruling- Dobbs v Jackson Women’s Health Organization. Unsurprisingly, the conservative majority that authored the Court’s opinion also included Ginsberg’s critique in it. The second criticism that Ginsberg received during her career was from left-leaning feminists regarding her litigation strategy. They accused Ginsberg of emphasizing “formal equality” too much rather than calling for more substantive, structural changes in the law. One scholar even went on to say that Ginsberg’s work was “consigned to the dustbin of formal equality.”

When serving as an Associate Justice of the United States Supreme Court, many remember her as a liberal icon known for her biting dissents. But Kanefield reminds us that this caricature is not completely accurate.

While on the DC Circuit Court of Appeals, Ginsberg’s narrow, procedure-focused rulings made her out to be quite moderate, oftentimes siding with conservatives just as much with liberals. Of significance, was a case in which she upheld a Supreme Court judgment from 1976 which stated that banned same-sex conduct and further stipulated that gay people did not possess the right to privacy (Doe v. Commonwealth’s Attorney of Richmond, (1976)

How then, did Ginsburg become an icon for gay people? This is an area which Kanefield should have explored the way she did for abortion rights in Chapter 14.

Kanefield explains that things changed during George W. Bush’s second term as president when he nominated two new justices to the apex court- John Glover Roberts Jr. who replaced the then recently deceased William Rehnquist; and Samuel Anthony Alito Jr who replaced the then-retiring Sandra Day O’Connor.

The Supreme Court now took a decisive shift to the right and Ginsberg saw herself writing more dissents than before, prominent among them were Gonzales v. Carhart (2007) on abortion, Ledbetter v. Goodyear Tire & Rubber Co. (2007) on employment discrimination, and Citizens United v. FEC (2010) on federal campaign financing regulations. Also noteworthy, but not highlighted in the book, were Ginsberg’s majority and concurring opinions in landmark gay rights cases like Lawrence v. Texas (2003) which decriminalized private and consensual same-sex conduct between adults nationwide and granted gay people the right to privacy- thereby invaliding Doe v. Commonwealth’s Attorney of Richmond- the 1976 judgment that Ginsberg previously upheld; Obergefell v. Hodges (2015) which legalized same-sex marriage nationwide- in which Ginsberg joined the majority; and the now infamous Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) case in which the majority upheld a Colorado baker’s right to refuse baking a wedding cake for a same-sex couple on the grounds that it infringed upon his right to free exercise of religion. In the Masterpiece case, Ginsberg dissented and sided with the same-sex couple along with fellow liberal Justice, Sonia Sotomayor. This decision was noteworthy because it brought nationwide attention to the conflict between free speech with gay rights. And while the Masterpiece ruling was narrow, it was decided by a wide 7-2 margin. This made it clear that even though the Court recognized the dignity of same-sex couples, it could not compel people with different religious beliefs to feel the same way. A more recent case from Colorado, 303 Creative LLC v. Elenis, which concerns a Catholic website designer’s refusal to make custom websites celebrating same-sex marriage has already made its way to the Supreme Court and is expected to expand the contours of the Masterpiece decision- thereby limiting the rights of same-sex couples demanding services from public accommodations in Colorado, if not the rest of the country.

Another issue that ought to have found its way in the book is a commentary on Ginsberg’s own controversial record on race. While Ginsberg relied extensively on the Reconstruction Amendments (also called the ‘Civil War Amendments’) to fight for gender equality, oftentimes equating race-based discrimination with gender-discrimination, her law clerk hiring record lacked the same panache in terms of race diversity. In her 25 years on the Supreme Court, she hired only one African American law clerk, and during her time on the Court of Appeals, none. This was also an issue raised during her confirmation hearings, but sadly, it finds no mention in the book. The Washington Post highlighted that in comparison, conservative Justice Brett Kavanaugh had one of the most diverse hiring practices as a federal appellate judge. Of his 48 law clerks, most were women (25 females and 23 men to be precise). And all of his hires from 2014 to 2015 were women. Of the 48 hires, 13 were minorities: 5 African Americans, 6 Asian Americans, and 2 Hispanics. This is interesting given Kavanaugh’s problematic views on “race neutrality”- the idea that everyone would be viewed as “one race” under the law in the future, thereby removing the necessity of affirmative action. It is very difficult to explain this perspicuous paradox between Ginsberg and Kavanaugh- for the former championed the idea of “seeing” inequality as it appeared in the law, yet failed to apply that principle it her chambers; while the latter tried “not to see” differences in people in the law, yet ended up with a diverse cohort of women and minorities in his chambers. Call it luck, coincidence, conscious or unconscious bias- the numbers speak for themselves.

Overall, Kanefield’s account of Ginsberg’s life is engaging, intense, and strong- just like the person she was writing about. For those familiar with Ginsberg’s work, this biography will perhaps offer them a new and/or a closer perspective on her litigation strategy. And for those unfamiliar with her work but curious to know more about her, this biography should hopefully help them understand how Ginsberg’s upbringing informed the way she saw the world and the law. In addition to writing about Ginsberg’s contribution to gay rights jurisprudence and her controversial hiring record, Kanefield could have specifically included a few more topics in the biography to make it even more relevant to the zeitgeist of the 21^st Century- such as Ginsburg’s opinions on the first amendment, religious freedom, and federalism.