It was a week before the nation went on lockdown due to COVID-19 and still relatively cold in Washington. Members of the Supreme Court bar began lining up at 3 am to hear one of the most-watched cases of the term.
The case was June Medical Services v. Russo and, like a case the Court heard just four years prior, at issue was a state law restricting women’s access to reproductive health care through seeking to impose medically unnecessary restrictions on physicians who provide abortion.
Some lawyers, like me, were there because their clients had an interest in the matter. Others were there to be sworn into the Supreme Court bar at a ceremony that occurs before each argument day during the Court term.
As the morning progressed, it became clear that many were there for another reason: to see Ruth Bader Ginsburg in action. A young lawyer who was to be admitted to the Court’s bar that day was blunt as she talked with her colleagues in line, “I want to see Justice Ginsburg in a case like this.”
In that moment, I thought of my goddaughter who spends the summers with me in Washington every year and how she woke up at a time most teenagers would find objectionable to attend a sitting where the Court issued opinions from the bench. Her first and only comment about her day at the Court: “I got to see RBG!”
The sentiment wasn’t just from novices. A seasoned legal figure in Washington remarked as we were walking into Court that day, “I’m not sure what the result will be, but I can never see RBG enough in cases like this.”
Before little girls dressed up in white laced collars for Halloween or pop culture deemed her the Notorious RBG, Justice Ginsburg was an inspiration to a generation of women and men alike.
After being rejected for a Supreme Court clerkship on the basis of her sex, rejected from law firms for employment because she was a woman and Jewish, she found a way to use the power of her talents, education and work ethic to craft a series of incremental steps that would make the world more fair and equal, especially for women and others historically excluded from full societal participation.
Her personal challenges, including bouts with cancer, caring for her husband who fell ill in law school while attending to her own studies and his, balancing family life and a legal career, and facing discrimination, are well documented.
Through it all, she did not let obstacles – whether personal, cultural, social or political – deter her from making her way and with it, a generation of women came with her. She wrote briefs, argued cases, and taught and mentored a generation of lawyers who would make their own marks as well.
In her advocacy and later on the bench, she tested and challenged laws with brilliantly simple but critically important questions: What is the basis for a law’s treatment of one group of people in a way that differs from others? How can a law that disproportionately impacts one group of people over another be justified? What does it mean to be guaranteed equal protection under the law?
Her persistent and tenacious approach in asking these questions – whether through her advocacy as a lawyer or later through her examination of a case as a judge – is responsible for the invalidation of many arbitrary laws that sought to sanction discrimination against women and other historically marginalized people.
She understood the importance of legal process and procedural fairness in defining the contours of the rights of people. Through her private life and partnership with her husband, who was also a legal talent and towering figure, she showed the radical power equality can have in one’s personal life.
Justice Ginsburg did not disappoint that day back in March – nor did she ever. She asked the first question in the case – a procedural one aiming to highlight the unfairness of the government raising an argument late in the litigation.
She vigorously probed the parties (with humor) regarding the application of a 1970s Supreme Court case (in which she decades earlier had filed a brief) that cut against the government’s attempt to argue that the doctors in this case should be procedurally barred for challenging the restriction.
For more than an hour, she interjected into the argument at various points smart and on-point questions showcasing a mastery of all the briefs and the medical concepts about women’s health in the record.
News commentators said that her questions “persistently and systematically” dissected each point of the state’s case. They were right.
Watching Justice Ginsburg in action in a case about women’s lives and health was not just about seeing a brilliant legal mind, it was about watching a life of her legal work on behalf of equality woven together in each exchange with the advocates.
She had briefed and litigated some of the very cases that opened the door for the exchanges she would later have as a judge – systematically crafting a jurisprudence that has been utilized to create greater equality and freedom in our system of laws.
To the surprise of many who feared the Court would reverse its earlier decision, a divided Court struck down the law at issue in June Medical, finding as it had a few years prior that the U.S. Constitution prohibits medically unnecessary restrictions that prevent women from accessing care.
Throughout my time as a lawyer, I have had the privilege of writing and working on briefs read and cited by the Court in cases such as this one.
I cannot pinpoint an exact time or day when I was drawn to pursuing this work, but I do remember, as if it were yesterday, being a young girl living in Waco, Texas, in the summer of 1993.
On television, I watched a woman named Ruth Bader Ginsburg with her family sitting behind her, explain to the Senate Judiciary Committee the following: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
She continued that “it is essential to a woman’s equality with man that she be the decision-maker – that her choice be controlling” and that “if you impose restraints” on her decision-making freedom “you are disadvantaging her because of her sex.”
For nearly 30 years after these comments, Justice Ginsburg was responsible for explaining the many ways in which laws restrict the equality of women and other marginalized people.
Find a way or make one. That is what she did, whether in overcoming her personal challenges, discriminatory barriers, balancing family and work, or developing ways for the very laws that had historically justified arbitrary and discriminatory treatment of people to be a tool of liberation.
Find a way or make one. It is what she would do if she were here now. And, what we must do to continue her legacy.
In this time of pandemic, anxiety and polarization, we must be undeterred. We must find a way or make one toward a more just and inclusive society where everyone is valued.
Thankfully, we have Justice Ginsburg’s example as a map.
Editor’s note: The views expressed in this column are her own and not her employer’s.
A lawyer in Washington, DC, Perryman lives with her husband and five-year-old son. She presently serves as president and CEO of Democracy Forward Foundation. The views expressed in this column are her own and not her employers’. She is a member of the Good Faith Media strategic advisory board for news and opinion.
