Senate debates

Wednesday, 7 October 2020

Statements by Senators

Ginsburg, Justice Joan Ruth Bader

12:52 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Before I proceed to my statement, can I thank Senator McMahon for that contribution. We make it clear to her that Labor will continue to press for two seats for the Northern Territory. We look forward to her and the other Nationals' continued support for that position.

Honouring those who come before us is a vital principle of feminism; those who had the courage and audacity to push history forward. In the past month, we've lost three greats: Helen Reddy, who insisted her voice—a woman's roar—be heard; our Labor sister, Susan Ryan, who made equality of the sexes in Australia the law of the land, a woman to whom all of us owe so much and to whom I will pay tribute to in tomorrow's condolence motion; and the world also lost Associate Justice of the United States Supreme Court Ruth Bader Ginsburg, whose life and contribution I celebrate today. We should celebrate Justice Ginsburg not just because of the venerated role she held—hard earned though it was—but because of her commitment and her courage, from which so many have benefited.

Her story may have ended only last month, but it began in a different time altogether. When she first graduated from Cornell in the early 1950s, she took the civil service exam. Despite high marks, the only work for which she was deemed suitable was typing and, like many working women in those days, when she became pregnant she got the sack. Two years later, she returned to study at Harvard Law School. Her class had nine women and about 500 men. Even so, she was pressed by the dean as to why she was taking up a place that 'should go to a man'. This is a variation on the message given to countless millions of women: 'This is not for you. Know your place. This is not it.' But, as Ginsburg would come to say later, 'Women belong wherever decisions are being made.' And she was steadfast.

This is not to say she didn't ever doubt herself. She wrote to her cousin, saying she feared she didn't have sufficient aptitude for the law. She was often told to set her sights on something more appropriate for women, like teaching. It's a reminder that courage isn't the absence of self-doubt; it's pressing on regardless. So she completed her studies at Columbia University at the top of her class—top of the class at the best law school in New York—and Columbia recommended her for a clerkship at the US Supreme Court, but she didn't even get an interview. Law firms likewise offered nothing but rejection. Finally, a mentor from Columbia threatened a judge that his future supply of promising clerks would dry up unless he took Ginsburg on, and she was on her way. She so impressed the judge he insisted she stay for a second year. She made her way to a teaching role at Rutgers Law School, where she was told she would be paid less than her male colleagues because, 'Your husband has a very good job.'

In time, she began to focus on the legal rights of women. While working as the first female tenured professor at Columbia Law School and as the founder of the women's rights project at the American Civil Liberties Union, she brought a series of cases to upend statutes that discriminated against women. She figured out that when bringing cases to judicial benches filled entirely with male judges she was usually better off arguing a case of gender discrimination by showing how it could also harm men. As a result of her landmark Moritz v Commissioner, the government petitioned the US Supreme Court stating that the decision cast a cloud of unconstitutionality over hundreds of federal statutes, which it compiled. She then set about litigating those statutes under the constitution's Equal Protection Clause, organising client cases, finding plaintiffs and delivering the arguments. She demonstrated again and again that laws that might have been intended to help women did so by rendering women as dependant and effectively branding women as inferior.

The New York Times has observed that between 1973 and 1976 she argued six women's rights cases before the Supreme Court and won five, profoundly changing the law as it affects women. Legal commentator Jeffrey Toobin has described Ginsburg as being to feminism what Thurgood Marshall was to civil rights, both leaving indelible marks on society and the law well before their respective appointments to the US Supreme Court.

In commenting on her Supreme Court nomination in 1993 Marcia Greenberger, then co-president of the National Women's Law Centre, said that Ginsburg 'was as responsible as was as responsible as any one person for legal advances that women'. She said: 'Doors of opportunity have been opened.' Despite being known as an agent of change, Ginsburg herself was not an advocate for judicial activism. She believed elected representatives should write laws, but she did believe in justice. And justice can only be delivered where there is equal treatment before the law. If laws do not treat people equally, they cannot be just and they must be overturned.

A potential illustration of this world view was the gender payment case of Ledbetter heard by the US Supreme Court in 2007. Her dissent in that case has been described as the most effective of this generation, prompting the Lilly Ledbetter Fair Pay Act, introduced in 2009. In the other case, the owners of Hobby Lobby argued they had a right to deny contraception coverage in their employees' health plans. In her dissent, Justice Ginsburg vividly argued, 'Your right to swing your arms ends just below where the other man's nose begins.' The rights and freedoms of one person come with a responsibility not to impinge on the rights and freedoms of another.

Justice Elena Kagan is one of the two women to have followed Ginsburg onto the court. She had an easier time in the legal profession as dean of the Harvard Law School and as US Solicitor-General. Considering the question of why her experience was so much more favourable, Justice Kagan said:

… the answer is simply Justice Ginsburg. As a litigator and then as a judge she changed the face of American antidiscrimination law.

She and millions more who benefited from Justice Ginsburg's efforts are living proof that what each of us does matters for those who follow. That isn't only the case if we serve on the highest court in the land; it's not just up to a venerated few to make our world a better place. Ruth Bader Ginsburg was not born an icon, and she didn't start on her path so she could be on the Supreme Court. In fact, much of her contribution happened before she was even on the court—a series of steps, one foot in front of the other, each step an act of grit, humbly defying everything we assume about what is possible.

Of course, every new generation comes to assume what it knows life to be is what life has always been—especially when some of that seems so obvious, like the equal legal treatment of the sexes. But this assumption creates inertia against new progress, and, even worse, imperils the progress that has been won as old cultural movements seek new footholds. That, senators, is why history matters. We must understand how we got here in order to understand how to keep going. But we cannot afford to look at the great achievements of human progress and be overwhelmed by their magnitude. We can't treat that progress as the work only of great figures of history, because we are not just their beneficiaries; we are the custodians of a constant project. We must, all of us, use what we know, where we are, to do what we can. This is what Ruth Bader Ginsburg did. This is how change happens.