Crafting a constitutional rationale : Ruth Bader Ginsburg and gender-based equality

Author

Melanie K. Morris

Date of Award

8-2001

Degree Type

Dissertation

Degree Name

Doctor of Philosophy

Major

Political Science

Major Professor

Otis H. Stephens

Committee Members

John M. Scheb, Robert A. Gorman, Thomas Y. Davies

Abstract

This dissertation analyzed the extent to which Ruth Bader Ginsburg's equal protection jurisprudence reflects her conception of the judicial function. It also examined Ginsburg's Influence on the development of gender-based equal protection jurisprudence. The qualitative analysis employed follows a methodological tradition consistent with the scholarship of many political scientists. Systematic analysis focused on the position Ginsburg has communicated through scholarly publications, briefs and oral arguments, speeches, and judicial opinions written through the October 1999 Supreme Court Term (and one important equal protection decision from December 2000). This study also examined scholarly commentary by political scientists and legal scholars.As scholar, advocate, and jurist Ginsburg has championed the equality of all individuals without regard to gender and has made distinctive contributions to the development of equal protection jurisprudence. Ginsburg's personal experience with discrimination sensitized her to its pernicious effects. As a result, Ginsburg has sought to realize the principle of genuine equal protection under law for all individuals. In doing so, she has not been a radical activist challenging the Establishment as an outsider. Rather, perhaps due in part to the proclivity for accommodation she developed early in life, Ginsburg has sought to achieve gradual progress as an Establishment insider.Ginsburg's efforts have yielded considerable success. Adhering to a minimalist,restraintist conception of the judicial function, Ginsburg incrementally orchestrated progressive and reversed one century of Supreme Court precedent. The Court interpreted the EqualProtection Clause of the Fourteenth Amendment to include gender classifications and later raised the standard of review beyond the most permissive analysis. Writing the majority opinion in United States v. Virginia (1996), Justice Ginsburg adhered to precedent and applied intermediate scrutiny in striking down the Virginia Military Institute's single-sexadmissions policy. Ginsburg invoked race discrimination cases as authority in fashioning a remedy, perhaps incrementally extending more rigorous protection to sex classifications even though the middle tier of review remains the applicable standard for evaluating the constitutionality of gender classifications. The majority opinion in United States v. Virginia Constitutes the most recent step forward in the achievement of gender equality orchestrated by Ginsburg.

Recommended Citation

Morris, Melanie K., "Crafting a constitutional rationale : Ruth Bader Ginsburg and gender-based equality. " PhD diss., University of Tennessee, 2001.
https://trace.tennessee.edu/utk_graddiss/8552