Thursday, February 3, 2022
Earl Maltz, The Road to United States v. Virginia: Ruth Bader Ginsburg and the Battle Over Strict Scrutiny, Rutgers Women's Rights L. Reporter (forthcoming)
Throughout her long career as both a litigator and a member of the Supreme Court, Ruth Bader Ginsburg was a champion of women’s rights who insisted that the Constitution outlawed legal distinctions that were based on sexist stereotypes. However, in one important respect, the arguments that Ginsburg made as a litigator in the 1970s differed significantly from those that were embodied in her signature opinion in United States v. Virginia. During the 1970s, Ginsburg often contended that laws that treated women differently than men should be subject to strict scrutiny because sex discrimination was analogous to race discrimination. By contrast, in Virginia, although she spoke for the Court in holding that women could not be excluded from Virginia Military Institute, her opinion emphasized the differences between distinctions based on race and distinctions based on sex for constitutional purposes. This article is the first to focus on this aspect of Ginsburg’s opinion in Virginia and to provide an explanation for her change in course.