« When I’m sometimes asked ‘When will there be enough [women on the Supreme Court]?’ and my answer is: ‘When there are nine.’ People are shocked. But there’d been nine men, and nobody’s ever raised a question about that. » Those were the words of the late American Supreme Court Justice Ruth Bader Ginsburg, trailblazer for gender equality.
Ruth Bader Ginsburg, well known under the acronym “RBG”, was the second woman and first Jewish woman to ever serve on the U.S. Supreme Court. She was nominated by President Bill Clinton in 1993 and served until her death in September 20201.
Born in 1933 in Brooklyn, she graduated from Cornell University in 1954 before attending Harvard Law School where she was one of the only 9 female students in a class of 500. RBG and her female classmates inevitably faced gender discrimination while being at school. For instance, they were accused of taking a man’s seat in the program and were not allowed to use specific sections of the library2. In 1956, RBG’s husband, Martin D. Ginsburg, who was also a law student at Harvard, fell ill with cancer. She started taking care of him while raising their young daughter. She rarely got more than three hours of sleep but remained at the top of her class3.
After his recovery, her husband accepted a position at a law firm in New York. RBG followed him and transferred to Columbia Law School where she graduated in 1959 at the top of her class. Despite being a member of both the Harvard and Columbia Law Review and excelling at school, RBG struggled to find employment upon graduation4. Her struggles, however, did not stop her from having a shining career.
As an attorney, she appeared before the Supreme Court six times, between 1973 to 1978, winning five cases out of six5. One of her most famous cases was Weinberger v. Wiesenfeld6, in which she defended Stephen C. Wiesenfeld, a widower who had been discriminated against. Stephen was married to Paula Polatschek in 1970. Paula worked as a teacher before and during their marriage. Social security contributions were deducted from her salary each year. Her salary was the family’s primary source of income. When she died in childbirth, Stephen was left with their child and applied for social security allowances for himself and for the infant. His son was eligible for such benefits, but he was not; according to the law, benefits were only available for widows, but not widowers. The Court ruled that “[t]he gender-based distinction mandated by the provisions of the Social Security Act (…) violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners.7”
The fight for women’s rights and gender equality has also been a subject of discussion between RBG and former Chief Justice of the Supreme Court of Canada, Beverley McLachlin8. Indeed, both women were aware of their responsibilities as pioneers in the legal profession – a profession that was once reserved for men.
As former Justice McLachlin mentions in her memoir, “[i]n April 1989, I was sworn in as a justice of the Supreme Court of Canada. Pundits hailed the appointment of a third woman to the court of nine as a remarkable advance for women’s rights. I was less convinced. Male justices still outnumbered women by two to one. Most of the speakers at the swearing-in ceremony were men, and when I scanned the courtroom, I saw more male faces than female.9”
Beverley McLachlin was appointed to the Supreme Court of Canada in 1989, at the age of 45, by Prime Minister Brian Mulroney. In 2000, Prime Minister Jean Chrétien appointed her as chief justice. She made history by becoming the first female chief justice of a Commonwealth nation’s highest court. She served on the bench until December 2017, nine months before her 75th anniversary, which marks the mandatory retirement age, making her the longest serving chief justice of the Supreme Court of Canada10.
Former Justice McLachlin was born from an immigrant family in a small town in Alberta, and later became the author of decisions that impacted the whole country11. She participated in the most important judgements of the Supreme Court in the area of the Charter of Rights and Freedoms12 and her way of thinking was ahead of her time. For instance, in 1993, the Rt. Hon. McLachlin was a dissenting voice in Rodriguez v. British Columbia (Attorney General)13 where the Supreme Court, by a slim majority, upheld the prohibition on assisted suicide, ruling that the prohibition did not violate s.7 of the Canadian Charter and if it violated s. 15, it was justified under s.1. Four justices dissented, including Justice L’Heureux-Dubé and Justice McLachlin, concluding that it was a violation of s.7 that could not be justified under s.114. More than twenty years later, the Supreme Court in Carter v. Canada (Attorney General) concluded unanimously that the prohibition on medical-assisted dying violated s.7 and that the violation is not justified under s.115.
Justice Claire L’Heureux-Dubé, the second woman and first woman from Québec to be appointed to the Supreme Court, and Justice McLachlin, have been a powerful duo during their time at the Supreme Court. In R. v. Ewanchuk16, they both denounced stereotypical assumptions regarding women victims of sexual assaults: “[t]he specious defence of implied consent (…), as applied in this case, rests on the assumption that unless a woman protests or resists, she should be ‘deemed’ to consent (…). (…) [T]he idea (…) surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.17”
Since the Supreme Court of Canada’s existence, ten women have been appointed as judges, the first one being The Hon. Bertha Wilson in 198218. Our society is evolving and, as RBG once said, “[w]omen belong in all places where decisions are being made”. Not only do female judges allow the court to be more representative of the people it serves, but they also bring different perspectives to the debates.
- Kerri Lee ALEXANDER, « Ruth Bader Ginsburg », National Women’s History Museum, online: <https://www.womenshistory.org/education-resources/biographies/ruth-bader-ginsburg> (Accessed Aug. 28, 2021).
- Rachel E. GREENSPAN, « The Only Person I Have Loved.’ Inside Ruth Bader Ginsburg’s History-Shaping Marriage of Equals », Time, online: <https://time.com/5488428/ruth-bader-ginsburg-marriage-equals/> (Accessed Aug. 28, 2021).
- « Ruth Bader Ginsburg », Oyez, online: <https://www.oyez.org/justices/ruth_bader_ginsburg> (Accessed Aug. 28, 2021).
- « Ruth Bader Ginsburg: A Reading List », The Library at Washington and Lee University School of Law, online: <https://libguides.wlu.edu/law/RBG/arguments> (Accessed Aug. 28, 2021).
- Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
- Beverley McLACHLIN, Truth Be Told – My Journey Through Life and the Law, Toronto, Simon & Schuster Canada, 2019, p. 2.
- Id., page 1.
- Kirk MAKIN, « Beverley McLachlin », The Canadian Encyclopedia, online: <https://www.thecanadianencyclopedia.ca/en/article/beverley-mclachlin> (Accessed Sept. 5, 2021).
- Catherine Anne FRASER, « Tribute to the Right Honourable Beverley McLachlin Retired Chief Justice of Canada », (2018) 76 Advocate, Vancouver, 681-686, p.682.
- Id., p. 683.
- Rodriguez v. British Columbia (Attorney General),  3 S.C.R. 519.
- Carter v. Canada (Attorney General), 2015 SCC 5, par. 5.
- Id., par. 3.
- R. v. Ewanchuk,  1 S.C.R. 330.
- Id., par. 103.
- « Current and Former Judges », Supreme Court of Canada, online: <https://www.scc-csc.ca/judges-juges/cfpju-jupp-eng.aspx> (Accessed Sept. 6, 2021).