We mourn the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, a staunch critic of the current administration’s roll back of civil liberties and threats to our democratic institutions. She will make history again, as the first woman to lie in state. Now, forty-four days before the election, the Republican-controlled Senate will rapidly move forward to hastily confirm President Donald Trump’s conservative candidate for Ginsburg’s seat. Is history repeating itself?
When Justice Thurgood Marshall passed in 1993, a Republican Senate replaced this civil rights champion with his political opposite—Clarence Thomas. Appellate Court Judge Shelvin Louise Hall remembered thinking the appointment “was a travesty and a trick at the time of the [George H.W. Bush] administration… How could you replace a Thurgood Marshall with a Clarence Thomas whose views were the antithetical and diametrically opposed to each other? So of course, it caused us great concern.” Once again, a Republican Senate will make a replacement for Ginsburg who is also likely to be a woman, but that woman—who Ginsburg helped pave a career path for—will be the opposite of the recently deceased justice. Surely, we shall not see the likes of Ginsburg and Marshall again any time soon. As advocates of integration and rights of the oppressed, they both held a unique role on our nation’s highest court based on lived and respective experiences with discrimination as a Jewish woman and an African American man.
Early in their careers, Marshall and Ginsburg were both co-founders. In 1970, Ginsburg co-founded the first law journal in the U.S. to focus exclusively on women’s rights, the Women’s Rights Law Reporter. She also co-founded the Women’s Rights Project at the American Civil Liberties Union (ACLU) in 1972. Thirty years prior in 1940, Marshall was co-founder of The NAACP Legal Defense Fund (LDF), which provided much needed lawyers for African Americans facing charges. Elaine Jones, the first female president and defense counsel for LDF, explained the organization’s origins: “They were going to set up this new 501 (c)(3) and name it the NAACP Legal Defense Fund… [and] it was unheard of that you could have lawyers working for no money, non-profit lawyer was a new concept. And they really sold it to the courts of New York, who understood it, bought into it; and so thus LDF was born in 1940,” with Marshall as their executive director.
Ginsburg and Marshall also both argued cases in the Supreme Court as lawyers before being appointed justices there. As director of the ACLU’s Women’s Rights Project, Ginsburg argued six gender discrimination cases before the Supreme Court between 1973 and 1976, notably winning five. Marshall saw more action in the high Court, as journalist Juan Williams—who wrote a biography on Marshall—explained: “Thurgood Marshall’s won more cases before the Supreme Court than any other lawyer… he is the Babe Ruth, he’s the Hank Aaron of Supreme Court lawyers.” Stage director Vernell Lillie (1931 – 2020) vividly remembered the presence Marshall held in the courtroom when she sat in on his 1950 “separate but equal” case Sweatt v. Painter, which held significant influence in the Brown v. Board of Education case four years later: “It was sweltering hot… in that courtroom. And Thurgood Marshall… I swear in my memory… he did not seem to have perspired at all… I have never been the same after experiencing him in that courtroom… the thing that he had was dignity, not poking fun at anybody, but it was the cause that he was dealing with… it was not making whites feel ashamed of themselves… because it is so easy to be arrogant and to be insulting… And it was so very clear that somehow or another all he wanted to do was let that group there and the world know that these are human beings who are entitled to a quality education by your own state dollars that you’re paying, and it was not a piece in which I need to ridicule you or be sarcastic toward you, and sharp tongued toward you that these are the facts as I see them… and I think that fortunately for me, I saw hardworking black men and women all my life from the time I was five years old and I saw them working, and working, and working, and then I saw them lose things and I still saw them maintain their dignity, and Thurgood Marshall just helped reinforce that.”
Juan Williams emphasized Marshall’s singular role as part of a greater movement: “Much of the world we live in was shaped by his [Marshall’s] understanding of the law as the critical change element in American society… Martin Luther King [Dr. Martin Luther King, Jr.], could give great speeches, but in the mind of Thurgood Marshall, you would go home still to segregation, limited job opportunities, your children would still be going to segregated schools… Malcolm X could give wonderful speeches, speak defiantly, capture the spirit of a strong, independent, self-sufficient black man in the black community. But Thurgood Marshall said you had to get the change written into the bedrock of American law to have it there, not only for you when you go home, but for future generations. And in that sense, to change America, I think Thurgood Marshall stands apart as one of the greats.” Federal District Court Judge Damon J. Keith (1922 – 2019) pointed out the importance of using the law for positive change, something Ginsburg is also revered for: “[Marshall was] determined to use the law as a means to eradicate some of these problems [of racial discrimination]… to this day, I feel as though the law is one of the strongest bull walks for eliminating racism legally in this country. You can’t change a person’s heart but the law can prevent them from doing what they were doing.” Ginsburg’s role in the fight for gender equality was not dissimilar: “Ginsburg left a significant mark on… on everyday life in America, helping broaden the sorts of families people are able to make and the sorts of jobs they’re able to take. Her legacy is, in a way, the lives that countless Americans are able to live today… The accumulation of new protections won by Ginsburg and others has allowed many Americans to envision versions of family life beyond the breadwinner-homemaker binary.”