Ruth Bader Ginsburg has emerged as the liberal hero of a hopelessly right-wing Supreme Court, a ram in the bush for those of us who look on in horror as the court presides over the dismantling of key pieces of legislation like the Voting Rights Act, anti-discrimination law and affirmative action policy, which have been so critical to African-American advancement since the 1960s.
In a recent interview at Georgetown University, Ginsburg reflected on the history behind one of her key legal accomplishments, the 1971 case of Reed v. Reed. After an estranged couple lost their son, his mother, Sally Reed, petitioned to administer his estate. But Idaho law maintained that “males must be preferred to females,” in such matters. Ginsburg authored the plaintiff’s brief for the case when it reached the Supreme Court, arguing that the 14th amendment protected against discrimination based upon sex. When the court ruled in Sally Reed’s favor, it was the first time that the Equal Protection Clause had been applied to a case of sex discrimination.
But much of the legal groundwork for that argument can be attributed to Dr. Pauli Murray, a Howard University-trained lawyer, who began to argue in the 1960s, that the Equal Protection Clause should be applied to cases of sex discrimination in much the same way that it had been applied to cases of racial discrimination. Murray’s argument constituted what legal historian Serena Mayeri termed “reasoning from race,” in which race analogies were used to make clear the subordinate status of women. Though today we speak of these matters in the language of intersections, a term gleaned from legal scholar Kimberlé Crenshaw, it is Pauli Murray’s initial invocation of the race-sex analogy for black women’s positionality within the law that is the most direct precursor to Crenshaw’s theory of intersectionality.
Ginsburg named Murray and Judge Dorothy Kenyon as co-authors of her brief in the Reed case, because even though they didn’t help to write it, these two women had been pioneers in creating the legal strategy for fighting sex discrimination. Ginsburg’s choice to name these women as co-authors is a model for how to solve contemporary issues among young feminists over white feminists’ appropriation without attribution of the intellectual and political labor of women of color.
18 February 2015
18 February 2015