Justice Ginsburg has died: Rest in Power

The justice has died. The death of Ruth Bader Ginsburg, a US Supreme Court Justice, was announced all around the world. Flowers were laid on the steps of the Supreme Court and the lights in Manhattan went blue the day after her death. Her image was projected onto the front of the New York State Supreme Court building, above the words “Rest in Power.” The justice’s death brought public mourning, something rarely accorded women in power, and not just because few of us reach its top echelons. In Justice Ginsburg’s case, the tributes have come primarily because of her role in the struggle for gender equality in the United States, which also had repercussions in the Global South. Hers was a vote, and a dissenting body, that stood firmly against patriarchal power. In her inimitable way, she resisted the arrival of her death: “My most fervent wish is that I will not be replaced until a new president is installed.”

Justice Ginsburg was often asked when the US Supreme Court would have enough women on it, and her reported reply was: : “When there are nine.” To those surprised by this answer, she explained that “there’d been nine men, and nobody’s ever raised a question about that.” This is how racist patriarchy works, naturalizing the landscapes of power and even subduing our indignation as it constrains our ability to imagine other ways of living in our shared world and of exercising power in a democracy. In Brazil, only three women have served as justices on the Federal Supreme Court, two of whom are still on the bench, none of them Black or Indigenous. The first in Brazil’s history, Justice Ellen Gracie, endured a nightmare when the Senate vetted her and tested her legal knowledge. The following comments are from 2006, a date too recent to justify their content.

“My vote further takes into consideration her beauty and charm. So it is with great pleasure that I cast my vote.”

“As a gynecologist, I learned to deal with women up close, to have a deep understanding of female sensitivity.”

“You didn’t come to be vetted; you came to be honored.”

Women are a rarity on the courts. According to data from the Center for Justice and International Law (CEJIL), we represent only 17% of members of international courts. The Inter-American Court of Human Rights (IDH) added its first female judge in 2016. In Latin America, only 30% of higher or supreme court positions are held by women. In many of these countries – such as Brazil, Chile and Colombia – it was only in the last 20 years that courts appointed their first women. Echoing the storyline of Justice Ginsburg in the United States, Latin American women had to move into the top rungs of the justice system before the courts placed gender discrimination on the docket. This was what happened in Chile, where Justice Andrea Muñoz led a protocol and a campaign against sexual harassment in the judicial branch. Recently, Justice Gloria Ortiz, the first woman to sit as president of the Constitutional Court of Colombia, denounced cases of harassment and discrimination against women in the court.

A number of studies in the United States have shown that female judges are the concurring voices in cases of sexual harassment, gender discrimination, police abuse, and LGBTQI equality

Given the worldwide scarcity of women as judicial authorities, Justice Ginsburg will be missed even more. Her voice was not just that of the metrics of gender representativity; she was also grounded in a consciousness of gender and of the perverse effects of gender inequality on democratic equality. She described herself as the dissenting vote. This type of situation is not limited to the US courts. A survey by the Getúlio Vargas Foundation in Brazil looked at more than a thousand cases over 10 years and found that judges on the Federal Supreme Court cast 20% more dissenting votes when the rapporteur was a female justice. An even more telling finding from the study illustrates how the dynamics of gender inequality impact justices’ decisions: when voting took place in a plenary session, that is, with all the justices together, the rate of dissent when the rapporteur was a woman was even higher: 37%. In other words, when there’s a public performance, masculinity behaves even more ferociously toward women.

Justice Ginsburg once said that “as women achieve power, the barriers will fall.” We have seen how gender sensibility was brought to bear when countries led by women or by governments committed to feminism tackled the barriers erected by the Covid-19 pandemic. A number of studies in the United States have shown that female judges are the concurring voices in cases of sexual harassment, gender discrimination, police abuse, and LGBTQI equality. Political transformation demands that women with a feminist consciousness be present in politics and spaces of democratic power – both representative and non-representative spaces, like the judicial branch. Given the configuration of republican models in Latin America, especially among countries who experienced years of military dictatorship, only more recently have the courts become a space for disputing the rights of women and underrepresented groups, and in a fundamentally important way. Recent changes in laws on abortion, violence against women and gender rights have involved the courts. It is precisely at this political moment of court enchantment with feminism in Latin America that Ruth Bader Ginsburg leaves a lasting legacy.

Debora Diniz is a Brazilian anthropologist and researcher at Brown University. Giselle Carino is an Argentinian political scientist and IPPF/WHR director.