News & Commentary

With the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of “equal protection of the law” than Ruth Bader Ginsburg, who died on Friday. Where Marshall, as director-counsel of the NAACP Legal Defense Fund, succeeded in dismantling Jim Crow segregation, Ginsburg, as the first director of the ACLU Women’s Rights Project, persuaded the Supreme Court that women and men, long treated differently under the law, must be accepted as equals. Neither acted alone; they carried the torches of the civil rights and women’s rights movements, respectively. Their courtroom arguments were buoyed by broader political currents. But both achieved far-reaching, historic changes in constitutional law. And both did it incrementally, through careful, painstaking work, aimed at appealing to those not already with them. As Ginsburg said, “Fight for the things that you care about, but do it in a way that will lead others to join you.” In the last years of her life, Ginsburg became an unlikely celebrity. RBG T-shirts, mugs, earrings, bobblehead dolls, workout gear, and books all became best-sellers. In 2018, both a documentary, RBG, and a Hollywood feature film, On the Basis of Sex, appeared, to popular and critical acclaim. Chief Justice John Roberts quipped, at the unveiling of a portrait of Ginsburg, that his children asked him why he, too, didn’t have a rapper’s moniker. She deserved every bit of the praise. One of only nine women in a class of about five hundred at Harvard Law School, she broke many barriers, and her work made it possible for young women today to take for granted that they cannot be denied admission, jobs, or other benefits simply because of their sex. That’s radical. Note: This piece was first published in the New York Review of Books on September 20, 2020

In the past 10 weeks, the federal government has executed more people than in the last 57 years combined. This streak of fatalities are the result of Trump’s crude and cruel election-year efforts to prove himself as the “law and order president.”    Now, the ACLU has received new, bombshell information about the high cost of President Trump and Attorney General William Barr’s rushed execution policy. The new data — which became available after the ACLU submitted a Freedom of Information Act request last month — speak loudly about just how willing this administration is to disregard the health and safety of the many to push its law and order agenda forward. According to the documents, a BOP staff member worked with “a lot” of staff and “a lot of prisoners” while sick with Covid-19, without wearing a mask. The BOP tested just 22 staff, even though a previous declaration shows that the infected staff member was likely in contact with at least 100 people. The documents show that several of the staff members who came in contact with him declined testing, and the BOP adopted a risky new policy that allowed infected staff to return to work after just 10 days of no symptoms, without being retested for the virus. Three people at Terre Haute prison have died from COVID-19 — two just last week — and many more have become sick, hospitalized, and held in solitary confinement as COVID-19 ravages the facility. This was all the predictable, preventable, and senseless result of the federal government carrying out the first federal executions in 17 years during a pandemic. Trump’s deliberate decision to “play down” the threat of the pandemic undoubtedly encouraged the lax administrative conduct of the BOP and the reckless conduct of individual prison employees. From Bob Woodward’s Rage, we know from Trump himself that eight months of declaring COVID-19 a hoax, of sidelining and disparaging public health experts, and maligning mask-wearing Democrats, was a lie — a level of mendacity unheard of in the American political tradition. Two hundred thousand American lives have been lost to the pandemic, and to Trump’s version of American exceptionalism. Given the revelations in Rage, is there any wonder that Trump and his DOJ would break and bend the law and legal processes in carrying out five executions this summer?  Trump’s executions broke every rule for reducing COVID-19 risks, and spikes in COVID-19 cases at Terre Haute were the predictable result. People without death sentences are dying so that Trump can kill death row prisoners during a pandemic. Such collateral damage was all but guaranteed, given the well documented super-spreader nature of prisons, and the compounding factors of travel required by these federal executions. The BOP didn’t even bother to require staff to wear masks, according to the FOIA documents we received. In July 2019, the Federal Government announced that it planned to move forward to schedule executions of federal prisoners for the first time nearly two decades. Then, on June 15, 2020, new execution dates were made public. Just days after this announcement, the United States had back-to-back record highs in daily new COVID-19 infections. In response to these growing numbers, accompanied by a rising death toll, many states paused their reopening plans and some even began imposing restrictions they had lifter earlier. Meanwhile, the Federal Government gathered hundreds of people at FCC Terre Haute, a facility with known cases of COVID-19, for the purpose of carrying out the executions of Daniel Lee on July 14, Wesley Purkey on July 16, and Dustin Honken on July 17. Following the back to-back July executions, the county where the prison is located experienced a major surge in confirmed COVID-19 cases. In spite of this public health outcome, the federal government proceeded to execute Lezmond Mitchell and Keith Nelson at FCC Terre Haute on August 26 and 28, respectively. This week, the federal government plans to execute two more people: William LeCroy and Christopher Vialva. So, let’s review what the ACLU’s FOIA findings tell us about Trump and Barr’s execution spree:

Ruth Bader Ginsburg recognized that dismantling patriarchy was necessary not only for women’s liberation, but for all of us to have the freedom to thrive regardless of gender. That certainty drove her strategy during the eight years she spent as director of the ACLU Women’s Rights Project, which she co-founded with Brenda Feigen in 1972. No case better encapsulated Ginsburg’s strategy in the 1970s than that of Charles Moritz. Moritz was solely responsible for the care of his elderly mother, but he had been denied a caregiving tax deduction because he was an unmarried man. By representing him, Ginsburg was able to show male judges that sex discrimination hurt men as well as women. And, because the case originated in tax court, it allowed Ginsburg and her beloved husband Marty, a tax specialist, to collaborate on work as well as life. The government’s defense in the case backfired spectacularly. It pointed to a hefty list of federal statutes that, like the one that disadvantaged Moritz, expressly distinguished between women and men. Ginsburg couldn’t possibly be right about the tax law, argued the government, because if she was, then hundreds if not thousands of other laws would be unconstitutional, too. Ginsburg prevailed, and the list – known as “Appendix E” – became WRP’s playbook as Ginsburg and her colleagues systematically took aim at laws that discriminated on the basis of sex. While Ginsburg succeeded in establishing that the government could not condition benefits on sex, the private sector has been slow to catch up. In recent years, WRP has challenged employer policies premised on the generalization that women are the primary caregivers at home and has fought for men and women to be entitled equally to benefits like parental leave to care for newborn children. Men’s full participation in early days of parenting can lead to more equitable family roles over the long haul. Ginsburg knew that, in order for women to step out of caregiving roles, men would have to step into them. That’s not to say that Ginsburg prioritized work outside the home over work within it. To the contrary, it was her fervent hope that everyone could share equally in the joys and labor of family life. I had the opportunity to interview Justice Ginsburg in what turned out to be one of her final public appearances. Knowing that she had often been asked how she balanced her own career with parenting, I wondered whether anyone had ever asked her husband about how he achieved work-life balance. Unfortunately, Marty wasn’t there to speak for himself, having died a decade earlier. Instead, I asked Ginsburg what advice she would give to men who are working and parenting. “One of the saddest things about men’s lives is that they’re out there working,” she answered, “and one day their children are grown and they didn’t have any real part in raising them.” I remembered Ginsburg’s remarks in that moment on Friday evening when we learned, as the sky went dark and a new year began according to the Jewish calendar, that she had died. Just as childhood is fleeting, so too she had left us too soon. We at the ACLU will use each day to carry forward her legacy. Note: This piece was originally published in SCOTUSblog on Sept. 21, 2020

The National Voter Registration Act (NVRA) is often referred to as the “motor voter” law because it requires states to offer voter registration at the DMV. The statute also requires certain state and local agencies, including public assistance and disability agencies providing Medicaid, Supplemental Nutritional Assistance Program (SNAP), and other similar programs, to provide clients with the opportunity to register to vote and assistance with registering whenever they apply for or recertify their benefits or submit a change of address. Unfortunately, it is all too common for states to neglect or ignore the NVRA requirements. Many states recently upgraded to online systems to streamline the process for clients to apply for and recertify their benefits, but failed to provide NVRA required voter registration opportunities through these new platforms. Other states incorrectly place the burden on clients by making receiving a voter registration form an opt-in rather than opt-out process. And many states completely fail to provide clients with the opportunity to register or update their voter registration when they report a change of address. As a result, millions of Americans — particularly low-income, minority, and disabled citizens, all of whom are already underrepresented in the electorate — are illegally denied their federally-mandated opportunity to register to vote. Low income voters traditionally face numerous obstacles to voter registration and, consequently, have among the lowest registration rates. More than 85 percent of citizens with a family income at or above $150,000 were registered to vote in November 2016, compared to only 57.7 percent of those with incomes below $10,000.[1] Low income voters are also more likely to move frequently and thus need to update their voter registration address. In order to help rectify these NVRA violations, the ACLU Voting Rights Project, along with our partner organizations, have engaged in extensive litigation and advocacy to ensure that citizens with low incomes are provided the voter registration services they are legally entitled to. As a result, this year multiple states agreed to extensive mail campaigns to provide voter registration packets, including registration applications, to public assistance clients.   As of today, almost 3 million Medicaid, SNAP, and Low Income Energy Assistance (LIEAP) clients in Arizona, Kansas, Michigan, North Carolina, and Virginia have received voter registration applications in the mail. And due to the ongoing mailings, that number will grow before the fall voter registration deadlines. For example, in Arizona each month approximately 100,000 Medicaid clients will receive these mailings until the state’s NVRA violations are permanently resolved.

No one expected their words to be enlightening or their tone harmonious. Hatred rarely comes in such flavors. It spills out as an ugly, incoherent mess infused with the rotten odor of willful ignorance. And so it was with the Nazi wannabes — self-styled white supremacists determined to make their mark on the world, committed to convincing anyone who might listen that their superiority was both evident and inevitable. The setting was downtown Charlottesville, Virginia, August 2017. Their mission was unity — of like-minded hate mongers. Their leader, Jason Kessler, was a 33-year-old who lived with his parents and had once supported Barack Obama. He had learned that many demographers thought whites would eventually become a minority race in the United States. That news was so unsettling that Kessler remade himself into a white-rights activist. He styled himself as “a civil and human rights advocate, focused on the Caucasian demographic” in the mode of “Jesus Christ or Mahatma Gandhi.” His “Unite the Right” rally, observed the Christian Science Monitor, “was supposed to be the movement’s coming out party, an emergence from the shadows of internet chat rooms into the national spotlight.” Kessler was inspired in part by fellow University of Virginia graduate and white supremacist Richard Spencer who, in May 2017, led a band of racists in Charlottesville chanting “Russia is our friend” and “Blood and soil,” a Nazi-inspired slogan. Why they were enamored of Russia is anyone’s guess; I presume it had something to do with President Trump. The reason for the Nazi chant was evident; they thought it allowed them to channel the spirit of General Robert E. Lee, who had abandoned the U.S. Army in a doomed quest to preserve race-based slavery in the South. Charlottesville’s leaders recently had voted to remove Lee’s statue from the downtown park that no longer carried his name. Spencer and his crew opposed that effort and everything they thought it implied, including hostility to the legacy of whiteness. The Loyal White Knights of the Ku Klux Klan were similarly motivated by the perceived threat to American whiteness. Its members — 50 strong — converged on Charlottesville that July to march around and shout “white power” as hundreds of counter protesters responded with “racists go home.” How did the mad ravings of a bunch of intellectually confused, racially paranoid misfits end up spurring a national debate over the limits of free speech, the meaning of the First Amendment, and the moral obligation of the president of the United States? One reason is that — despite Kessler’s efforts to cast himself as the Martin Luther King Jr. of white rights — the rally engendered fears of made-for-TV-scale violence. As news of the event spread, and some sense of its size became clear, several local businesses announced they would temporarily close out of concern for the safety of their customers and employees. The University of Virginia, located in Charlottesville, asked students to stay away. Many rally participants showed up armed with rifles and other deadly weapons (thanks to Virginia’s open carry laws). Indeed, even before the rally’s scheduled noon start time, Kessler’s congregation had ignited so much hostility and ugliness that local authorities labeled the gathering an “illegal assembly” and ordered participants to leave. In the end, the racist, anti-Semitic hate-fest caused three deaths. Two of the dead were state troopers. Berke Bates and H. Jay Cullen, assigned to monitor the gathering from the sky, died when their helicopter crashed. The third victim was Heather Heyer, a 32-year-old paralegal. James Alex Fields Jr., a 20-year-old Adolf Hitler fanatic from Ohio, killed Heyer by intentionally plowing his car into a crowd of counter protesters — injuring some 19 people in addition to Heyer, who died from blunt-force injury to her chest. Following the tragedy, Donald Trump famously condemned the “hatred, bigotry, and violence on many sides.” His words provoked a controversy that went on for months as Trump proved incapable of criticizing the racist mob without also condemning those who opposed it. Heyer’s mother, Susan Bro, was so sickened by the president’s words that she refused to take his condolence call. “I’m sorry. After what he said about my child,” Bro told CNN, and added, incredulously, “I saw an actual clip of him at a press conference equating the [counter] protesters … with the KKK and the white supremacists.” James Fields’ lawyers sought mitigation by stressing his history of mental illness. A psychologist testified that he had been diagnosed with bipolar disorder at the age of 6 and later with schizoid personality disorder. His lawyers also delved into his childhood traumas, which included coping with the murder of his grandmother by his grandfather, who had subsequently killed himself. “James’s mental illness causes him to lose emotional and behavioral control in stressful situations,” said his attorneys, who claimed he had taken himself off his meds when he was 18, meaning he was medically untethered when he murdered Heyer. After pleading guilty, Fields received two life sentences — one in state court and the other in federal court. Even with Fields confined to prison, questions raised by Heyer’s murder — and the rally that caused it — reverberated. Trump’s troubling insistence on calling bullying bigots “very fine people” was perhaps inevitable given his need to placate a base that contains more than its share of people like David Duke, the former Ku Klux Klan grand wizard who promoted the rally as an effort to “take our country back” and who, after Heyer’s murder, thanked Trump via tweet for his “honesty & courage.” Duke also tweeted, “This is why WE LOVE TRUMP and WHY the FAKE NEWS MEDIA HATES TRUMP. He brings to light what the lying, Fake News Media Won’t. The truth is the media covers up horrific numbers of racist hate crimes against White people!” But putting the president and his behavior aside for the moment, what about the free speech community — the civil libertarians who successfully fought in court for Kessler’s right to hold his rally in downtown Charlottesville? The city had wanted to move Kessler’s parade of bigotry to another park, one farther from the heart of town that officials claimed would be easier to police. But Kessler had said no; and the American Civil Liberties Union, along with a local outfit called the Rutherford Institute, had sued the city on Kessler’s behalf. Following the event, the ACLU was heavily criticized — and also lauded — for standing up for the racist rabble-rousers. Glenn Greenwald, best known for reporting on U.S. surveillance programs brought to light by whistleblower Edward Snowden, forcefully defended the ACLU. Civil liberties advocates, he argued, “defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.” Others were not so sure. The Guardian reported on an erosion in “the belief that the KKK and other white supremacist organizations are operating within the bounds of acceptable political discourse — rather than as, say, terrorist organizations — and therefore have a moral right to be heard.” Jessica Clarke, a law professor at Vanderbilt University Law School, pointed to studies showing that bigots routinely hid behind free speech arguments as a cover for racism. Highly prejudiced people, she noted, “were less likely to voice First Amendment objections when the threatened speech was race-neutral, suggesting their free speech concerns were more about the freedom to express racist prejudice than free speech in general.” Legal scholar Laura Weinrib noted that the ACLU had never blindly supported free speech but had done so in the fight for a better society; and she wondered whether “a dogged commitment to free speech” was still the best strategy for an organization pursuing social justice: “The balances have shifted dramatically since the 1930s. In recent years, nearly half of First Amendment victories have gone to corporations and trade groups challenging government regulation. Free speech has served to secure the political influence of wealthy donors. Labor’s strength has plummeted, and the Supreme Court is poised to recognize a First Amendment right of public sector employees to refuse to contribute to union expenses. Long-settled principles of American democracy are newly vulnerable, and hate has found fertile terrain.” Even Susan Herman, president of the ACLU, questioned whether old assumptions about free speech still applied: “We need to consider whether some of our timeworn maxims — the antidote to bad speech is more speech, the marketplace of ideas will result in the best arguments winning out — still ring true in an era when white supremacists have a friend in the White House.” Leslie Mehta, the young black attorney who was legal director of the ACLU of Virginia when it took the Kessler case, seemed confident, when I interviewed her in the aftermath of Heyer’s death, that she had made the right decision. “There were certainly lots of conversations between myself and the executive director. There were a lot of revisions back and forth with briefs and having discussions about potential implications, but nobody has a crystal ball and no one [knew] exactly what [would] ultimately happen. I do think that the First Amendment has to mean something. And at the time, it was my understanding … that there was no evidence that there would be violence.” Mehta, a native of Woodland, North Carolina, is intimately familiar with the South and with the United States’ legacy of brutal racial oppression. She went to historically black Howard University School of Law because of its reputation for creating lawyers devoted to “social activism and social justice.” But she also is adamantly committed to the idea of free speech. “I think one of the reasons why free speech is so important to me is because … it exposes what you disagree with. And for me, I think it’s important to hear things like our president saying … ‘Well, there are good people on both sides.’” Mehta also thought it was important to consult with her mother and her 92-year-old grandmother as she proceeded with the Kessler case. Her grandmother, she confided, “never said that she fully agreed or disagreed [with Mehta taking the case], but she did not think that I was wrong.” As anyone trying to understand the Charlottesville fiasco quickly discovers, the issue of speech — particularly in a society polluted by racism and largely defined by economic inequality — is endlessly complex. So let me begin this journey with a brief exploration of how the U.S. came to embrace such a broad notion of free speech, and let’s look at some decisions made in its name. ••• We tend to think our current conception of free speech has been around essentially since the beginning of the republic. In truth, our firm and collective embrace of the First Amendment is a relatively recent phenomenon. The Constitution was drafted at a time when the Founders had rejected foreign tyranny. They were wary of the potential power of a centralized state. So the Bill of Rights was a balancing act, weighing not only the rights of individuals versus government in general but also the rights of states versus the federal government. Indeed, at the time the Bill of Rights was ratified, the First Amendment did not apply to the states. As legal scholar David Yassky has pointed out, the Constitution’s guarantee of free speech was “quite weak — at least to contemporary eyes. A citizen in 1800 had no absolute right to free speech; if the speech-restricting law was a state law, the Constitution was silent.” Eventually that changed, and that had a lot to do with the Civil War, the end of slavery, the 14th Amendment, and assorted court decisions. But even after the Reconstruction era, free speech, as we understand it today, was nothing but an aspiration, which is one reason that Southern states could effectively outlaw agitation for abolition. Free speech is very much an invention of the 20th century. And that concept of speech is very idealistic, inextricably linked to the notion that in the competition of ideas, good ideas generally crowd out bad. That argument received its most famous articulation in a 1927 case: Whitney v. California. At its center was Charlotte Anita Whitney, a wealthy California blueblood convicted of joining the Communist Party. She argued that her prosecution violated the Constitution. The Supreme Court unanimously disagreed. But even in disagreeing with her position, Louis Brandeis (joined by Oliver Wendell Holmes Jr.) produced a brilliant and eloquent exegesis on the potential of free speech to enact social change: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.” As Brandeis saw it, free speech was virtually a sacred right and an awesomely powerful force that would expose “falsehood and fallacies” and “avert … evil by the processes of education.” Hence, the remedy to bad speech was “more speech, not enforced silence.” That piece of writing has been deemed one of the most important commentaries ever crafted on the First Amendment. But Brandeis assumed something that has not been borne out by facts, which is that the better argument would generally win. He also assumed that relevant people on all sides of a question were equally capable of being heard and that skeptics were interested in listening. That fallacy continues to inform the thinking of those who see speech as inherently self-correcting. Much as many of us admire Louis Brandeis’s mind and spirit, the society he envisioned has never existed. Instead, we have created a society in which lying is both endemic and purposeful. We have brought the worst values of advertising into the political sphere and wedded that to long-established tactics of political propaganda, even as our political class has learned to use social media to spread disinformation that propagates at a breathtaking rate. The very idea that political speech would expose and therefore vanquish “falsehood and fallacies” now seems incredibly naïve. Free speech always had limits. But because of our new technological reality, because of the unexpected weaponization of speech, we are having to consider those limits in a new light. We live in a world where it is far from clear that the answer to bad speech is more speech; and where a foreign power, thanks to our freedom of expression, may well be responsible for the election of a U.S. president. We live in a time when a frightened white minority within the larger white majority fights to maintain control of our country; and when large corporations and cynical functionaries — eager to exploit fear — have a bigger megaphone (including their own television news networks) than anyone speaking for the powerless and dispossessed. We live in an era when the U.S. awarded its presidency to a man who lost the election by roughly 3 million votes, and who, with the cooperation of a submissive Senate, has appointed judges determined to thwart the will of the public; has proposed policies, supported largely by lies, designed to further divide an already polarized nation; and caters to an irrational mob whose most fanatical elements want to refight the Civil War. All of this raises a host of difficult questions: If the Brandeisian view of speech is fatally flawed, what is a better, or at least a more realistic, view? Is it possible to reverse these trends that are destroying our democracy? How do we balance an array of important societal values that compete with the value of free speech? How, in short, do we enable a relatively enlightened majority to rescue our country from an embittered, backward-looking minority? And what happens to speech — which has never been totally free — in the process?

Ruth Bader Ginsburg, the Supreme Court justice who first rose to national prominence as an ACLU lawyer fighting for equal rights for women, has died at 87 years old.   She began Harvard Law School as a young mother and one of only nine women in her class, and became the architect of a legal strategy to eradicate gender discrimination in the United States. She modeled her approach after that of Thurgood Marshall on race discrimination, planning for a series of cases at the Supreme Court, each precedent paving the way for the next that would further expand rights and protections. In 1993, she joined the court as an associate justice, and over the decades became a cultural icon beloved for her vision and passion in defending the rights of women.   Ginsburg was born in Brooklyn in 1933 to Jewish parents with roots in Eastern Europe. Her mother Celia, who died shortly before Ginsburg graduated from high school, instilled in her a sense of independence and a love of learning. She went on to Cornell University, where at 17, she met her future husband, Martin Ginsburg. They married after graduation, and soon had a daughter, Jane.   Ginsburg attended Harvard Law School, where women were barred from living in the dorms and from using certain campus facilities. When the dean hosted a dinner for the first-year women, Ginsburg recalled, “He asked each of us to stand up and tell him what we were doing taking a seat that could be occupied by a man.” Discrimination dogged her early career. After transferring to Columbia Law School, she graduated first in her class, but she had trouble getting a job. She later accepted a position teaching civil procedure at Rutgers Law School, where her employers informed her that she would be paid less than her male colleagues because she had a husband who earned a good income. She and other female professors filed a federal class-action discrimination case against the university, and won. For fear of demotion, she hid her pregnancy with her son, James, until after her contract renewal. Simply living her personal and professional life at a time of openly discriminatory policies for women had positioned her to fight. In the late 1960s, Ginsburg began volunteering for the ACLU, and soon wrote a brief in the case Reed v. Reed. Sally Reed had separated from her husband, and when their son died, both parents sought to be appointed the executor of his estate. Idaho law automatically appointed the father because he was a man. Ginsburg named as co-authors on the brief two women lawyers whose ideas had helped build her arguments: Dorothy Kenyon, an early advocate for women’s rights, and Pauli Murray, a brilliant African American activist who had pioneered the argument for applying the 14th Amendment to women’s rights. In 1971, the Supreme Court ruled for Sally Reed, the first time it would strike down a law for treating men and women differently. The court ruled that giving a mandatory preference to one sex is “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” In an ACLU memo, Ginsburg called the victory “a small, guarded step.” In 1972, Ginsburg joined the ACLU as the founding director of the new Women’s Rights Project. That same year, she also accepted a job as the first female tenured law professor at Columbia.     In the early ‘70s, gender discrimination affected most aspects of life. The Women’s Rights Project tallied hundreds of federal laws that discriminated on the basis of sex — in education, employment, reproductive rights mortgages, credit cards, loans, house rentals, prison, and the military. Most legal scholars believed the law should treat women differently, to protect them. For instance, some laws prevented female employees from lifting more than 15 pounds, or working at night. Some lawyers were beginning to take on cases of sex discrimination, often to help a specific woman, not necessarily with a view toward changing the law on gender equality. Ginsburg wanted to do just that. In 1973, Ginsburg took on another Supreme Court case. Sharron Frontiero was an Air Force officer whose husband, Joseph, had been denied the housing and medical benefits that female spouses of male Air Force officers received automatically. In writing both muscular and spare, Ginsburg expanded the scope of her brief to encompass the history of women’s subjugation, with references to Alexis de Tocqueville and Alfred Lord Tennyson, and pared down the language to a precise and devastating argument. “That’s when it dawned on me how brilliant she is,” said Brenda Feigen, then co-directing the Women’s Rights Project with Ginsburg. “She was at her most creative and profound,” she said. “She told the story of sex discrimination — how it had been and how it had to end.” It was in Frontiero that Ginsburg gave her first oral argument before the Supreme Court. “I knew that I was speaking to men who didn’t think there was any such thing as gender-based discrimination and my job was to tell them it really exists,” she has said. To make the point to the nine men who were sitting on the bench, she quoted the nineteenth-century women’s-rights advocate Sarah Grimkè: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” She apparently succeeded. Feigen, who was by Ginsburg’s side in the court, recalled, “There was not a single question from any of the justices. They must have been transfixed.”   Ginsburg’s team won the case. Yet they did not convince a majority of the justices that sex discrimination should be treated exactly like racial discrimination. “My expectation, to be candid, was that I would repeat that kind of argument, maybe half a dozen times. I didn’t expect it to happen in one fell swoop,” Ginsburg later said.   While at the ACLU, Ginsburg played a role in 34 Supreme Court cases, and won five of the six cases she argued before the court — Frontiero, Weinberger v. Wiesenfeld, Califano v. Goldfarb, Duren v. Missouri, and Edwards v. Healy. Many of her cases involved sex discrimination against men, which she felt might rouse more sympathy among the male justices, and show that discrimination hurts everyone. Ginsburg sometimes said that one of her favorite cases involved a man whose wife died in childbirth, leaving him alone to care for their newborn son. Stephen Wiesenfeld’s wife had been the primary breadwinner, and upon her death, he went to the local Social Security office to inquire about survivors’ benefits for a parent and learned that he didn’t qualify because he was a man. Ginsburg convinced the Supreme Court that the section of the Social Security Act that denied fathers benefits because of their sex was unconstitutional. She won a unanimous decision.   “Ruth was careful to build brick upon brick,” said Aryeh Neier, then executive director of the ACLU. “She wanted to create a stable structure. She wasn’t interested in reaching for the roof right away. In my tenure at the ACLU, this was the most clearly planned litigation strategy.”   Ginsburg’s legacy would be felt at the ACLU long after her departure in 1980 to become a judge on the U.S. Court of Appeals.   President Clinton nominated Ginsburg to the Supreme Court in 1993. She was introduced at her confirmation hearing by Eleanor Holmes Norton, Delegate to the U.S. House of Representatives from Washington D.C., who had served as the assistant legal director at the ACLU. “When Ruth Ginsburg founded the ACLU Women’s Rights Project, today’s axiom that the 14th Amendment applies to women was not axiomatic at all,” she said. “Judge Ginsburg has spent her life making things how they ought to be. Using her gifted mind, honed by indefatigably hard work, she has used the law, always carefully, always defensibly, for all of those left at the margins, for want of a lawyer or a judge with the brilliance and commitment to pull them mainstream. As a lawyer, she was an activist intellectual who brought grace to both roles.”   The last to testify at her confirmation hearing was Stephen Wiesenfeld, the widower for whom Ginsburg won Social Security benefits some 20 years earlier when she was at the ACLU. He described his experience of being a newly-widowed father struggling to raise his son without his wife’s Social Security benefits and how Ginsburg “saw immediately the gains, the consequences, and the long range effects and the logistics of revising this inequity in the Social Security system.”   Sen. Joe Biden, then the Chairman of the U.S Senate Committee on the Judiciary, thanked Wiesenfeld for his testimony and added, “I shared a similar fate that you did in 1972 and raised two children with a professional wife who had passed away, and it is amazing how much has changed.” Ginsburg was confirmed to the court in a vote of 96 to 3.   On the court, Ginsburg continued her efforts to push for full gender equality under the 14th Amendment. In 1996, she wrote the decision in United States v. Virginia, which struck down the male-only admission policy at the Virginia Military Institute and established a new standard of review for sex discrimination cases.   Over time, as the court became more conservative, Ginsburg also became more pointed in her dissents.   In 2006, the court ruled against Lilly Ledbetter, who had been paid less than male colleagues in comparable jobs at the Goodyear Tire & Rubber Company. In a rare move, Ginsburg, then the sole woman justice on the court, read her blistering dissent aloud from the bench. “The court does not comprehend…the insidious way that women can be victims to discrimination,” she accused. “The ball is in Congress’ court.” A few years later, President Obama signed the Lilly Ledbetter Fair Pay Act into law.   Then in 2013, the court gutted the Voting Rights Act of 1965. “Race-based voting discrimination still exists,” she rebuked her colleagues, again reading her dissent. Dismantling the act, she said later, was “like throwing away your umbrella in a rainstorm because you are not getting wet.”   In a country hungry for integrity and for leadership fighting the erosion of civil rights, a new generation of young women branded Ginsburg “The Notorious RBG” on social media, and showed their esteem for her in unexpected ways. Children dressed up as Ginsburg for Halloween, her face appeared on tattoos, pillows, and shower curtains, and her story was told in a documentary and a feature film, multiple biographies, and several children’s books.

Voting by mail is the safest way to cast a ballot for many voters, whether they are immunocompromised, have a disability, or simply want to protect the health of their community. Six voters from across the country shared with us why they want to vote by mail, and why it should be an option for all voters. No excuses. 

I am tired of members of my profession dismissing my clients’ humanity. Sadly, it happens a lot: “Your clients are probably lying to you, which is unsurprising,” reads an email from a representative of the Texas State government. “People get better medical care in jail,” claim people who have never been incarcerated a day in their lives as reason to keep people locked up during this pandemic. “We can’t trust inmates to follow the law, so how could we trust them to quarantine from others if they were released?” asks a judge who swore an oath to protect the fundamental rights of these “inmates.” It should not be news to anyone that the scales of justice are tipped in favor of the powerful, but it’s never been starker to me than now. I’ve spent the last six months on the frontlines of the legal battle to protect incarcerated people from preventable illness and death as jails and prisons fumbled their response to the COVID-19 crisis. What I’ve seen is a chasm between the courage and humanity of my clients — people discarded in crowded facilities trying

For years, the Smith County School System in Carthage, Tennessee, has violated the separation of church and state with impunity. But no more.   Yesterday evening, a federal district court issued a permanent injunction that requires the school district to stop an array of unconstitutional activities that have included, among other practices, imposing prayer on students, displaying religious symbols and messages throughout school facilities, and inviting the Gideons International, an evangelical Christian association, to distribute Bibles to fifth-graders during homeroom.   The court’s order comes in the form of a consent decree, meaning the school district — to its credit — recognized that these practices are legally indefensible and agreed to an injunction to resolve a lawsuit filed last year by the ACLU and ACLU of Tennessee on behalf of two families.   The families, including