Her life was a quintessential cause for celebration. It was a life well lived, with total dedication to the cause of justice, and gender justice in particular. In penning these tributes my hope is that we, the servants of the law, and indeed ordinary members of the public, can draw appropriate lessons. I hope my daughters, and yours, can find further inspiration in the life of this extraordinary Justice.
Some weeks ago, a friend of mine, Mimi Zilliacus, from Melbourne, Australia, who knew of my respect for Justice Ginsburg texted to inform me of her passing. I knew she was in and out of hospital for much of the year, but did not expect that she would retire to sleep permanently, quite so soon. I would like to express my sorrow at the passing of Justice Ginsburg, an undisputed rock of principle and a champion of equality.
Before being appointed to the Supreme Court in 1993, Justice Ginsburg had dedicated her career to gender equality. She is often referred to as “the Thurgood Marshall of gender equality law”, and although she was not the first woman appointed to the US Supreme Court, she was, perhaps, the first impactful woman advocate of women’s rights to sit on the Supreme Court. The first woman to be appointed to the US Supreme Court, Justice Sandra Day O’ Connor, was not given to sweeping precedents, nor was she as passionate as Justice Ginsburg on issues of gender equality.
It is no exaggeration to say that the US Judiciary, the country and the world lost a tireless campaigner for human rights, particularly the rights of the vulnerable and the marginalized and gender rights.
I have met Justice Ginsburg thrice in my judicial excursions around the world. On every such occasion I was struck by the fact that we were of the same mind on many thorny constitutional issues of our time, such as the death penalty, same sex relationships, abortion and gender identity. Our last encounter was in Arizona where we had breakfast that spilled over to lunch. During that meal we spoke endlessly about how judges can play a role in uprooting patriarchy. One of my memorable moments was receiving her call soon after my decision in Botswana’s Mmusi case, a matter which concerned gender equality. Chuckling she said to me, “That was a beautiful rendition, although you were a bit cheeky. I loved your judicial midwives metaphor - you must come here and talk to your brothers.”
Our views on the role of judges in advancing a fairer society within the limits of law were almost perfectly aligned. We exchanged notes on our experiences at the bar and how both of us committed a chunk of our professional lives in litigating to extend the frontiers of liberty. In both cases we had mixed results depending on the extent to which judges were prepared to engage in transformative – and even disruptive – judicial reasoning.
In February 2019 I gave a lecture at the University of California, entitled, “Gender Discrimination, Sexual Reproductive Health Rights - the Role of the Judiciary in Southern Africa”. Dr Paula Tavrow, introduced me as, “the Botswana equivalent of Justice Ruth Bader Ginsburg” – an over generous remark but one which humbled me considerably. In this piece I share nuggets of her wisdom as discerned from some of her judgements.
The US law reports are littered with progressive jurisprudence on gender equality that in many ways mirror her own personal struggles as a woman. She had to battle with retrogressive laws, toxic patriarchy and stereotypes. It is a matter of record that after law school, despite graduating at the top of her class, she battled to find employment. This was largely because male bosses doubted her abilities because she was a woman.
As a professor of law, she suffered the ignominy of being paid less than her male colleagues. And a sad and painful story is often told of how she hid her first pregnancy in baggy clothes to guard against being fired. Despite it all, she was never bitter. She understood as many men and women of good will understand, that patriarchy is a societal menace that hurts everybody. Each judgment she authored on gender justice was a lesson to all, especially men, that laws predicated on gender stereotypes have no place in a modern society, and that the subjugation of women is a societal indictment, that holds everyone back, including men.
During the course of her career she battled with the jurisprudence of deficiency that sought to hold women captives of patriarchy. And, as the Supreme Court grew more conservative, her dissenting opinions in defence of equality and equal opportunities for all also grew. One notable dissent came in 2007. It was in the case of Gonzales v Carhart. In this case a majority of the Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 as constitutional. The Court held that the Act was not void for vagueness and that it did not impose undue burden on a women’s right to abortion despite its overbreadth. The majority compromised Chief Justice John Roberts, Clarence Thomas and Antonin Scalia, among others. Ginsburg was supported in her piercing dissent by several other colleagues. Every time I read her dissent I can’t help thinking that history will indeed remember her!
In the course of her piercing and blistering dissent she characterised the majority decision as “alarming” and wrote: “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long been discredited.”
I am certain that the perspectives that Justice Ginsburg espoused will continue; and because they are in accord with justice no force on earth will stop them. Every epoch has its mood and the judges for that mood. Judicial midwives and a new generation of uncaptured jurists committed to a better society will have to do their bit even in the midst of resistance born of patriarchal ideology and inclinations. Looking ahead, I have no doubt that ultimately real and substantial equality between men and women will be the order of the day and the judges will help achieve that objective. This is what Justice Ginsburg worked hard for and many on the bench are committed to continue her legacy.
Women have a right to be and to participate as equal citizens. In order to be able to do that, their right to autonomy and self- determination should not be stifled. They must be allowed to control their reproductive lives.
From the other side of the world we bid farewell to this icon of gender equality. Through her death we lose a woman whose moral integrity and commitment to justice could not be doubted. Her life will continue to serve as a beacon of hope for the attainment of true equality that works for all humanity. History will most certainly record and pronounce on the impact this singular jurist had on humanity.
And although judges and the law are not the panacea for all social ills, those amongst us, genuinely committed to justice, who regard judgeship not as a job, but a calling, must never stop, never get tired and always do our best in pursuit of justice, for the sake of our children, humanity and in memory of giants like Ruth Bader Ginsburg.
