How To Be An Effective Advocate: Lessons Learned From RBG

Michael Posner
By Michael Posner
In her extraordinary life as a teacher, legal advocate, and judge, Ruth Bader Ginsburg marshaled her formidable intelligence, ability, and perseverance to significantly advance the rights of women, human rights, and the rule of law. As the public focus shifts to contentious debates about choosing her successor, those of us who share her commitment to using the law to advance social change should embrace lessons from her impressive record of accomplishment. Three things stand out: the wisdom of her legal strategies, her thoughtful perspective on the respective roles of the courts and Congress, and her inclination to engage respectfully with her ideological foes.

As an advocate, Ginsburg understood the need to go beyond persuading like-minded allies. In the 1970s, she led the efforts of the America Civil Liberties Union to develop a legal strategy for gaining equal protection for women through the courts. She realized the primary need was to persuade men, especially the nine male Justices that then sat on the US Supreme Court. She surmised that they would be more likely to listen to anti-discrimination claims if the plaintiffs were men. So she looked for instances where men were the victims of gender-based discrimination. Stephen Wiesenfeld was a widower with a young son whose wife had been the principal breadwinner in the family. After she died, he was denied survivor benefits, because the law assumed that surviving husbands would be financially secure and therefore not in need of assistance. Based on this faulty assumption, the law did not include men as permissible beneficiaries if their wives died first . Ginsburg took his case and prevailed in the Supreme Court, helping to establish the principle that discriminatory treatment based on a person’s gender, whether male or female, violated the constitutional guarantee of equal protection under the law. As an advocate for women’s rights, Ginsburg combined principle with smart advocacy. She focused on finding the path to get the right result.

Justice Ginsburg saw the courts as an essential venue to press for social change. The six cases she brought to the Supreme Court in the 1970s — five of which she won — changed the face of our country, advancing the rights of women in profound and enduring ways. But Ginsburg supported an incremental approach to litigation, one mindful of the delicate balance the Framers of the Constitution set for the three branches of government. On the issue of abortion, Ginsburg came down squarely on the side of a woman’s right to choose. And yet she repeatedly expressed concerns about the landmark Roe v. Wade decision, fearing that the sweeping scope of the opinion ventured into the legislative domain and would further inflame hostility to the courts.

Read the full Forbes article.
Michael Posner is a Professor of Business and Society and Director of the NYU Stern Center for Business and Human Rights.