Date Posted: June 2010
This article examines two competing principles of equality found in Justice Ginsburg’s jurisprudence with regard to gender and racial equality. When considering constitutional challenges to gender classifications, Justice Ginsburg has focused closely on individual merit and eliminating barriers that deny women equal opportunities and respect as citizens. Justice Ginsburg has focused on a view of equality that turns on individual merit, individual achievement, and eliminating barriers that treat women as women, rather than as individuals. By contrast, in the context of racial classifications, Justice Ginsburg has repeatedly voted to uphold affirmative action programs that treat individuals differently on the basis of race. Here she has emphasized group harms and subordination, a very different principle of equality that considers the relative position of racial groups in society, rather than the needs of particular individuals. There is little to explain why individual treatment and freedom from stereotypes should be the principle for women, but not for racial minorities. Justice Ginsburg provides many good reasons for why gender equality requires the government to refrain from enacting policies based on gender stereotypes about the roles, abilities, and interests of women and men. She emphasizes that formal equality or preventing discrimination against individuals best serves the interests of women, despite their historically disadvantaged position in society. These arguments should naturally, and perhaps even more urgently, apply to racial equality.