55 S.M.U. L. Rev. 1755 (2002)
The Aftermath of United States v. Virginia: Why Five Justices Are Pulling in the Reins on the Exceedingly Persuasive Justification

handle is hein.journals/smulr55 and id is 1767 raw text is: THE AFTERMATH OF UNITED STATES V.
Heather L. Stobaugh*
OLLOWING the landmark decision of United States v. Virginia,1 it
appeared the Supreme Court was moving toward using a stricter
form of intermediate scrutiny in gender-based equal protection
claims. Over the years, commentators2 have argued that Justice Gins-
burg's use of skeptical scrutiny3 and her heavy reliance on the exceed-
ingly persuasive justification language in the majority opinion of Virginia
introduced a stricter test into cases involving gender-based classifications
as opposed to the traditional level of intermediate scrutiny established in
Craig v. Boren.4 Considering Justice Ginsburg's legal background and
her personal crusade against gender-based discrimination,5 the Virginia
* Candidate for J.D., Dedman School of Law at Southern Methodist University,
May 2003; M.A., University of Texas at Dallas, 1997; B.A., University of Texas at Dallas,
1994. The author would like to thank Christopher Stobaugh.
1. 518 U.S. 515 (1996).
2. See, e.g., Deborah L. Brake, Reflections on the VMI decision, 6 AM. U. J. GENDER
SOC. POL'Y & L. 35, 36 (1997).
3. Virginia, 518 U.S. at 530.
4. 429 U.S. 190 (1976).
5. In 1956, Ruth Bader Ginsburg began law school at Harvard. See Carol Pressman,
The House that Ruth Built: Justice Ruth Bader Ginsburg, Gender and Justice, 14 N.Y.L.
SCH. J. HUM. RTs. 311, 313 (1997). At the time, her husband, Martin, was also in law
school, and they had a one-year-old daughter. Id. at 312-13. When Martin graduated in
1959, the Ginsburgs moved to New York, so he could begin a new job. Id. at 314. Gins-
burg transferred to Columbia Law School, where she graduated first in her class-though
without any offers for employment. Id. at 311. Aided by one of her professors, Ginsburg
finally secured a judicial clerkship in the U.S. District Court for the Southern District of
New York. Id. Afterwards, she found her way into academia, teaching first at Rutgers
University Law School, then Harvard Law School, and finally Columbia Law School,
where she became a tenured professor. See Scott M. Smiler, Justice Ruth Bader Ginsburg
and The Virginia Military Institute: A Culmination of Strategic Success, 4 CARDOZO WO-
MEN'S L.J. 541, 544 (1998).
While teaching at Rutgers, Ginsburg began her noteworthy involvement with the Ameri-
can Civil Liberties Union (ACLU) and, on its behalf, participated in the first U.S. Su-
preme Court decision, Reed v. Reed, to hold that a statute discriminating on the basis of
gender violates the Fourteenth Amendment. Id. at 547-51. Later, Ginsburg served as gen-


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