Justice

Justice Ginsburg’s Warning To A Dysfunctional Nation

CREDIT: AP Photo/Manuel Balce Ceneta

Justice Ruth Bader Ginsburg has been a national figure for at least half of her life. As founding director of the ACLU’s Women’s Rights Project, Ginsburg probably did more than any other litigator in the nation’s history to abolish sex discrimination and gender stereotyping. As an appellate judge, she was among the most admired members of the federal bench and frequently fed her law clerks to the Supreme Court. Now, she is one of the nine most powerful judges in the country.

Yet Ginsburg is more famous today than she has been at any other point in her career. Popular memes compare the elderly justice to divas and hip hop stars. Young people tattoo her likeness on their body. One widely shared image matches Ginsburg’s grandmotherly face with a BeyoncĂ© lyric — “All them fives need to listen when the ten is talking.” Notorious RBG: The Life and Times of Ruth Bader Ginsburg, a book marking Ginsburg’s new role as a pop cultural icon, is already a bestseller one day after its official release.

notorious RBG

Yet, while Ginsburg has achieved fame rarely enjoyed by people who spend their days toiling over word processors and case books, this also must be a bittersweet moment for the elderly justice. As Notorious RBG chronicles, Ginsburg the Icon was not born from the justice’s many triumphs on both sides of the Supreme Court’s bench. It was born from an historic defeat for liberalism. As one activist is quoted saying early in the book, “everyone was angry on the internet at the same time” on the day the Supreme Court gutted much of the Voting Rights Act in Shelby County v. Holder. Their anger was mirrored by Ginsburg, who likened the Court’s decision to invalidate much of the act because it successfully eliminated much voter suppression to “throwing away your umbrella in a rainstorm because you are not getting wet.” Amidst this anger, Notorious RBG co-author Shana Knizhnik launched a tumblr by the same name, which humorously likened the diminutive Ginsburg to the swaggering rap star Notorious B.I.G.

In the coming months, Knizhnik’s tumblr would feature tributes to Ginsburg ranging from Valentines to Halloween costumes to infants dressed as “Ruth Baby Ginsburg.”

Shelby County, however, was not an isolated case. It was one of a series of cases, on topics ranging from pay discrimination to abortion to birth control, where Ginsburg penned strongly worded dissents. Ginsburg is an icon, but she is an icon of defiance standing against a tide of conservatism. In her ninth decade of life, Notorious RBG paints her as a woman who is unbowed and determined to maintain her vigil, but also uncertain how she can stand against the tide.

“Anger, resentment, envy. These are emotions that just sap your energy.” Notorious RBG quotes Ginsburg as saying in an unusually Yoda-like moment. She believes that she has achieved what she has accomplished because she fights “in a way that will lead others to join you.” Justice Ginsburg’s belief that erroneous thinking can be cured through persuasion defines her career as a judge. For this reason, her mere willingness to show her anger in dissenting opinions is both an expression of despair and a warning that one of the nation’s most able minds has run out of tools to turn back the tide. As Knizhnik’s co-author Irin Carmon writes in the New York Times, Ginsburg will turn only to overt anger after she has “tried everything else.”

The tide of conservatism is still coming, and the Notorious RBG has tried everything she knows to stop it.

The Exemplar

Part biography, part celebration of the justice’s new status as icon, Notorious RBG is self-conscious hagiography. It draws upon both research and original reporting to offer a kind of liberal book of virtues, with Ginsburg’s life playing the role of an extended fable. Ruth Bader Ginsburg’s life is the Life Well Lived, and she serves as an exemplar that readers can aspire to emulate.

Justice Ginsburg is a workhorse. She brings briefs with her to the golf course so that she can prepare herself for arguments between strokes. She’s never missed a day on the bench, despite two bouts with cancer and permanent bruises from chemotherapy. And she works hours that would exhaust people a quarter of her age. In a tribute marking Ginsburg’s fifteenth year on the Court, Chief Justice John Roberts praised Ginsburg for her “work ethic, intellectual rigor, precision with words and total disregard for the normal day-night work schedule adhered to by everyone else since the beginning of recorded history.”

Justice Ginsburg is a feminist. She ushered in an era of constitutional equality for women. Yet her feminism manifests as much in intimate family moments as it does in the workplace. Her favorite former client is Stephen Wiesenfeld, a stay-at-home father who successfully sued after he was denied widowers benefits he would have received if he were a wife that lost her husband. Her late husband Marty was a true partner who always viewed her as an equal. When Marty was diagnosed with testicular cancer while still a law student, Ruth kept him abreast of his studies and made sure that he had notes from classmates. After Ruth received a “good job in Washington” — her appointment to the federal bench — Marty left his own job in New York to be with his wife. And, in keeping with the theme that Ruth Bader Ginsburg’s life is the good life, the Ginsburgs were rewarded in their feminist marriage. Marty, a tax attorney who grew fantastically rich in his law practice, was a giant in his chosen field just as much as Ginsburg is a giant in hers.

Above all, Justice Ginsburg is ambitious, and her ambitions reached beyond her to transform the nation. Ginsburg describes her mother, Celia Amster Bader, as the smartest person she ever knew. Nevertheless, no one outside the Bader household had much opportunity to learn this fact. Born at the wrong time, Celia married a fur trader who found there was little market for luxurious clothing during the Great Depression. Though Celia graduated at the top of her high school class, she never went to college and stopped working once she was wed. Young Ruth grew up watching her mother’s talents wasted by an America that still viewed women as little more than an afterthought.

That America no longer exists, and it does not exist in no small part because of Ruth Bader Ginsburg. In less than a decade of litigation, Ginsburg convinced the Supreme Court that the Constitution’s promise that no one may be denied “the equal protection of the laws” applies to gender discrimination, and then she convinced the justices to treat all laws that engage in sex stereotyping with a great deal of scrutiny.

Indeed, Ginsburg’s quest to tear down antiquated gender roles penetrated so deeply into American law that she eventually won the support of Chief Justice William Rehnquist, a conservative who once bragged that “my wife became resigned long ago to the idea that she married a male chauvinist pig.” In a 2002 opinion, Rehnquist wrote that it is the proper role of the law — even in the face of state’s rights concerns that Rehnquist typically found persuasive — to tear down “stereotypes about women’s domestic roles” that are often “reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men.”

The Radical Century

Notorious RBG leaves the reader with the impression that Ginsburg was successful because she did not ask for too much too quickly, and, indeed, it quotes the justice saying as much. “Generally change in our society is incremental,” according to Ginsburg. “Real change, enduring change, happens one step at a time.”

It is true that Ginsburg did not try to win in a single sweeping victory the kind of radical change that is more easily achieved through several smaller court victories. This is a common tactic preferred by many historic Supreme Court litigators. Gay rights litigators sought the right to have sex without facing criminal charges before they sought the right to marry. Future Justice Thurgood Marshall, arguably the greatest lawyer in American history, convinced the Supreme Court to desegregate law schools before he attempted to desegregate grade schools.

Nevertheless, viewed over the length of American history, the pace of Attorney Ginsburg’s victories before the Supreme Court was simply extraordinary. Prior to the Court’s 1971 decision in Reed v. Reed, a case that Ginsburg briefed, the Supreme Court had never held that the Constitution limits gender discrimination. In 1980, Ginsburg was appointed to the federal bench. She achieved all of her most significant litigation victories in the nine years in between.

Imagine being Celia Bader on the day her daughter was born in 1933. Or imagine being black or gay or poor — or all three — on this same day. The world we live in today remains deeply flawed. Women, on average, still only earn about 78 percent of what men earn in the workplace. High income earners enjoy big annual raises, while the rest of the nation is left behind. Black lives matter, but in the heat of an encounter between African Americans and the police, that fact is too often forgotten.

Nevertheless, if Celia Bader, who died the day before her daughter graduated from high school, awoke tomorrow to find herself in modern day America, she would no doubt find the world Justice Ginsburg helped build miraculous. Three women sit on the Supreme Court. Jim Crow segregation is dead. Same-sex couples may marry. Social Security lifts 20 million Americans out of poverty. Medicare, Medicaid, CHIP and the Affordable Care Act save tens of thousands of lives every year and rescue millions more from economic destitution. In a little over a year, a black man may pack his things and leave the Oval Office — to be replaced by a woman.

Ruth Bader Ginsburg lived to see all of this change happen, and she played a part in much of it. But she also lived to see something else. From the New Deal through Obamacare, victories built upon victories in a virtuous cycle welcoming more and more Americans into the halls of opportunity. Supreme Court decisions upholding the right to unionize laid the legal foundation for laws banning private discrimination by hotels, lunch counters and employers. Sexual liberation gained in the middle of the twentieth century laid the groundwork for broader acceptance of LGBT Americans in the twentieth-first century. Ginsburg’s own victories over gender discrimination built upon Thurgood Marshall’s work breathing real life into the Constitution’s promise of equal protection.

Americans today live in an edifice of freedom, equality and affluence that did not exist when Justice Ginsburg was born. It was built, laying brick on top of brick, over the course of Ginsburg’s lifetime.

Nostalgia

And yet, as Ginsburg enters the twilight of her life, the machines that built this edifice rust and lay dormant. A year ago, in response to a question about why she does not resign to allow President Obama to choose her successor, Ginsburg pointed to a Senate that can no longer perform basic tasks. “Who do you think President Obama could appoint at this very day, given the boundaries that we have?” Ginsburg asked in response to the question, adding that “if I resign any time this year, he could not successfully appoint anyone I would like to see in the court.”

Congress, in Ginsburg’s understated words, is “not functioning well.”

Justice Ginsburg’s life stands for many things. It stands for tenacity, feminism and ambition. But, above all, the woman described in Notorious RBG stands for possibility. This is someone who saw the wasteful life her mother endured and vowed to free women from that existence — and then she did it. Just as importantly, Justice Ginsburg had every reason to believe that massive change was possible because she had seen it happen so many times before.

The reverence that fuels Ginsburg’s celebrity is rooted in anger at her conservative colleagues, but I suspect it is also rooted in something else — longing for the sense of possibility that drove Ginsburg’s career. Notorious RBG does more than chronicle one woman’s life, it chronicles a time when Americans slayed dragons.

The generation of Americans who use Tumblr and who generate online memes justifiably fear that they no longer live in such a time. Is it any wonder why they find Justice Ginsburg’s life so appealing?