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Ruth Bader Ginsburg: Small, Mighty, Relentless, and Unforgiving

The late justice’s legacy is bigger than just her monumental work on the Supreme Court.

September 19, 2020
RBG
Nikki Kahn/The Washington Post via Getty Images

The first thing to say about Ruth Bader Gins­burg, whether you agreed with her juris­pru­dence or not, is that she was a mensch, a good person, a person of notable compas­sion and empathy. Infused with honor and integ­rity, over­flow­ing with wit and wisdom, she was never afraid to mix things up on behalf of the under­dogs in Amer­ican life. A little old Jewish lady from Brook­lyn, who grows up to be Notori­ous RBG, is an epic Amer­ican story, right? She also was a power­ful judge who appre­ci­ated the few who helped her make her way and then paid it back to so many whom she was able to help make their own ways as tribunes of the law. 

On and off the Supreme Court, Gins­burg used her bril­liant mind and judi­cious tempera­ment to fight on behalf of women who were discrim­in­ated against, people of color whose votes were suppressed, employ­ees abused by their bosses, gay and lesbian people punished by bigots, and defend­ants denied due process and equal protec­tion. And, as Dahlia Lith­wick points out, she did all this, espe­cially in the last third of her life, after arriv­ing on the Court imbued with some skep­ti­cism from women’s rights advoc­ates who felt she was too conser­vat­ive or incre­mental for their liking .Imagine that. Amer­ica changed. She changed. And here we are. 

That Gins­burg died of complic­a­tions from cancer on the eve of Rosh Hasha­nah, the Jewish New Year, when the prover­bial Book of Life is said to be opened, gives her remark­able life and sudden death a fitting coda. But it makes the loss no less sorrow­ful and stun­ning for those she leaves behind. A person who dies on Rosh Hasha­nah is a tzad­dik, a person of great right­eous­ness, tweeted Ruth Frank­lin, a writer and expert on Jewish liter­at­ure. Fitting, since Gins­burg was a person of faith who believed in the concept of tikkun olam, the act of heal­ing the whole world through the pursuit of justice. This will be one of the ways in which she will be remembered long after the firestorm her death causes burns itself out. 

She stayed years too late, many felt, and now she’s gone months too early. Surely the late Justice Antonin Scalia would have said so himself, were he still alive. Their famous friend­ship, which tran­scen­ded bitter ideo­lo­gical divides, seems so quaint today. And so ironic. The polit­ical fight over Scali­a’s seat in 2016 will directly influ­ence the grim, loom­ing fight over Gins­bur­g’s seat, mean­ing the two old friends and opera aficion­ados will forever be linked in history as examples of the raging divi­sion that marks our polit­ics today. I suspect the fight over Gins­bur­g’s seat will make the 2016 fight over Scali­a’s seat seem tame.

But there will be plenty of time to fight over polit­ics. Plenty of time for hoary quotes from members of the Senate Judi­ciary Commit­tee. Plenty of time to gauge the calcu­lus of what this blow means for the future of repro­duct­ive rights. Today we should pause and real­ize that Gins­bur­g’s death is a land­mark moment in the history of women in Amer­ica. So many today are lawyers and judges and corpor­ate coun­sel, so many have obtained polit­ical office, so many devote their lives to fight­ing discrim­in­a­tion in all its forms, because of the stir­ring example Gins­burg set during her long career in public service. She was a trail­blazer, an inspir­a­tion, just like Sandra Day O’Con­nor, her prede­cessor on the Supreme Court, who also over­came the rampant and overt gender discrim­in­a­tion that marked that era of Amer­ican law. 

But even if Gins­burg had not been nomin­ated for the Court by Pres­id­ent Bill Clin­ton at age 60 after spend­ing 13 years on a federal appeals court, even if she had not spent the better part of the past three decades fight­ing back against the Supreme Court’s steady turn toward the right, history would remem­ber Gins­burg as a profound figure in the history of gender discrim­in­a­tion law. As an advoc­ate for the Amer­ican Civil Liber­ties Union, she was a bril­liant legal tacti­cian and strategist, a lawyer who conceived and then artic­u­lated new consti­tu­tional concepts and doctrines that later found their way into the body of our laws. She did this in confer­ence rooms and court­houses in hundreds of cases that, drop by drop, changed the way the law saw women and women saw the law. It is no over­state­ment to say that all of this made her an icon of the women’s rights move­ment.

I covered the Supreme Court from 1997 to 2018, through the good times for Justice Gins­burg, which were few and far between, and the bad times, which grew increas­ingly frequent as the Court tacked ever right­ward. Many say she became more liberal as the years went on. Maybe so. That’s not an uncom­mon theme in Supreme Court history. But it’s import­ant to remem­ber today that Gins­burg never sat on a Court in which Demo­cratic appointees outnumbered their Repub­lican coun­ter­parts. She sat instead on a Court that today is the most conser­vat­ive it’s been in nearly a century. So she was always in the minor­ity in that sense, always fight­ing to try to lessen the harsh impact of the major­ity’s rule, always trying to make the law more fair and just for women and others.

I remem­ber the soft, polite voice bely­ing the steely mind. I remem­ber the preci­sion with which she bored in on lawyers during oral argu­ment — she got to the point imme­di­ately, unlike some of her colleagues — but what strikes me today is what a good and depend­able writer she was. In Decem­ber 2000, amid the post-elec­tion chaos, I remem­ber seek­ing out and read­ing her dissent in Bush v. Gore, the decision that handed the pres­id­ency to George W. Bush. It was, in the heat of the moment, with all the cameras on, the best and fast­est way to under­stand the sleight of hand the Court’s Repub­lican appointees pulled to put their man in the White House.

The same thing happened 13 years later. It was left to Gins­burg, by then clearly the leader of the Court’s progress­ive wing, to expose the hypo­crisy of the Court’s conser­vat­ives in Shelby County v. Holder, their ruling gutting the Voting Rights Act, one of the most lament­able decisions in the history of the Court. The issue in the case was a “preclear­ance” provi­sion requir­ing local offi­cials to have their voting laws vetted for racial discrim­in­a­tion by the Justice Depart­ment. “Throw­ing out preclear­ance when it has worked and is continu­ing to work to stop discrim­in­at­ory changes is like throw­ing away your umbrella in a rain­storm because you are not getting wet,” she wrote. A perfect meta­phor to shame the Court’s major­ity.

Stop watch­ing tele­vi­sion for a few hours. Stop griev­ing for a moment. If you want to under­stand and absorb what Ruth Bader Gins­burg meant to Amer­ica, and to the law, and to women, and to the notion of tikkun olam, read her concur­rence (and a tran­script of the oral argu­ment) in Safford Unified School District v. Redding, a 2009 case about the strip-search of a 13-year-old middle school girl. Read Gins­bur­g’s dissent in Ledbet­ter v. Goodyear Tire, the 2007 case about gender discrim­in­a­tion in the work­place that was so appalling it ulti­mately gener­ated a federal law over­turn­ing it. Read these and real­ize that there were hundreds of other decisions, over decades, in which Gins­burg stood up right­eously to the bullies in our midst. Notori­ous, indeed.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.