For the Jewish Women’s Archive (and along with my friends Dahlia Lithwick, Nikki Horberg Decter, and Martha Minow, with thanks to Judith Rosenbaum), here:
It may be hard to remember or imagine, but when I was a college student and a law student in the 1990s, Justice Ruth Bader Ginsburg introduced herself to the world as a moderate incrementalist. We were taught how her groundbreaking litigation strategy, for the ACLU’s Women’s Rights Project which she founded in 1972, succeeded precisely because it was so cautious and incrementalist. Her strategy was first to take men’s cases for sex discrimination: men who were denied benefits that were reserved for women as caregivers or widows, for men who had later drinking ages, men who had mandatory jury duty while women’s jury duty was only voluntary. Between 1973 and 1976, she argued six gender discrimination cases before the Supreme Court, and she won five. She savvily attacked gender stereotypes when they benefited women to lay the constitutional groundwork for challenging all sex stereotypes. It was carefully and quietly brilliant, like her.
After President Carter named her to the DC Court of Appeals, she continued to make her mark as a moderate. In law school, we were taught to appreciate her balance, her moderation, her incrementalism, her view of trusting democracy over judicial activism. As a moderate liberal who shied away from the scary label “feminist” in the “Backlash” 1990s, I appreciated Justice Ginsburg.
But then something happened around 2000. First, Bush v. Gore. She called out the hypocrisy of the Court’s ostensible federalists, who ordinarily defer to state governments, but not here: “Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.” While colleagues wrote they dissented “respectfully,” as Ginsburg usually did, too, she concluded with only: “I dissent.”
Then the Court turned further right over the next decade. The quiet and moderate Justice Ginsburg dissented more, and more forcefully and eloquently. There are many examples, but here is my favorite, in arguably the worst decision of the Roberts Court, striking down a key part of the Voting Rights Act of 1965 based on absurd reasoning and remarkable factual and demographic errors: “The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective,” Ginsburg wrote. “Throwing out pre-clearance [review of states’ changes by the Department of Justice] 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.”
The Roberts Court has systematically undermined voting rights, and Ginsburg was right: We are now in a storm of anti-democratic attacks. And it was in this storm that the quiet moderate Justice Ginsburg became the Notorious RBG. I did not always agree with her, but I changed from appreciating her to loving her as a hero. I look back at how I—and many of us—changed along with her, from patient moderates in the 1980s and 1990s to more outspoken, fierce, dissenters and resisters today. In the decades RBG became a feminist icon, I became more proudly a self-identified feminist. On some level, there was a connection. RBG dissented for all of us when she had a voice that many of us felt we had been losing.
The last thing I’ll share is a defense of her retirement timing. Many liberals have criticized her decision not to retire under President Obama while the Democrats had a narrow Senate majority. First, I’d note that few people criticized men on the Court the same age for not retiring, even though women have a longer life expectancy. Second, it’s easy to forget the politics of 2012–2014. President Obama was running for re-election as a cautious moderate, adding names to his judicial shortlist from conservative states and with no record on women’s rights. Ginsburg knew how to recognize such moderation from her own life, and she would have been understandably cautious. The Democrats’ Senate majority remained narrow in 2013–14, and it was apparent that the decisive conservative Democrats wanted a moderate without a clear record on Roe. If Ginsburg cared more about her life’s work, her passion for women’s rights more than simply getting a “Democrat” on the Court, can she really be blamed? But finally, the critique is unfair in a time of partisanship. Yes, conservative Justices have been better, and luckier, at timing their retirements in obviously partisan ways, eroding the legitimacy of the Supreme Court.
One can argue that if she were more partisan, she should have retired earlier. But we should at least take a step back, be as generous to her as she was to all of us with her life of public service, and appreciate that she was more than just a partisan, that she believed her life, the law, and perhaps judicial legitimacy was something bigger than party politics. Maybe she was right, maybe she was wrong, but she was Notoriously, gloriously independent. Thank you, Ruth.