The 'Notorious RBG' and her triumph over tribalism

20 September 2020

1:16 AM

20 September 2020

1:16 AM

Ruth the Moabite is the only Biblical figure to merit the description ‘eshet chayil’ – ‘a woman of valour’. One rabbinical exegesis sees Proverbs 31’s womanly virtues as a reference to Ruth: ‘Many women have done well, but you surpass them all.’ Ruth Bader Ginsburg, who died aged 87 on Erev Rosh Hashanah, surpassed the expectations and limitations placed on women who came before her. But she did more than that: the Brooklyn-born lawyer fundamentally transformed the role of women in law and changed the law on women’s roles.

Only the second woman appointed to the Supreme Court of the United States, she authored the majority opinion in cases such as United States v. Virginia (male-only admissions policies violate the Fourteenth Amendment), Olmstead v. LC (institutionalisation of the mentally disabled is illegal if community placement is possible) and Timbs v. Indiana (the Eighth Amendment’s prohibition on excessive fines applies to the states as well as the federal government). Like the Biblical Ruth, her mouth was full of wisdom and her tongue with kindly teaching, but she was no pushover. In oral argument, she was always one step ahead of her colleagues and a dozen ahead of counsel, and her fierce, rigorous dissents – on abortion restrictions, equal pay, and procedural rights – have become standard texts in law schools.

To become a lawyer, let alone one of the most celebrated jurists in the world, she had to overcome and then topple the hurdles put in women’s way. When she was accepted to Harvard Law School in 1956, the dean asked her to justify taking a place that could have gone to a man. When she graduated first in her class (from Columbia), she could find no law firm that would hire nor judge prepared to grant a clerkship to a woman, and only secured the latter through the intervention of an old professor. She later pursued a career in academia, becoming – among other things – an expert on civil procedure, even learning Swedish so she could study their system too.

But it was in women’s equality and sex discrimination that she pioneered new ways of thinking and reshaped the law for changing times. In 1972, she became the first female professor to gain tenure at Columbia and, as director of the ACLU’s Women’s Rights Project, argued her first case before the Supreme Court. In what would become a hallmark of her approach to sex discrimination, she contended that a law treating military wives as dependents discriminated against men because those married to a female service personnel were denied the dependent’s allowance paid to women. She was in large part responsible for embedding the view that sex discrimination harms men as well as women. Her beloved husband Marty, a tax law specialist who predeceased her by a decade, supported her career even as it came to eclipse his.

On the DC Circuit and later the Supreme Court, Ginsburg was an especially fast friend of the First, Fourth and Eighth Amendments, a critic of the death penalty, and an advocate for US judges taking international and foreign law into consideration. Her constitutional jurisprudence was evolutionist but she was a stickler for precedent and sometimes a progressive voice for judicial restraint, most famously in her critiques of Roe v. Wade, the 1973 decision that stumbled across a right to abortion hidden in the Fourteenth Amendment. Ginsburg was an implacable supporter of abortion rights – becoming the first Supreme Court nominee to affirm that position in her confirmation hearing – but she lamented the Roe court’s decision ‘to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force’. Had the Court merely struck down the Texas statute at issue, rather than producing such a sweeping opinion, it ‘might have served to reduce rather than to fuel controversy’.

While she was a hate-figure for some on the right, to progressives and millennials she was ‘the Notorious RBG’ and inspired a line of unofficial merchandise, memes and even a Hollywood biopic. Not all conservatives reviled her. Her late colleague Antonin Scalia, a giant of the legal right, hymned her abilities as a jurist even as they dissented vigorously from each other’s opinions. They frequented the opera together, Scalia sent her roses on her birthday and their families shared holidays, leading to a famous snapshot of the two riding an elephant in India. Scalia was not the only right-winger dazzled by her legal abilities and personal qualities. She was nominated to the Supreme Court by Bill Clinton on the recommendation of Republican Senator Orrin Hatch, an uber-conservative even by Utah standards. Her brilliance trumped dreary tribalism, which is as it should be.

Should be, but is not. The reckoning with her death will bear no relation to the dignity with which she lived her life. The all-out Armageddon over when, by whom and with whom her seat on the Court will be filled will be uglier than any Supreme Court battle yet seen. This is what happens when the highest court in the land becomes a supreme parliament, revising a ‘living Constitution’ so alive as to be positively hyperactive. If President Trump manages to replace Ginsburg with an originalist jurist, such as Seventh Circuit judge Amy Coney Barrett, it will solidify the ‘conservative’ majority on the bench for years to come. Were Trump to lose in November, the right would still have won the war. Until the federal judiciary returns to its proper, constitutional role, these will be the terms on which politics interacts with the courts.

Ruth Bader Ginsburg was an icon and an ideal. She inspired admiration and animus for her unique caste of mind and a facility for legal analysis and interpretation that could bring down adamantine edifices with just a few questions. Even as the body grew frail, her mind remained a prize-fighter. She was the first Jewish woman to reach the Supreme Court and credited her cultural heritage for its emphasis on justice. In her chambers hung a Hebrew verse from Devarim (Deuteronomy): ‘Tzedek, tzedek tirdof’ – ‘Justice, justice you shall pursue’. The time for politics will come but for now Justice Ginsburg, eshet chayil, should be remembered as Scripture instructs: ‘Extol her for the fruit of her hand, and let her works praise her in the gates.’

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