My View: The Death of an Icon and the Legacy of Ruth Bader Ginsburg

by David M. Greenwald

I was debating last night—do I write on Ginsburg?  And if so what do I say?  Given that the political fight of all fights is developing before her body was even cold, there will be plenty of time for that discussion.

Ruth Bader Ginsburg dies as an icon to the liberal wing of this country (as opposed to the center-left wing and the progressive wing).  In fact, I would argue the two biggest icons of the liberal wing of this country have died in recent months—John Lewis and now Ruth Bader Ginsburg.

The two share a lot in common—both were trailblazers in their own rights, but really became icons (despite their early accomplishments) in the last decade of their lives.  John Lewis was actually a fairly obscure figure despite his role in Selma on the bridge, up until his last decade or so.  You could argue the same for Ginsburg.

Ginsburg is another reminder that you never know what you are going to get when someone is appointed to the Supreme Court.  It is easy to forget that her appointment made liberals at the time uneasy.  She was reluctant on, for example, Roe v. Wade, and still believes that the court went too far on that case and handed the right a powerful weapon.

In 1993, the left had the recently departed legacy of William Brennan and Thurgood Marshall, the last remnants of the Warren Court who largely were relegated to dissents in the increasingly conservative Rehnquist Court.  Further in the rear view were the giants—Earl Warren himself, Hugo Black and William O. Douglas.

In most ways, Ginsburg will never reach that pantheon, as the Warren Court remade America on civil rights, free speech, the rights of the accused.  Perhaps Ginsburg’s legacy will largely come down to being on the short-side of 5-4 decisions punctuated by occasional cases where a Kennedy or Roberts broke with their conservative wing to eke out a 5-4 narrow ruling.

But that bland description hardly does her legacy justice.

The Christian Science Monitor writes: “Piece by piece, case by case, she helped dismantle and rebuild for the better the ways women work, are paid, acquire responsibility, and participate in American political and economic society.  In doing so Justice Ginsburg became an icon of achievement.”

They note: “Rare is the Supreme Court justice able to create a distinct legacy. Rarer still is the justice able to create a distinct legacy, shape an entire area of the law, and become a pop culture icon recognized around the country: the fiery, jabot-wearing Notorious R.B.G.”

Perhaps recognizing the moment was Chief Justice Roberts who said: “Our nation has lost a jurist of historic stature.  We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.”

During a time when our nation is as polarized as it has ever been in its history, those are moving words.

“There are only a few modern justices who would have been significant figures in American law even if they had never served on the Supreme Court,” said Richard Primus, a professor at the University of Michigan Law School and a former Ginsburg clerk, in an email to the Monitor. “Ruth Bader Ginsburg is one.”

But it was in dissent that perhaps she earned the strongest reputation.

In the 2007 Ledbetter Court decision, on the short side of a 5-4 ruling, she criticized the majority for “a cramped interpretation of Title VII” and suggested that Congress “may act to correct this Court’s parsimonious reading of Title VII.”  Congress would pass the Lilly Ledbetter Fair Pay Act in 2009.

In 2013, on the short side of a 5-4 decision in the Hobby Lobby case, she said that “the court, I fear, has ventured into a minefield.”  And in the Shelby decision which invalidated a portion of the Voting Rights Act, she wrote that throwing out pre-clearance “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Ginsburg made her mark as a litigator for women’s rights well before she was ever named to the Supreme Court.  She did some of her most significant law work at Columbia and then spent eight years as general counsel of the Women’s Rights Project at the ACLU.

“Ginsburg’s goal was not merely formal equality. Her goal was a society in which women could gain access to roles traditionally reserved for men, and men could gain access to roles traditionally reserved for women,” writes Professor Williams. “We can see her as perhaps the first reconstructive feminist.”

Justice Scalia praised her as “the leading litigator on behalf of women’s rights – the Thurgood Marshall of that cause, so to speak.”  That was not a comparison that made her comfortable—and while perhaps apt in terms of achievement, she noted that the context was far different.  “My life was not in danger, as his was,” she told CBS in 2017.

Kamala Harris wrote: “For all who believe in the power of the law as a force for change, Justice Ginsburg was and will always be a titan.”  She said, “She was a relentless defender of justice in our country and a legal mind for the ages.”

Justice Ginsburg, Harris wrote, was known to pose the question, “What is the difference between a bookkeeper in the Garment District and a Supreme Court justice?”

Ginsburg’s answer: “One generation.”

Writes Harris, “She never forgot where she came from, or those who sacrificed to help her grow into the historic icon we all came to revere.”

Rest in Power, Ruth Bader Ginsburg, and L’shana Tova.

—David M. Greenwald reporting

 

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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36 Comments

  1. Tia Will

    Although you skirted the edges of it several times. For many women of my generation, it was RBG’s lived experience itself that was of the greatest value. Through her intelligence, devotion to justice, exemplary work ethic, and determination, she showed us again and again what was possible, not only for her but for us. I will miss her.

  2. Bill Marshall

    If POTUS nominates ANYONE before RBG has her funeral/memorial services, he’d be a true cad.  [Dancing on a grave, so to speak]

    Wonder if he will even authorize/order Federal installations to fly the flag @ half staff, in accordance with the ‘Flag Code’… we’ll see… he didn’t with McCain… under the pressure was too great, from both sides of the aisle.

    But, whatever in takes to win in November, right?

    1. Alan Miller

      Wonder if he will even authorize/order Federal installations to fly the flag @ half staff,

      Or, possibly, NO, could it be? . . .

      Trump Gives Classy Statement On Ginsburg’s Passing, Avoids Politics Unlike Top Democrats

      https://www.dailywire.com/news/trump-gives-classy-statement-on-ginsburgs-passing-avoids-politics-unlike-top-democrats?itm_source=parsely-api?utm_source=cnemail&utm_medium=email&utm_content=091920-news&utm_campaign=position5

      Hold me closer, tiny dancer!
       

      1. David Greenwald

        That’s kind of a misleading headline – he also stated flat out that he expects there to be a vote on his nominee. So the idea that he avoided politics, is silly.

    1. David Greenwald

      They aren’t going to give the Kavanaugh treatment. They are going to block the appointment on principle until after the election and if they fail, the person will get confirmed.

    2. Eric Gelber

      She’s going to be tough for the Democrats to give the Kavanaugh treatment to so close to the election because she’s both a woman and Latino.

      The Kavanaugh treatment? Are you saying she also sexually molested someone in college?

        1. Keith Olsen

          It could also mean using a fake Russian dossier to investigate a president or impeaching a president using an anonymous source pushed through the Democrat “majoritarian” House of Reps.

  3. Don Shor

     and if they fail, the person will get confirmed.

    And then the court will be expanded once Democrats control the Senate, House, and presidency. There is nothing sacrosanct about a 9-member Supreme Court and it can be expanded simply by passing a law. Brinkmanship has consequences.

    1. Keith Olsen

      And then the court will be expanded once Democrats control the Senate, House, and presidency. There is nothing sacrosanct about a 9-member Supreme Court and it can be expanded simply by passing a law. Brinkmanship has consequences.

      So whenever a party is in control they will simply add more members to the SCOTUS in order to gain control?  I can see it now, 40 years from now the SCOTUS will have 23 justices.

      1. David Greenwald

        The problem that you have is that four years ago – the Republicans refused to move a nomination to a vote reasoning that the next president should pick it. Now the same Republicans are bent on getting their nominee through. What is your proposed remedy to this? Might makes right? That’s the Republican position – if unstated at this point. And that gets to the next card which is expanding the size of the court. Is any of this making sense? I want to hear your solution.

        1. Keith Olsen

          Might makes right? 

          Like when Harry Reid changed the rules on selecting judges where it only took 51 votes in the Senate?

          I remember telling you that would come back to bite Democrats in the behind. The chickens have come home to roost.

          Quit acting like Democrats are getting unfairly treated when they dish out their share too.

          The difference now from when Obama nominated Garland is the Democrats didn’t control the Senate as The GOP does now.  Elections have consequences.

          1. David Greenwald

            I’m not acting like anything. I posed the problem and where things will head under certain circumstances. I asked for your suggested solution. If your solution is elections have consequences, that’s fine. But then we end up with a majoritarian court that gets expanded each time the ruling party has enough votes to do so. If that’s not what you want – I invite you to be constructive rather than taking pot shots.

        2. Eric Gelber

          The difference now from when Obama nominated Garland is the Democrats didn’t control the Senate as The GOP does now.

          Right. You’ve identified the source of GOP hypocrisy, not a justification.

        3. Keith Olsen

          But then we end up with a majoritarian court that gets expanded each time the ruling party has enough votes to do so. 

          Only if the Democrats open up that can of worms.  It’s all on them.

          1. David Greenwald

            That’s a partisan take. The can of worms started when the Republicans in 2016 said one thing and then did the exact opposite four years later. You naively expect that to not have consequences. You’re smarter than this. What’s your solution other than brinksmanship? Do you have one? Or do you care?

        4. Keith Olsen

          Right. You’ve identified the source of GOP hypocrisy, not a justification.

          Not at all because if the Democrats had controlled the Senate we would now have a Supreme Court Justice Garland.

          An you know that if the tables were now turned and we had a Dem president and a Dem controlled Senate that they would be ramming through their nominee.

          I say the GOP needs to go through with this and their base supports them.

          1. David Greenwald

            They will go through this then. And we will end up where we end up – I hope you enjoy a majoritarian Supreme Court.

        5. Keith Olsen

          I hope you enjoy a majoritarian Supreme Court.

          That’s how it works my friend.  It’s not like the four liberal justices ever break rank or always vote by rule of law.  In fact it’s usually a conservative judge who will often jump sides.

          But nothing is in the bag, there are a few GOP Senators who might not be on board. Stay tuned!

  4. Keith Olsen

    It’s not unprecedented for a Supreme Court Justice to get approved in less than 45 days:

    According to Senate records, Justices Ginsburg, John Paul Stevens, and Sandra Day O’Connor were all confirmed in a short period of time. Stevens’s confirmation in 1975 took 19 days, O’Connor’s confirmation in 1981 took 33 days, and Ginsburg’s confirmation in 1993 took 42 days.

    https://thefederalist.com/2020/09/18/three-supreme-court-justices-were-confirmed-in-less-than-45-days-including-ginsburg/?fbclid=IwAR0q4U_xFss9K7zsE5hq0kaWqx-xuvfhepcWSexVeVFP619dORxH-St7-Vs#.X2eo-Xpkw0c.facebook

    1. Matt Williams

      The Ginsburg vote for confirmation was 96-3 in 1993, year one of Clinton’s term of office

      The Stevens vote for confirmation was 98-0 in 1975, year two of Ford’s term of office

      The O’Connor vote for confirmation was 98-0 in 1981, year one of Reagan’s term of office

      When a candidate earns that kind of bi-partisan support, it is not very hard to understand why their confirmation went quickly, especially when their nomination is early in the Presidential term of office.

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