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