‘Notorious RBG’ will be remembered for victories that are yet to come
I hear that Ruth Bader Ginsburg’s lawclerks had to explain to her that her increasingly popular nickname, “Notorious RBG,” was a compliment.
Iwish I could have been a fly on the wall as they explained the nickname’s origin in TheNotorious B.I.G., the late “gangsta rap” superstar born ChristopherGeorge LatoreWallace, aka Biggie Smalls.
Happily, I hear that shewas tickled to learn about her fellowNew Yorker, even though I’m sure she didn’t go to lawschool dreaming about fame as a pop culture icon.
Yet, an icon she became. Her legal and judicial stardom fascinated us enough to bring stardom, particularly in liberal circles, that broke cultural and generational boundaries famously enough to be glorified in books, movies, T-shirts, coffee mugs, dolls and “SNL” sketches.
Formany of us whowere plunged into sorrowbyGinsburg’s death Friday at age 87, the “Notorious” seemed piquantly appropriate, ironic praise fromher fans and vilification from her adversaries.
Shewas famous and formidable in the nice or the not-so-nice sense, depending on which side of her legal arguments youwere on.
Yet she also famously became half ofWashington’s oddest couple with her ideological opposite Justice Antonin Scalia, known for being no less conservative than shewas liberal.
Until his death, their bonding agent was their shared love for opera, a love thatwas intense enough to be celebrated in a 2015 comic opera “Scalia v. Ginsburg,” sometimes known as “Scalia/Ginsburg.”
“For Ginsburg, who has been outnumbered throughout her career,” wrote Irin Carmon, co-author of “Notorious RBG: The Life and Times of Ruth Bader Ginsburg,” “itwas also about making the institutionwork, no matter their disagreements.”
As opposing partisan sides sharpen their knives for new battles in the wake of her death, Justice Ginsburg’s successful approach to that mighty task of making the courtswork offers valuable lessons for the future.
For example, revisiting Ginsburg’s views has disabused me of the popular notion that shewas towomen’s rights what ThurgoodMarshall, a pioneer civil rights lawyer who became the high court’s first black justice, was to the rights of people of color.
“WhenMarshallwas in a Southern town, he didn’t knowif hewould be alive at the end of the day,” Ginsburg said in a 2017 speech. “My lifewas never in danger, so there’s an enormous difference.”
However, Ginsburg said, Marshall did have “a winning technique, and we copied it” when she led theWomen’s Rights Project of the American Civil LibertiesUnion. This technique involved, she said, “leading the court where youwant to go, not with giant steps but taking things one step at a time.”
Instead of directly attacking the 1896 “separate but equal” doctrine from the case of Plessy v. Ferguson as unjust in upholding the constitutionality of racial segregation, Ginsburg pointed out, Marshallwaited almost 20 years for the right case in which to argue that separate facilities were simply unequal.
After “building blocks” such as his successful challenge to segregated law schools inMaryland, Marshall successfullywon the high court’s landmark Brown v. Board of Education decision that separate educational facilities are “inherently unequal.”
In arguing against gender discrimination before the all-male Supreme Court, Ginsburg borrowedMarshall’s technique of incremental “building blocks,” she said. She focused first on howgender discrimination hurt men.
She found a good example inWeinberger v. Wiesenfeld, representing a widower who challenged a Social Security Act provision that allowed widows but not widowers to collect special benefits for the care of minor children.
As a result, Ginsburg argued, the Social Security provisions discriminated against men acting as caregivers and men acting as breadwinners. Eight justices voted in favor of the father with one abstaining.
As part of the Supreme Court’s four-member liberalwing, as The NewYork Times’ Adam Liptak writes, “she did her mostmemorablework in dissent.” Yet, dissents sometimes prevail when reintroduced years or decades later when the social and political landscape has changed.
With that in mind, the “Notorious RBG” maywell be remembered like Marshall, as a justice whose legacy of ideasmeans as much as the laws she helped to change. For every case she couldn’t win, she prepared theway for those who can.