Honor RBG first — politics later
A real-life hero, she shattered ceilings and blazed a trail for women and equality.
There will be time. Time to weigh the enormous social and political implications of a remarkable woman’s passing. Time to plot strategy. Time to calculate the political advantage, and disadvantage, that her death opens up. There will be time.
But surely, surely, Ruth Bader Ginsburg deserves a moment — at least a moment — when an anxious nation facing a momentous election turns aside from scheming politics, partisan maneuvering and coldblooded calculation to salute a profoundly notable human being, a trailblazer and role model, a pioneer who changed this great nation for the better.
Chief Justice John Roberts Jr., in a statement, called her “a tireless and resolute champion of justice.” She was, indeed.
“Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law,” historian Jill Lepore wrote in The New Yorker.
It’s telling, perhaps, that the woman who played RBG in a recent movie about Ginsburg’s life was known for her role as a “Star Wars” heroine. RBG was a hero in the real world.
Well into her 80s, she became a feminist icon, but she began blazing a trail in the wilderness long before she was the subject of children’s storybooks and “Saturday Night Live” parodies.
The movie, “On the Basis of Sex,” opens with a scene of resolute young men attired in a uniform of dark suits, white shirts and dark ties, walking up the steps of Harvard Law School. Among them is a young woman, her brilliant blue dress shimmering amid the somber sea around her. Ginsburg is one of nine women in a class of more than 500, six years after the law school began admitting women. In the movie, the dean asks each of the nine why she is taking a space that could have gone to a man. Ginsburg explains that her husband is a second-year law student; studying the law would help her “be a more patient and understanding wife.”
The year was 1956. The young Ginsburg may have been strong and resolute, but she was not yet the Notorious RBG immortalized in T-shirts and on Tumblr. (Her clerks had to explain the pop-culture reference to their opera-buff boss.)
She and her husband were still in law school, parents of a toddler, when Martin Ginsburg was diagnosed with cancer. His wife attended both her classes and his and helped him with his assignments. She asked Harvard to allow her to finish law school in New York and still get her Harvard degree; the school said no. Ruth Ginsburg transferred, finishing in a tie for first in her class at Columbia Law School.
And couldn’t find a job. She was a woman, a mother, a Jew. No law firm would hire her, so she took a job teaching the law. (She would eventually become the first woman to hold a full professorship at Columbia Law.)
It was her husband who found a tax case that set her on a path that would lead to the U.S. Supreme Court. A Colorado man was not allowed a deduction for expenses he incurred as a caregiver to his elderly mother. He was discriminated against “on the basis of sex,” since only women were allowed to take the deduction. Ironically, a law discriminating against men gave Ginsburg the opening she needed to chip away at the vast body of law that discriminated against women.
As the first director of the Women’s Rights Project of the American Civil Liberties Union, she began bringing cases that would dismantle laws and regulations designed explicitly to deny women full citizenship under the Constitution. Arguably the most notable was Reed v. Reed, a case involving an Idaho statute that gave preference to men in executing estates. She won, disrupting a century of legal precedent that sanctioned women’s exclusion as a show of reverence rather than prejudice.
In her New Yorker article, Lepore points out that Chief Justice Warren Burger, writing for the majority, used language that Ginsburg had introduced. “To give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the equal protection of the Fourteenth Amendment …”
President Jimmy Carter appointed Ginsburg to the D.C. Circuit Court in 1980. President Bill Clinton appointed her to the high court 13 years later. The diminutive woman with the big glasses and hair smoothed back with a trademark scrunchie served for 27 years.
Her most significant opinions on the Supreme Court included one she wrote for the majority in a 1996 case in which the court ruled that Virginia Military Institute violated the equal-protection clause by refusing to enroll female students.
“Through a century plus three decades and more,” she wrote, “women did not count among voters composing ‘We the People.’ Not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women the opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.”
As the high court became more conservative during her tenure, Ginsburg found herself writing frequently in dissent. Her vital role as the voice of the minority may have gone against her consensus-building grain but she seemed to embrace its value, even punctuating the dissenting occasions with striking neckpieces that foiled her solemn robe.
Even when she strongly disagreed, Ginsburg’s dissents were expertly crafted in respectful and measured tones. “Fight for the things you care about,” she told young women in a 2015 speech at Harvard. “But do it in a way that will lead others to join you.”
Her dissents became law, as when her 2007 opinion inspired the Lilly Ledbetter Fair Pay Act. Her dissents became clear-eyed prophecies, as when she lamented the majority’s decision in Shelby County v. Holder to gut a vital section of the 1965 Voting Rights Act, thereby allowing voter suppression to go unchecked.
“Dissents speak to a future age,” she told National Public Radio’s
Nina Totenberg in a 2002 interview. “It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
Today, though, in the words of one Houston woman, “Tears flow in a river of gratitude.” With mourners gathering on a Friday evening on the steps of the Supreme Court building, she spoke for countless others across this troubled nation.