THE CONSERVATIVE LEGACY OF RBG
The liberal justice’s secret to forging alliances across the aisle, says a former law clerk: finding and valuing common ground.
With the passing of Ruth Bader
Ginsburg, we have lost one of our nation’s greatest legal minds. While she obviously was much beloved on the political left, we should not forget key aspects of her legacy that also resonated powerfully on the other side of the aisle, including her commitment to meritocracy, family, incremental change and the rule of law. I speak from personal experience, as a conservative who served as her law clerk during the October 1994 term—and stayed in close touch with her ever since.
RBG’S friendship with conservative Justice Antonin Scalia, who passed away in 2016, was perplexing to some commentators but made perfect sense to both justices. In part, their friendship sprang from the admiration each felt for the other’s considerable talents, as well as from their shared love of opera. But their friendship was grounded also in common values.
This may surprise those who know “notorious RBG” from social media and popular culture. But these are unreliable sources, especially about someone whose own knowledge of popular culture did not extend much beyond Verdi and Mozart. On the rare occasions when RBG went to a movie, she often brought a flashlight and used the time to catch up on paperwork. I doubt she ever watched Saturday Night Live before it began including affectionate parodies of her. As I told RBG not long ago, if someone had asked me 25 years ago who—among all the people I knew—was least likely to become a popular culture icon, she would have been my choice, hands down.
But if you had asked me who exemplified the value of meritocracy—of letting people compete and show what they can DO—RBG also would have been my pick. As a champion for women’s rights, she showed that everyone deserved to be judged on their merits. The Declaration of Independence promised us all the right to “the pursuit of happiness”—to develop our talents and pursue our dreams. RBG urged the nation to honor this commitment to women, as well as to men. Success should be based on ability, not biology.
RBG knew firsthand the frustration of not being judged on merit. Even though she was at the top of her law school class, no one would hire her after graduation in 1959. She would joke that as a woman, a mother and a Jew, she was a triple threat.
In a conversation over a decade ago, she repeated to me the explanation one law firm gave for not extending an offer: “We already have a woman.” RBG’S late husband, Marty Ginsburg, who was himself a leading tax lawyer, chimed in. “You owe them a lot, Ruth,” he quipped. “If not for them, you would now be a partner at a law firm.”
Along with the virtues of meritocracy and competition, RBG believed in family, a commitment also shared by conservative thinkers. Her devotion to her own family was obvious. During law school, she nursed Marty through a bout with cancer, while also caring for their daughter and keeping up with classes. RBG’S devotion to Marty and their children and grandchildren never dimmed.
As a feminist, RBG never urged anyone to put their careers before their children. Rather, she wanted fathers to join mothers in bearing the burdens of childrearing. RBG believed this division of labor would be better not only for mothers and children, but also for fathers. Indeed, to reinforce this point, RBG always asked about my family whenever we spoke. When I served as dean of her alma mater, Columbia Law School, her first question was always about my children. Only then would she ask about the school. I got the message, and my life has been richer for it.
In seeking to change attitudes, RBG understood the importance of proceeding incrementally—a quality that also should resonate with conservatives. As an advocate, she realized that one way to convey the evils of gender discrimination to (male) judges was to bring cases involving discrimination against men. She regularly won those cases.
In four decades of service on the bench, RBG left the world of advocacy behind, cherishing the impartiality of a well-functioning judiciary. She worked tirelessly to produce opinions that were clear and concise. “Get it right and keep it tight” was her mantra with law clerks. The reasoning had to be scrupulously accurate and honest. It was wrong to “knock chess pieces off the table”—her phrase for not taking account of counterarguments. Like her friend Nino Scalia, she was committed to parsing the relevant authorities and following the law.
I do not mean to minimize her differences with conservatives—whether in interpretive philosophy or in her votes in some high-profile cases. But RBG herself felt that these differences were overemphasized. In countless speeches at law schools and bar associations, she observed that very few Supreme Court cases were decided by a vote of five to four, while a great many were unanimous.
RBG knew the value of finding common ground with colleagues. Whether in the majority or in dissent, she was unfailingly courteous. Even as she pressed her argument vigorously, she focused on the merits, without making the disagreement personal. RBG recognized that even if they disagreed today, they were sure to agree in another case tomorrow.
In other words, along with her many other gifts, RBG knew how to make her case forcefully, but collegially. Sadly, this is becoming a lost art in our increasingly polarized time. For so many reasons, all of us would do well to follow her example. She would be proud for that lesson to be a core part of her legacy.