The death of U.S. Supreme Court Justice Ruth Bader Ginsburg at the age of 87 sent the nation into a paroxysm of grief that went beyond the response to any previous justice’s passing—and showed just how profoundly she had transcended her position as a respected jurist who had risen to the summit of her profession. For the last years of her life, the diminutive Jewish grandmother found herself transmuted into the “Notorious RBG,” a pop-culture icon. The RBG brand spawned a wide variety of “merch”—action figures, bobblehead dolls, children’s literature, coloring books, “I dissent” T-shirts and two recent films, an Oscar-nominated documentary and a Hollywood biopic.
On Saturday Night Live, Kate McKinnon embodied her as a sassy and abusive critic of Republicans who delivered pointed assaults in the form of “Ginsburns.” The fact that McKinnon’s character bore no resemblance to Ginsburg’s actual personality or her way of dealing with those who disagreed with her was irrelevant. Americans who never bothered to read a single one of her legal opinions and knew nothing of how she actually conducted her life simply decided she was the octogenarian heroine of the liberal resistance to President Donald Trump and conservatives.
So the somber crowds who gathered at the Supreme Court Building and then waited in line to pass by her casket when she lay in state at the U.S. Capitol were not merely paying tribute to the life of a remarkable woman whose career had embodied the successful struggle for gender equality in the last half of the 20th century. Her late-blooming celebrity status was, as much as anything else, testimony to the way the once-secluded world of the Supreme Court had become completely politicized during the course of her life.
With the growth of the administrative state controlled by the executive branch and the concomitant chronic dysfunction of Congress, the judiciary has become a super-legislature that has final say about the disposition of key issues. That has made the struggle to control the court via the lifetime appointments granted to justices a life-and-death affair for both political parties.
Because she had chosen to keep her seat on the Court rather than resign before the 2014 midterms—when President Barack Obama and a Democratic-controlled Senate could have replaced her with another liberal—Ginsburg’s inability to hang on until a Democratic president was sitting in the White House was a blow to all those who had idolized her. That Trump, who inspired Ginsburg to break protocol and openly criticize him during the 2016 presidential campaign, had the power to choose her replacement was a particularly bitter pill for RBG fans to swallow. That was especially true given the prospect that she would be succeeded by Judge Amy Coney Barrett, a conservative Catholic who was depicted as the polar opposite of Ginsburg and a possible vote to overturn the Roe v. Wade decision that legalized abortion.
Thus her death was not merely the coda to a career full of accomplishments. In the eyes of her admirers, it was inextricably tied to a culture war in which their foes weren’t merely conservatives but advocates of authoritarianism. And her successor would be chosen by a leader whom they viewed as not merely mistaken or incompetent but evil. Laying her to rest therefore took on the aspect of an homage to a secular saint or prophet who died while calling on her people to carry on her struggle. The ubiquitous “May Her Memory Be for a Revolution” signs seen at tributes to Ginsburg—a twist on the traditional Jewish expression of mourning saying that the deceased’s life should be “for a blessing”—testified that the RBG cult had become indistinguishable from the politics of the left. The story of Ginsburg’s exemplary life had become subordinate to her posthumous role as a martyr of the Trump years.
RUTH BADER, known as Kiki, was born in Brooklyn, New York, in 1933 to Nathan, an immigrant from Odessa, and Celia, whose parents had come to the United States from Poland. Ruth’s older sister had died as an infant, leaving Ruth to be raised as an only child. She was brought up in a middle-class Jewish home typical of the era, with a strict emphasis on learning and achievement and complemented by piano lessons, a place on the high-school twirling squad, and summers at a Jewish camp in the Adirondacks.
Her mother’s death after a long battle with cancer only days before Ruth’s high-school graduation was both a trauma and a catalyst—providing motivation for a young woman determined to succeed. The fact that her mother had been denied the opportunity for educational and professional advancement because of her gender accelerated Ruth’s drive and her desire to effect change.
She attended Cornell University, where she met and married Martin Ginsburg and, after the birth of their first child, followed him to Harvard Law School, where she was a year behind her husband.
It was at Harvard Law that the notion of Ginsburg as an indomitable figure was born. A member of one of the first classes at Harvard to admit women, she and the eight other female students were invited to a dinner at the home of Dean Erwin Griswold. Part of the lore of her struggles to be accepted in the male world of the law in 1950s America was that Griswold asked each of the students, “Why are you at Harvard Law School, taking a place that could have gone to a man?”
Her answer, in which she explained that her husband was in the second-year class and that it was “important for a wife to understand her husband’s work,” was, she later said, an attempt to be non-confrontational and pitched to appeal to the ethos of the time. But it would later be depicted in the hagiographic biopic On the Basis of Sex as sarcasm, the act of a female rebel defying male chauvinists.
But the most important test of her character during this period was not caused by what one biographer termed the “testosterone-charged atmosphere of the institution or the scarcity of bathrooms for women”—neither of which kept her from being rated at the top of her class or gaining a coveted spot on the staff of the Harvard Law Review. In his third year at Harvard, Martin Ginsburg was diagnosed with testicular cancer and endured two operations and radiation therapy. During this period, Ruth took charge of ensuring his graduation while also performing her own course work and taking care of both her ailing husband and a small child.
After her husband’s graduation and recruitment to a New York City law firm, Ginsburg left Harvard and finished her legal training at Columbia, where she finished first in her class in 1959. While any man with similar qualifications would have received job offers from major law firms or a clerkship with an appellate judge, Ginsburg was rejected everywhere because of her gender. Eventually, she was hired to clerk for a federal district judge but would never secure a conventional career in the practice of law.
Her focus was diverted to the academy. She went on to teach at Rutgers Law School and then Columbia Law, where she became the first tenured woman and a co-author of the first legal textbook on sex-discrimination cases.
In the 1970s, Ginsburg charted the course that would lead her to the summit. After helping to found the American Civil Liberties Union’s Women’s Rights Project and becoming the group’s legal counsel, she litigated a number of appeals cases to the Supreme Court that would, one by one, change the face of the U.S. legal code with respect to the treatment of women.
Through a series of carefully written briefs and arguments in which she invoked the Equal Protection Clause of the 14th Amendment, Ginsburg was able to chip away at laws that treated traditional gender roles as the basis for the treatment of the sexes. These included laws that prohibited men from collecting benefits for taking care of sick relatives or providing child care, both of which were assumed to be solely the province of women.
But on the matter that would become eternally associated with women’s rights and the high court, Ginsburg kept her distance. She and the ACLU did not join in on the landmark Roe v. Wade abortion case, in which the Supreme Court ventured far from the text of the Constitution and got ahead of state legislatures that were gradually eliminating laws prohibiting abortion. Ginsburg preferred a gradualist approach to the issue and later criticized the Court’s ruling—even though as a matter of policy she was an absolutist with respect to the right of abortion. She thought the majority opinion in Roe went “too far in the change it ordered and presented an incomplete justification for its action.” Indeed, when one considers that the anger provoked by Roe was partly responsible for the mobilization of conservative women that led to the defeat of the Equal Rights Amendment—which was far more important to Ginsburg—her position seems to have been the wiser one for feminists.
Griswold, the dean who had demeaned the young Ginsburg when she came to Harvard Law, eventually referred to her as “the Thurgood Marshall of gender-equality law.” That analogy to the civil-rights pioneer who had successfully argued the landmark Brown v. Board of Education desegregation case before he was appointed to the Supreme Court would later be among the arguments employed for her own nomination to the same bench.
GINSBURG, benefitting from President Jimmy Carter’s determination to address the paucity of minorities and women on the federal bench, was nominated for the prestigious United States Court of Appeals for the District of Columbia Circuit in 1980. Her reputation on the appellate bench was that of a moderate who adhered to precedent, delivered narrowly written decisions, and, as one 1987 study claimed, voted more often with Republican appointees (such as her friends Judges Antonin Scalia and Robert Bork) than Democrats—including on one case (Dronenberg v. Zech) in which she joined with conservatives to refuse an appeal by a sailor who had been discharged from the U.S. Navy for homosexual conduct.
Nor was she quite the liberal champion she was later assumed to be in other respects. In her time on the court of appeals, she never hired a single African-American clerk. That was a record that she failed to improve on at the Supreme Court, where, as even an otherwise flattering 2018 New Yorker profile pointed out, she hired only one black person over the course of 25 years.
Ginsburg’s moderation proved something of an obstacle when it came to her appointment to the Supreme Court. During the nearly three months in 1993 it took President Bill Clinton to decide on a replacement for the retiring Justice Byron White, women’s groups were asked their opinion by the White House. They did not recommend Ginsburg.
When she was recommended by Daniel Patrick Moynihan, Clinton reportedly told the New York senator that “the women were against her.” Even after a determined campaign orchestrated by her husband and his myriad political and legal contacts, the best they could come up with was a statement from leading feminist legal groups saying that they weren’t opposed to her selection. In the end, Clinton’s characteristic indecisiveness (and that of his first choice, New York Governor Mario Cuomo) led to the collapse of other potential candidates and left an opening for a belated, extended interview with Ginsburg to convince the president to nominate her.
Ginsburg’s hearings were a cakewalk with little in the way of tough questioning and virtually no attacks on her record, let alone her character. She refused to answer questions about the constitutionality of various measures, including the death penalty, which might come before the Court in the future. That set a “Ginsburg precedent” that Republicans would later invoke when defending future conservative nominees’ refusals to answer queries on how they would vote on controversial cases, especially those related to abortion. She breezed through the Senate on a 96–3 vote.
Ginsburg’s first years in the black robe were not especially notable for any attempt to lead a swing to the left. She fit in as one of the four reliably liberal votes on a court that was often split on ideological or partisan issues, such as the 2000 Bush v. Gore ruling. But throughout most of her first two decades on the Court, Ginsburg was not seen as a left-wing firebrand. Nor, despite having attained the pinnacle of many jurists’ ambitions, was she considered a particularly prominent public figure.
In keeping with her reserved public demeanor, Ginsburg’s approach to the law was essentially modest rather than revolutionary. The liberal scholar Cass Sunstein called her a “rational minimalist” who was deeply cautious as well as respectful of precedents even on those issues where she sought to move the law toward a position closer to her own ideological stands.
She did help move the Court further toward ending the last vestiges of passé attitudes about women in the 1996 United States v. Virginia decision, which ended the state-funded Virginia Military Institute’s practice of denying admission to women and the “separate but equal” alternative for would-be female cadets. But throughout most of her tenure, she was pretty much a conventional liberal who generally supported state power, as when she joined the outrageous majority decision in the Kelo v. City of New London case in which the Court affirmed the right of the city to seize private property in order to benefit another private actor that might use it more profitably. And in Gratz v. Bollinger, in 2003, she defended the University of Michigan’s expansive affirmative-action admissions rules. In her dissent, she said that it should be permissible to distinguish between what she termed policies of exclusion and inclusion, thus effectively granting legitimacy to some forms of discrimination but not to others.
Still, only after Sandra Day O’Connor resigned and was replaced by the more conservative Samuel Alito—and the Court began a tentative drift toward the textualism and originalism championed by Scalia—did Ginsburg begin to assume the guise of the Great Liberal Dissenter. This was most on display in the case of Ledbetter v. Goodyear in 2007, in which she took the side of a woman who had experienced gender-based pay discrimination but who had lost her case because the statute of limitations had expired. Ginsburg argued that the case had come up late because women lacked the information to know they were being discriminated against. Ginsburg’s position became the root of a law championed by the Obama administration and passed by Congress in 2009 to make it easier to allow employees to win such cases.
Her immortalization would only begin in earnest in 2013 with her fiery dissent in Shelby County v. Holder. The case centered on an Alabama county’s challenge to a provision of the 1965 Voting Rights Act that required certain jurisdictions notorious for past discrimination to obtain preclearance from the U.S. Justice Department for any changes to their voting systems. The 5–4 majority ruled that the criteria had been based on 40-year-old data and ignored the enormous changes on racial issues that had transformed the South and the rest of the country. The implication of the decision was that if Congress wanted to maintain scrutiny of certain localities when it came to race, it would have to do so via new legislation rather than pretending that Shelby County or anywhere else was the same place it had been in 1965.
“Throwing out preclearance when it has worked and is continuing to work,” Ginsburg thundered, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Ginsburg was equally dismissive of the majority in the 2014 Hobby Lobby v. Burwell case, which granted companies owned by religious believers the right to be exempt from provisions in the Affordable Care Act on conscience grounds. In her dissent, Ginsburg made it clear that she considered the First Amendment right to free exercise of religion to be subordinate to the right of female employees to free birth control. In doing so, Ginsburg, who had spent her career defending the rights of women who were subjects of discrimination, indicated that she had no interest in giving the same consideration to people of faith who themselves were dissenting from a contemporary consensus about social issues.
Shana Knizhnik, a law student at New York University, was so inspired by Ginsburg’s stances that she began a blog called “Notorious RBG” that was later the inspiration for a bestselling Ginsburg biography with the same title. The moniker was a play on the stage name of the Notorious B.I.G., an African-American rap star. Khnizhnik’s act of cultural appropriation was designed to make Ginsburg more relatable to readers. As Khnizhnik explained, young women needed a figure around whom to rally and who would serve as a focus for expressions of frustration and disdain for Republicans and the political establishment. That their icon was a person who was very much an establishment figure, both in terms of her education and sensibilities, didn’t matter.
Nor, in their eagerness to use Ginsburg’s image as a cudgel with which to beat the right, were her new fans daunted by the fact that the justice was herself deeply opposed to partisan vitriol. Despite their differences, Ginsburg was close friends with the Court’s most distinguished conservative voice, Antonin Scalia, with whom she enjoyed opera, family gatherings, and even trips. But now her persona would become a weapon that would be employed to demonize those who agreed with her opera pal.
The “Notorious RBG” image is primarily a creation of social media and an era in which hashtags and slogans, no matter how disconnected to reality or serious argument, have become a key mode of communication in American society. The cartoon-like badass version of Ginsburg helped fuel a spirit of partisan warfare more than respect for the law.
The image also stood in sharp contrast to her increasing physical frailty. Having lost her husband to a recurrence of his cancer in 2010, Ginsburg fought her own battles against chronic health problems in her last years, including two bouts with cancer. But having labored in relative obscurity throughout her career, Ginsburg enjoyed her newfound celebrity and even encouraged it with stunts such as sharing a workout with left-wing late-night comedian Stephen Colbert.
GINSBURG HAD always been proud of her Jewish identity, even though she had long been estranged from religious practice. On the day after her death, which fell on Rosh Hashanah, one New Jersey Reform synagogue replaced its customary reading of the Haftorah in their pandemic-era online services with the rabbi and cantor chanting—in the traditional cantillation used for sacred texts—a Ginsburg speech.
The viral video of that synagogue event may have struck many of those who watched it as an unintentional parody. But it also encapsulated the fact that her life had undergone an apotheosis. She had become a symbol of left-wing holiness and a latter-day prophet, albeit one who had lived to enjoy the kind of adulation that no prophet, let alone an American jurist, has ever enjoyed.
At a time in American culture when celebrities are famous for being famous rather than possessing any real distinctions, the honor given a woman who led a truly remarkable life full of genuine accomplishments is something to be welcomed, regardless of one’s views on Ginsburg’s judicial philosophy.
Moreover, in a country that seems to have lost its moral compass in the midst of a brutal culture war between left and right, the example of her friendship with Scalia might have served as a necessary moral lesson against the dangers of hyper-partisanship and dehumanization of those with whom we disagree.
But the impact of her passing has been to emphasize the opposite. The impulse to smear the reputation of the woman nominated to replace her and the claim that Amy Coney Barrett’s Catholic faith should disqualify her from high office are products of the same political and cultural rage and frustration that created the RBG cult.
The glory of Ruth Bader Ginsburg’s life was that it vindicated the faith in American democracy that her generation of Jewish immigrants to this country and their children embraced. And her rise in a legal world that had initially rejected her proved a triumph for belief in the promise of meritocracy and individual rights that is essential to the values of liberty and the constitutional system she served.
Yet the cult that has seized upon her identity and record seems less intent on celebrating her than on embracing toxic notions about America’s “systemic” flaws. Those who commemorate her death by threatening to “burn down” the system, or pack the courts with liberals (a notion she scorned), or who say that her “memory may be for a revolution” are actually denigrating her life’s work rather than honoring it. The unusual adulation afforded Ginsburg upon her passing is not so much a well-deserved belated honor as a regrettable distortion of her extraordinary example—and a cautionary reminder of why the rejection of idolatry is at the core of Judaism.
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