The Glorious RBG
By Tracy Moran
The U.S. Supreme Court’s leading liberal light died at home in Washington, D.C., on Friday, of complications from pancreatic cancer. A women’s rights and gender equality crusader, Ruth Bader Ginsburg was appointed to the country’s highest court in 1993, the second woman in history, and held the post until her death. Known for her powerful dissents on the court, she became a beloved cult figure, earning respect from people across the political spectrum and achieving near-rock-star status. OZY dedicates this weekend’s magazine to the life and legacy of America’s 107th justice, the “Notorious (and glorious) RBG.”
Joan Ruth, born in 1933, dropped her first name in elementary school in Brooklyn, where too many other kids responded to “Joan,” opting instead for “Ruth.” Later she would become known for being soft-spoken, but as a baby she kicked so much that her family called her “Kiki,” a fitting early nickname for a woman whose power of graceful dissent eventually earned her the moniker “Notorious RBG.” Kiki went on to study government at Cornell and married Martin Ginsburg shortly after graduation. She later gained entrance to Harvard Law School but transferred to Columbia Law School, where she finished in a tie at the top of her class.
Path to Feminism
With such academic brilliance, you would have thought that RBG would have been fielding a host of job offers. But as a diminutive Jewish woman in the 1960s, she struggled to get past the first round of many interviews with law firms and judges, most of whom preferred to hire non-Jewish men. She was also rejected for a Supreme Court clerkship in 1960, despite a stellar recommendation, owing to her gender. Luckily, one of her Columbia professors twisted a few arms, netting RBG an interview for a notable clerkship in New York. She would go on to become a law professor and a well-known women’s rights activist attorney — but it was a trip to Sweden that awakened the feminist in RBG. Nearly a quarter of Swedish law students at the time were women, she later told The New York Times. “I went to one proceeding in Stockholm where the presiding judge was eight months pregnant,” she said, noting how the experience opened her eyes to gender equality issues. When RBG returned to the U.S., she began teaching at Rutgers University, where she founded the first American law journal focused on women’s rights, in 1970. Two years later, she co-founded the Women’s Rights Project for the American Civil Liberties Union, tackling a series of landmark gender equality cases. Read more about the Swedish inspiration behind RBG’s activism on OZY.
Presidents and Benches
President Jimmy Carter nominated RBG to serve on the U.S. Court of Appeals for the D.C. Circuit in April 1980, where she stayed until 1993. There she became known as a consensus-builder who refused to be pulled into ideological bickering and set a standard for judicial collegiality. But a higher calling awaited. Thirteen years later, President Bill Clinton got his chance to chart American legal history by nominating the U.S. Supreme Court’s 107th justice — the first Democratic president to replace a justice since Lyndon Johnson — and did he ever: RBG was confirmed by the Senate in a 96-3 vote, and she spent the next 27 years honing her dedication to meticulous jurisprudence.
RBG’s Biggest Impact
Unlike many Supreme Court justices, Ginsburg was already a living legal legend before she joined the court. In a two-decade career as a lawyer, including at the ACLU’s Women’s Rights Project, she successfully argued a number of cases that expanded civil rights laws and constitutional protections for women, including winning five of the six cases she personally argued before the Supreme Court.
Key victories included Reed v. Reed (1971), which extended the Equal Protection Clause of the 14th Amendment to women, barring laws that discriminated according to sex, and Weinberger v. Wiesenfeld (1975), which struck down gender discrimination in state benefits. In Weinberger, Ginsburg cleverly built her case around a man who’d been the victim of gender discrimination, one of many tactics she employed to convince mostly male courts to appreciate the harms of such discrimination.
Memorable Opinions on the Court
RBG handed down many notable opinions during her 27 years as an associate justice of the Supreme Court. Here are a few of the most memorable:
Virginia Military Institute: Ginsburg wrote the majority opinion in United States v. Virginia (1996), declaring that the all-male, state-funded VMI could not continue to exclude women. Ginsburg argued that “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
Ledbetter: “The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” Ginsburg chided her majority colleagues in a scathing dissent in Ledbetter v. Goodyear Tire & Rubber Co. (2007), after they upheld the reversal of $3.8 million in back pay and damages awarded to Lilly Ledbetter, a woman who won her gender pay discrimination case against Goodyear, her employer. She called on Congress to take action to override the court’s decision — and the resulting legislation was the first bill signed by President Obama once he took office in 2009.
Shelby County: Ginsburg’s dissent in Shelby County v. Holder in 2013 helped spark her “notorious RBG” reputation. In that case, a majority of the court invalidated a provision in the Voting Rights Act requiring jurisdictions with a history of discrimination to submit to federal oversight before changing their voting procedures. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Those Who Will Carry Her Flame
Ginsburg has inspired millions, including countless female attorneys and activists following in her footsteps. Here are a few that could help advance her legacy in the years to come:
Debra Katz: Perhaps best known as Christine Blasey Ford’s attorney during the confirmation battle over now Justice Brett Kavanaugh, Katz has long been the go-to lawyer for women with sexual harassment and employment discrimination claims. She was even called “the feared attorney of the #MeToo moment” by the Washington Post.
Kimberlé Crenshaw: Crenshaw, a civil rights lawyer and law professor at both UCLA and Columbia University, specializes in race and gender equality. A pioneer in critical race theory as a scholar, she has worked for a holistic, gender-inclusive approach to racial justice interventions, including as the leader of #WhyWeCantWait, a campaign to include girls and women of color in all-male initiatives like My Brother’s Keeper.
Cecile Richards: The former Planned Parenthood president is a national leader for women’s rights and social and economic justice. In 2019, Richards co-founded a women’s mobilization group called Supermajority that “aims to train and mobilize 2 million women … to become organizers, activists, and leaders” to create a “multiracial, intergenerational movement for women’s equity.”
Justice Elena Kagan: One of the two remaining female justices on the high court, Kagan is known as a bridge builder, but she may well take up Ginsburg’s mantel for exacting jurisprudence combined with quick wit on the liberal side of the bench: She’s already known for adding pop cultural references — referencing Veep and the musical Hamilton, for example — in her opinions.
Ruth Bader Ginsburg wasn’t the only pioneering female judge giving people hope. Yvonne Mokgoro was appointed to the Constitutional Court of South Africa by Nelson Mandela, and while she retired in 2009 at the conclusion of her 15-year term, she has continued to work on behalf of women, children and human rights, overseeing a prominent report into government corruption released last year. In Britain, Lady Brenda Hale, the first female president of Britain’s Supreme Court, gave Brexit remainers an injection of optimism when she blocked a bid by Prime Minister Boris Johnson to unlawfully suspend Parliament (though she retired in January). And Brazil’s Joênia Wapixana, the country’s first indigenous lawyer, is fighting for people’s rights via the legislative branch these days after her election in 2018 as the country’s first indigenous congresswoman.
It’s the End of an Era
Republicans are vowing to replace the Supreme Court justice with fewer than 45 days before the presidential election, despite having refused to confirm an Obama appointee four years ago because it was an election year. RBG’s death, striking at a time when American political tensions are particularly high, threatens to create a nomination spectacle that could spoil faith in the U.S. electoral system for generations. Senate Majority Leader Mitch McConnell has already promised a floor vote on whomever Trump nominates, with the only question being whether he thinks it helps Republicans more to do so before the election, or afterward in a potential lame-duck session. Meanwhile, Democrats have little recourse, except to threaten that they will expand and pack the court with liberal justices should they take power back in 2021, which could create a tit-for-tat cycle that delegitimizes the highest court’s authority.
Trump declared at a rally Saturday night in North Carolina that his nominee will be a woman, and speculation is focused squarely on Judge Amy Coney Barrett, 48, who serves on the Seventh Circuit Court of Appeals. A Midwestern mother of seven, Barrett is a devout Catholic — and sharp foe of abortion. Another on the short list is Judge Barbara Lagoa, 52, who serves on the 11th Circuit Court of Appeals, a trailblazer from Florida who is of Cuban descent. Read more about Barrett on OZY.
As a confirmation vote looms, Republicans hold a 53-47 Senate edge, and Vice President Mike Pence would break any ties. Don’t count on any Democrats crossing the aisle, regardless of whom Trump nominates. Which Republicans could defect? Keep an eye on pro-choice GOP’ers Lisa Murkowski and Susan Collins (who’s in a tough re-election fight), unlikely #resistance hero Mitt Romney and endangered incumbents like Cory Gardner. One timing wrinkle to note: If Arizona Republican Sen. Martha McSally loses, her opponent, Democrat Mark Kelly, would be seated quickly in November rather than January — because McSally was appointed to the seat, not elected. Nonetheless, the procedural and political stars are aligned for a lame-duck vote: It takes a while to go through the process, and the electoral heat will be off of key senators. Read more about next steps on on OZY.
Will RBG’s Death Tip the Election?
Trump’s 2016 decision to release a list of potential Supreme Court picks was widely considered crucial to his win, as it helped consolidate skeptical conservatives. The president had been trying again to elevate the high court as an issue even before RBG’s death as a way of drawing attention to more favorable political turf than the pandemic. Now, Washington will be consumed by this for the next few months, which could help Trump. But the politics have shifted since 2016 — Democrats now care as much about the court as Republicans: Witness the huge fundraising effort for Democratic Senate candidates in the hours after Ginsburg’s death. This fight will galvanize both party bases even more.
The Supreme Court is scheduled to consider a challenge of Obamacare a week after the 2020 election, could lead to the landmark health care ruling being struck down if an additional conservative justice is in place. Nondiscrimination protections for LGBTQ people were ensured by a 6-3 majority vote this summer, meaning that decision is likely safe even without Ginsburg on the bench. But in the most recent term, there were 14 decisions that came to a 5-4 vote with Chief Justice John Roberts often providing the swing vote. Many of those could now be reversed, including a decision that defied Trump and protected DREAMers this summer. And abortion will be at the top of many voters’ minds, as a law in Louisiana that would have essentially shut down all clinics in the Pelican State this summer was overturned due to Roberts’ decisive vote. The outcome would have been far different with another conservative justice on the high court, adding to liberal concerns that Roe v. Wade may soon be reversed after nearly five decades as the law of the land.
In Her Own Words
“When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.”
— From Ginsburg’s 2016 book, My Own Words
“I pray that I may be all that [my mother] would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”
— From Ginsburg’s 1993 Supreme Court acceptance speech
“Real change, enduring change, happens one step at a time.”
— From Notorious RBG: The Life and Times of Ruth Bader Ginsburg
“She said, ‘Dear, in every good marriage it helps sometimes to be a little deaf.’ And I followed that advice in dealing not only with my dear spouse but in dealing even with my colleagues on the U.S. Supreme Court.”
— Advice offered by RBG’s mother-in-law
“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
— RBG in the eponymous documentary
“Dissents speak to a future age. … 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.”
—NPR interview 2002
“Some of my favorite opinions are dissenting opinions. I will not live to see what becomes of them, but I will remain hopeful. ”
—NPR interview 2002
- Tracy Moran, OZY AuthorContact Tracy Moran