By Brett Warnke
On the trip to Brooklyn, there is a large sign that says “OY.” From another perspective it also spells “YO,” an insider joke to the division of the borough between the Jewish and African-American diaspora population. Christopher Wallace (“Biggie Smalls”) and Ruth Bader Ginsburg (“The Notorious RBG,”) both were born and raised in Brooklyn. Both grew up in families without much money. And both had to gain respect in a world that had marginalized them.
Just as Justice Stevens was the best decision to come out of the mediocre Gerald Ford administration, RBG was undoubtedly Bill Clinton’s only decision that has had a progressive result.
President Clinton’s goal was to find someone who, when their name was uttered, said, “Yes. Wow. A home run.”
It’s therefore ironic and telling that the disbarred liar from Hot Springs initially didn’t even want Ginsburg as his nominee for the 107th justice slot.
In recent years, however, she has become a kind of Joan of Arc for millennials, especially women, who have various RBG ephemera and tattoos to prove it. In a recent scholarly collection, The Legacy of Ruth Bader Ginsburg, editor Scott Dodson, has compiled sixteen articles and reflections regarding Ginsburg’s lifetime of important dissents, arguments, and judicial philosophy. Also, a fun, bright and more hagiographic portrayal (which is also a New York Times bestseller), and one that certainly calls on Dodson’s collection is Notorious RBG: The Life and Times of Ruth Bader Ginsburg by Irin Carmon & Shana Knizhnik. It is colorful, funny, quick, and engaging, the perfect buy before the end of Women’s History Month.
Kennedy-crony and Roe v. Wade opponent Byron White retired in 1993 and the slipshod outfit running the Clinton White House, fresh from closeting gays in the military, scrambled in disagreement about whom to nominate. Clinton first offered the vacancy to the much-overrated governor of New York, Mario Cuomo—famous for one speech and a thousand headlines. But the dithering “Hamlet on the Hudson” rejected Clinton’s offer. Cuomo had bigger plans, apparently, telling George Stephanopoulos, “I surrender so many opportunities of service if I take the Court. I feel that I would abandon what I have to do.” Apparently, that “service” included spending the rest of the 90s at Robert Bork’s former law firm, Willkie Farr & Gallagher after he lost reelection.
Ginsburg—worth ten of Clinton—was, therefore, a happy accident for liberalism in a corporate era Clinton mobilized his White House to sustain and intensify.
The measured and almost surgical use of language that RBG used in her initial Rose Garden remarks illustrated what one critic described: No words ever came from RBG without having been preceded by thoughts.
In her introduction to the country, RBG discussed her family and hopes for a world where a parent could love children equally. Despite President Clinton’s worries that Ginsburg would be tarred by conservatives as “out there” on the left, many feminists were wary of her criticism of Roe. There were other critics—the loudest being the loathsome, OJ-freeing toiletbug, Alan Dershowitz, who called Ginsburg “an average judge” and said that Clinton was “reaching down” to appoint her. But she was so respected by lawyers and so non-controversial in a media that labeled her “moderate,” that she was even endorsed by Robert Bork, Orrin Hatch, and the Chamber of Commerce.
She slid through the Senate hearings and vote, demonstrating her thoughtfulness and deliberate demeanor while later admitting to being a tad deferential in her early period on the court.
The Notorious RBG is a swift read, but one that adds humor and earnest praise to a person, standing 5’1, who could be overlooked at a cocktail party. At eighty-three years old, Ginsburg consistently impresses the authors with her bottomless energy. Many a naysayer (this reviewer included) believed in the early Obama years that she should have stepped aside. Yet, RBG has only become stronger with age. True, she can no longer parasail or leap atop an elephant (as she did with her pal Antonin Scalia) but her bustling perfectionism, behavior she acquired as she studied beside her sickly mother who died before Ginsburg’s graduation, has proven her to be the corporate court’s most potent dissenter.
When interviewed, RBG’s clipped remarks often return to early memories of evenings in Flatbush. Evenings in Brooklyn, so close to the mix of things, can be quiet. Walk-up tenements and immigrant neighborhoods in mid-century American could be a storm of noise but also offer eerie silences. At Ginsburg’s home there was time for quiet study and the cultivation of a work ethic—a minute-by-minute, word-by-word push to prove that she would not disappoint her immigrant parents.
That precision took her to the republic’s halls of power. After arguing her first case before the Supreme Court, Justice Blackmun rightly characterized Ginsburg in his diary as “a very precise female.” (In total, she argued 6 cases before the Supreme Court and won 5.) Paralleling her slow and steady speech, Ginsburg has always believed that real change in America is incremental, one bit at a time.
Ginsburg kept her powder dry through her early years on the Rehnquist court. But her recent fame has come from softly expressing repeated and powerful verbal dissents against the gutting of the Voting Rights Act or support of women’s rights in the workplace. The “moderate” Ginsburg has gained a reputation as a liberal fighter on the bleak 5-4 years of the Roberts Court, when precedent was repeatedly overturned and George W.’s choices shift the court right.
America had begun this shift to the right in the chaotic 70s, just as full-throated feminism and Ginsburg’s career flowered. RBG was appointed by President Carter in 1980 to the Court of Appeals, (the same power-hating, anti-political President who lamented in his diaries in 1978 that he hated having to make so many judicial appointments).
Her rapier-like writings … contain forceful arguments and parrying legal precision that have the gleaming grace of a blade.
In terms of personality, Ginsburg’s present fellow-justice Sonia Sotomayor, once called “one tough bitch” by a colleague, is often characterized as the Bronx-born judge with a fist. But Ginsburg never approaches issues with a fist. Instead, RBG is a knife. Her rapier-like writings lack the affected flourishes of a Kennedy or the sulfurous, personal jibes of a Scalia. Instead they contain forceful arguments and parrying legal precision that have the gleaming grace of a blade. In his book Five Chiefs, Justice Stevens reported having terrible difficulty hearing RBG’s voice on the Court. Her force was quiet, even while a proud ACLU member—one who refused to condemn or back away from the organization for the Clintonoids preparing her for the ‘93 confirmation hearings. Her ideas are loudest on the page and Carmon and Knizhnik’s book, as does Dodson’s collection, work to include Ginsburg’s quotes and writings as well as interpret them for a lay audience.
RBG has been an expert on civil cases, understanding how business litigation could impact women. And she has been second to none during questioning. While dullard Clarence Thomas has sat mutely year after year, in one witness’s account Ginsburg so frequently interrupts other justices that some of her colleagues simply cut her off and continue their questioning of the lawyers. At bottom, from her cosmopolitan style (she wears turbans and Italian shoes), her no-nonsense manner, to her wit and grit, RBG is a New Yorker.
Carmon and Knizhnik detail Ginsburg’s struggles—both her fights for equality (like joining a lawsuit against Rutgers for equality) but also the loss of her husband, the family’s brilliant cook. She also endured the low-expectations of her family and time in addition to the sexism,and rejection from older jurists—some because they did not want to curse around women and others just too dense to see her brilliance as she rose in the male-dominated profession. But she pushed herself harder, as she had done in Flatbush, soaring higher than any classmate and later even hid her pregnancy in order to continue teaching law.
Her importance to the present court came seven years into her time on Supreme Court justice. RBG’s Republican-appointed colleagues handed the White House to George W. Bush, twice injecting itself (needlessly) into the notorious political coup of 2000. And while Carmon and Knizhnik portray her as a lioness of dissent—the images and cartoons in their book are absolutely hilarious—any liberal could see that the Supreme Court is an anti-democratic institution. It is difficult, for me at least, to call a lifetime appointee “left-leaning” or “progressive.”
But RBG belies the idea of a progressive justice, I think. She actually does not believe drastic social change should come from courts—even arguing that decisions like Roe were injudicious, counter-productive, or at least incautious. Ginsburg often points out that the word “equal” doesn’t appear in the Constitution until the 14th Amendment, before which time women, the poor, and many minorities were simply ignored by the law. And in one interview she stated that “no door” is closed to women if they have “the talent and the will.” There goes the glass ceiling, apparently! Ginsburg is not a Brennan or a Marshall. However sharp her claws, she is a Ginsburg: complex, steady, tireless.
The lacy justice can often seem aloof and ponderous, quietly thinking to herself, head bowed above the bright frills on her collar. But also, in a very East Coast fashion, she warms to those in her inner circle. In one account, a former clerk, Susan Williams, recalled waiting for RBG outside a conference room during her confirmation hearings. A room was filled with expectant muckety-mucks as Ginsburg arrived. Cutting through the crowded hallway, RBG ignored the others and walked straight over stood on tiptoe and kissed Williams’s cheek.
“That moment is frozen in tableau in my mind,” Williams remembered, “this tiny woman, radiating simultaneously enormous warmth and power, filling the hallway with her presence, briefly ignoring important people so as to make contact with a distinctly unimportant ex-clerk…so justly confident in her judicial stature that she could publically display human tenderness that deeply grounds her.”
But one woman—even the indomitable RBG—cannot thwart social forces, animated by business-friendly ideology or religious zealotry on a 9-person, politically-appointed court. It is a court too small for a country so large with money so strong in a government so corrupted.
When discussing the work of her clerks, RBG tellingly remarked, “Mostly, I would like to do all of my own work so I could write all my opinions myself, but there is just not enough time to do that.” It seems RBG must believe that right-thinking legal adroitness, a kind of juridical packhorse individualism whereby an encyclopedic knowledge of legal precedent could move the Court. It is the belief of reason and democracy, that the arc of history will bend towards justice.
But it has not happened.
Instead, the Roberts Court has, among other decisions, enshrined individual gun rights out of the incoherence of the Second Amendment, smuggled “religious liberty” precedent into existence with the Hobby Law decision, gutted campaign finance laws, and in the 2007 Ledbetter case, shown no interest or empathy regarding the struggles of women in the workplace.
RBG was there to dissent, admirably. But it has not been enough.
In Justice Alito’s awful opinion in Vance v. Ball State University, a worker’s boss counted as a ‘supervisor’ only if the boss has the power to fire or significantly change the worker’s job responsibilities or compensation. This, despite the facts of the case, pointed out by Ginsburg, that a black woman’s boss told her she had “luscious lips…beautiful eyes… a fantastic ass” before using racial slurs, pulling her on his lap, and grabbing her buttocks. Alito, not content with his victory remained smug and true to his petulant character, shook his head, rolled his eyes and pouted (as he did during Obama’s State of the Union) during Ginsburg’s dissent. (If only Alito had shown such disgust at the Concerned Alumni group—one opposed to the inclusion of minorities and women at Princeton–an association, by the way, he later used to demonstrate his commitment to the Reagan administration’s conservative principles.)
Mother Jones journalist Stephanie Mencimer pointed out in her Bush-era legal study that big business succeeded where disengagement and public cynicism about politics failed. She wrote that in taking bad public policies and “packaging and stage-managing them, and selling them to the public through well-paid ‘experts,’” the gullible media establishment and corporate mouthpieces subverted the legal structure of the country.
Corporate government has legalized bribery and used the 9/11 attacks to subvert protections to civil liberties, as there has been no countervailing force to the well-oiled apparatus of the right pushing the economic and social shifts of neoliberalism. “The average citizen,” Mencimer writes, “still believes [the legal system] will be there for him…it is not the case.”
RBG began her nomination process in 1993 by paying tribute to the women’s movement and push for civil rights. But despite RBG’s individual force on the court, her ability to discuss and write about matters of race, gender, and class, as well as her impeccable style and personal grace, it will take more than singular legal genius to protect and maintain the rights, earning power, organizing abilities, and hard-fought social victories of the 20th century.
As Anacharsis knew, laws are spider-webs, which catch the little flies but cannot hold the big ones. Therefore, no amount of personal pragmatism—however steeped in the civil rights and feminist struggles—will likely trap the agents of the status quo in the web of current law. Who, after all, was prosecuted and held responsible for the vast financial frauds and grand swindles of our time? To extend rights in the America of corporate government and blaze new trails for equality and justice will require new forms of organization and more than a little solidarity. And that necessitates more than a simply majority of five robed jurists, however good or evil their intentions. It will take all of us.