الإثنين, نوفمبر 30, 2020
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The Glorious Ruth Bader Ginsburg

The Glorious Ruth Bader Ginsburg

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remembrance

I learned, while writing about her, that her precision disguised her warmth.

Photo: Erik Madigan Heck / Trunk Archive

Photo: Erik Madigan Heck / Trunk Archive

Ruth Bader Ginsburg used to instruct her clerks to get it right and keep it tight, so I’ll try to do the same. Only someone so stubborn and single-minded, someone so in love with the work, could have accomplished what she did — as a woman, survived discrimination and loss; as a lawyer, compelled the Constitution to recognize that women were people; as a justice, inspired millions of people in dissent. (I asked her once in an interview what she had changed her mind about and she refused to answer. “I don’t dwell on that kind of question,” she said. “I really concentrate on what’s on my plate at the moment and do the very best I can.”) What made her RBG would also enact the most tragic and sickening ironies of today.

The feminist with a fundamentally optimistic vision, who believed that people, especially men, could be better, might be soon replaced by the rankest misogynist. The litigator and jurist who long subordinated her own immediate desires to the good and legitimacy of institutions, who had preached that slow change would stave off backlash, lived long enough to see Trump and the Federalist Society tear off the Court’s thin veneer of legitimacy anyway. In the 2013 voting-rights dissent that earned her the Notorious RBG nickname, Ginsburg offered an addendum to Martin Luther King Jr.’s suggestion that the arc of history eventually bent toward justice: “if there is a steadfast commitment to see the task through to completion.” She was thus committed. Still, today she leaves the work not only unfinished but at risk of being undone.

Ginsburg was born in 1933 in Flatbush, and her stoicism was forged in a childhood spent in a house that, she said, bore “the smell of death.” When she was 2, her only sister died of meningitis; one day short of her high-school graduation, her mother died of cervical cancer. Celia Bader, who had once broken her nose reading while walking down the street but whose sweatshop wages had gone to her brother’s education, left behind secret college savings for her daughter and a will to accomplish what Celia had been denied.

At Cornell, Ruth watched people she knew, many of them fellow Jews, lose everything to McCarthyism, and noticed that lawyers had both principles and a profession — a pragmatic concern for a motherless girl whose father struggled in the fur business. (She never totally lost that Depression-baby parsimony — into her 80s she was spotted rummaging for coupons at the CVS at the Watergate, despite her marriage having left her wealthy.) When she’d first met her classmate Marty Ginsburg, Ruth often recalled, he was the only boy who cared that she had a brain. It was a low-key humblebrag; Ruth was a knockout.

If she obsessed over process and order, it was out of a general belief, shared by the postwar liberalism that shaped her, that functioning institutions could provide a neutral bulwark to the excesses of the past. From the beginning, she hated injustice and discrimination, an instinct brought into sharp relief by World War II, but also because they offended her sense of rationality. In early life, though, her response was mostly silent endurance. At the Oklahoma Social Security office where she toiled when Marty was drafted, she was demoted for being pregnant —they called it maternity leave, but it was unpaid and not optional — and she said nothing. At Harvard Law School, where the dean infamously asked the nine women of her class how they could justify taking the place of a man, she lied and said she wanted to be a better wife to be her husband, though I now wonder if this was a barb disguised as compliance.

She soon had bigger problems. Marty’s diagnosis of testicular cancer in his third year of law school threatened to destroy her newly constituted family.  She gritted her teeth and learned to get by on two hours of sleep a night to care for him and see that he graduated on time. When Marty survived and the family moved to New York, Ruth ignored closed doors and unanswered job applications and the treble disadvantages of being, by then, “a woman, a mother, and a Jew.”

Her lucky break in the working world came because no other man wanted the job of writing a book about Swedish civil procedure, and the world might have been different if she were sent anywhere else. In Sweden, she lived on her own for the first time, weeks on end, and absorbed a public debate over what the point of women’s liberation was if men stayed exactly the same. There was a lag time, though, such that when she came back and got a job teaching law at Rutgers, she swallowed the unapologetically lower pay (Marty had a good salary, the dean told her) and hid her second pregnancy under baggy clothes until she had a renewed contract in hand.

One reason Ginsburg might have been reluctant to retire is that like many women of her generation, it took so long for her to get a chance, and even longer for her to become the person she was supposed to be. She did not even begin to be a “flaming feminist litigator,” as she would later describe herself, until she was 37 years old. That year, 1970, she taught Rutgers’s first class on women and the law at the prodding of insurgent female law students, and took on the cases of women whose letters piled up at the local ACLU affiliate.

It was a neat intergenerational relay. If younger women pushed her to take less shit, the work of the women who came before her provided a blueprint. In a mere month of reading everything on women and the law at the library, she discovered that the law had for a century enshrined discrimination by treating it as a favor, the same thing she’d been told her whole life. In the next decade, she would co-found the ACLU’s Women’s Rights Project and embark on an audacious legal strategy to transform the constitutional understanding of gender.

Two visionary lawyers, the leftist feminist Dorothy Kenyon and the queer Black theorist Pauli Murray, had long argued that gender discrimination violated the 14th Amendment’s equal-protection clause, which had previously applied only to race. The Supreme Court had never agreed. It hadn’t budged much from its ruling a century earlier barring a woman from practicing law because, per one justice, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” In her second brief to the Supreme Court, 1973’s Frontiero v. Richardson, Ginsburg would coolly observe that “the method of communication between the Creator and the jurist is never disclosed.”

Her very first brief, two years earlier in Reed v. Reed, hadn’t just cited Kenyon and Murray; Ginsburg listed them as co-authors. When fellow ACLU lawyer Burt Neuborne objected that that just wasn’t done, Ginsburg said she didn’t care. “Women generations before said the same things my generation was saying, but they did so at a time when no one, or precious few, were prepared to listen,” she later explained. Though often treated as singular, Ginsburg never stopped calling herself lucky. “I had great good fortune in my life to be alive and have the skills of a lawyer when the women’s movement was revived in the United States,” she told me.

But she was no mere cog in the machine. Ginsburg’s genius was to cogently and ambitiously argue for more than just fewer barriers for women to do paid work or be identical to men, though that was part of it. “There’s something wrong with that view of the world, a man’s world with small space in it for woman, relegated to her own confined corner,” she told Conversations With RBG author Jeffrey Rosen years later. But it didn’t end there. “Our argument: don’t stereotype people because they are male or because they are female,” Ginsburg continued. Before she became a justice, Ginsburg once corrected a dinner guest who spoke of her work on behalf of women’s liberation; in fact, she said, it was women’s and men’s liberation.

It was a holistic framework that was as bold as it was optimistic. And it was literally true, because throughout the 1970s, she’d brought cases on behalf of women barred from participating in public and economic life and men whose desire to be caregivers for their child or parent was similarly unrecognized. She already lived that reality at home, where, her daughter, Jane, once said, Daddy did the cooking and Mommy did the thinking.

The ability to turn ideas inside out and to invert expectations was also apparent in the case Ginsburg vocally wished would have established the constitutional right to abortion instead of the privacy-grounded Roe v. Wade. In 1972, she represented Susan Struck, a pregnant Air Force nurse who was forced to choose between having an abortion or losing her job. “Individual potential must not be restrained, nor equal opportunity limited, by law-sanctioned stereotypical prejudgments,” Ginsburg wrote to the Court in a tidy distillation of how she saw the world. Having been pregnant and forced off the job on a military base, she could not have failed to identify with her client. The law could not tell Struck how to be a woman, nor could it tell her how to feel or what to do about her pregnancy. (The military changed its policy and the case was dismissed as moot, to Ginsburg’s everlasting regret, and she continued to critique Roe as poorly reasoned and too sweeping until the end.)

That women were reasonable, equally flawed humans was central to Ginsburg’s feminism; she hated paternalism above all. In 1980, she was appointed to the D.C. Circuit by Jimmy Carter, but over a decade of Establishment living and the Reagan revolution could not dim her clarity when she was asked about abortion in her 1993 nomination hearing to the Supreme Court. “This is something central to a woman’s life, to her dignity,” she responded off the cuff. “It’s a decision that she must make for herself. And when Government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.” Of course, the president who nominated her, Bill Clinton, had proclaimed that “Ruth Bader Ginsburg cannot be called a liberal or a conservative; she had proved herself too thoughtful for such labels.”

At first, only the second woman to sit on the Court did prove herself to be cautious and deliberate. She understood the math of a Court that required five justices to do anything but lose in glory. Ginsburg’s most treasured majority opinion came early in her tenure, a 7-1 decision in 1996’s U.S. v. Virginia case forcing the Virginia Military Institute to admit women. She relished it because she could cite her own cases, nearly finishing what she had tried to accomplish in the 1970s in terms of the Court rejecting discrimination against women, and she could even count her former adversaries, like Chief Justice William Rehnquist, on her side. (Only Antonin Scalia dissented; Clarence Thomas recused.)

Majority victory would be fleeting. Within a decade and Sandra Day O’Connor’s retirement, she would be the only woman on the Supreme Court for three years, and she would begin issuing acid dissents to what was now the Roberts Court. The retirement of John Paul Stevens in 2010 elevated Ginsburg to the senior justice in the usual minority, as the Roberts Court began running roughshod over precedent, and she used the position to assign herself some of the most significant dissents.

The signature dissent collar, a glinty Banana Republic affair she got in a Glamour Women of the Year gift bag, came in 2012. She broke the record for dissenting from the bench — the once rare act of making everyone at the opinion announcements listen to your protest — and a thousand memes were born. Ginsburg was 80. She plainly appreciated the attention, but she made it clear to me more than once that she thought the numerous tattoos of her face went too far. “Why would you make something that can’t be removed on yourself?” she sputtered. She was still, in addition to everything else, a Jewish grandmother.

Ginsburg was exacting but not joyless. She wept at the opera and went to the theater as often as nightly. The drink she ordered at Kennedy Center openings was Campari-and-soda. She liked a good trip; the same year she broke her ribs and had cancer, she went to Lisbon, and in the couple years before that, all over Asia and Africa. Her favorite companions were boisterous charmers, like her husband, like Scalia. Into her 80s, she confirmed to me she could do 20 push-ups, but in answering this she was also careful: “We do ten at a time.” She laughed. “And then I breathe for a bit and do the second set.”

Despite how much of her life and love story she shared with the world and her embrace of public life, especially later on, she was paradoxically introverted. She was never anything but gracious in my presence, but it was always hard to know, as she stared into the middle distance between phrases, if you were boring her, if you should excuse yourself to spare her your company. Then she would say something that would make it clear she was someone on whom nothing was ever lost. Anyway, late in life, when she could decide whether to suffer fools, she rarely did anything or entertained anyone she didn’t want to see. Once, her personal trainer told me that after a few inscrutable sessions, he asked her executive assistant if the justice was happy with his work. She responded that if she weren’t, he would no longer be there.

As a mother, her daughter, Jane, dryly said in the documentary RBG, she was “exigent.” Among her demands of her son, James, when he was a teenager one summer was that he write an essay every single day. When co-author Shana Knizhnik and I teamed up to write Notorious RBG: The Life and Times of Ruth Bader Ginsburg in 2015, we politely pleaded for months for a scan of the original letter from Marty as he lay dying of cancer in 2010. You probably know the one; it begins, “You are the only person I have loved in my life.” At a late hour, she sent it to us, giving us a more indelible view of her than we even knew to expect. Where Marty had written that they had met at Cornell “some 56 years ago,” Ruth had a copyedit: “Nearly 60.” The next time I saw her, she made sure I’d seen it. No love note was immune from her precision. Even more than the ketubah she signed when she officiated at my wedding in 2017, I’ll treasure the edits she made to the wedding script we’d marked up for her. She was the toughest on her own words.

The Glorious RBG

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