I recently saw the documentary RBG about Justice Ruth Bader Ginsburg, her personal and professional background, her appointment to the Supreme Court in context, and her work since that time. While it wasn’t quite as gripping (believe it or not) as the Fred Rogers documentary, it was impossible to leave the theatre without more appreciation for all this woman has done to improve equality for all citizens, both men and women, and to ensure equal protections under the law.
In 1993, Ruth Bader Ginsburg was the second ever woman who became one of the Supreme Court Justices (after Sandra Day O’Connor). RBG was born in 1933 to Russian Jewish immigrants. She graduated from Harvard Law School as one of only nine women in a graduating class of nearly 500. Despite being among the top 25 students in her graduating class, the Dean scolded her (as well as other female students) for taking a seat away from a man who might have a family to provide for, asking “How do you justify taking a spot from a qualified man?” She graduated in 1959, tying with another student for the top position.
“My mother told me two things constantly. One was to be a lady, and the other was to be independent. The study of law was unusual for women of my generation. For most girls growing up in the ‘40s, the most important degree was not your B.A., but your M.R.S.” RBG
She married her college sweetheart Marty; together, they raised two children, but she was the more driven one, the workaholic who was tireless in pursuit of her clients’ interests. Marty was happy to support her ambitions and proud of her accomplishments. She was the serious one; he was jovial and gregarious. He was a fantastic cook whereas she had no business being in the kitchen. In 1960, armed with her hard won law degree, she found it difficult to be hired, despite the strong recommendation she had from one of her professors who was later the Dean of Harvard Law School. Future Supreme Court Justice Felix Frankfurter specifically rejected her for a clerkship based on her gender, despite her strong academic credentials and performance. Perhaps because of the gender discrimination that was a barrier to her in the US, she learned Swedish to co-author a book on civil procedure in Sweden. While in Sweden, she observed that women were nearly a fourth of law students, and one judge Ginsburg observed worked while eight months pregnant. This experience highlighted the discrimination and inequality she saw when she returned to the US.
“If you’re going to change things, you have to be with the people who hold the levers.” RBG
“You think about what would have happened … Suppose I had gotten a job as a permanent associate. Probably I would have climbed up the ladder and today I would be a retired partner. So often in life, things that you regard as an impediment turn out to be great good fortune.” RBG
“All I can say is I am sensitive to discrimination on any basis because I have experienced that upset.” RBG
“Feminism … I think the simplest explanation, and one that captures the idea, is a song that Marlo Thomas sang, ‘Free to be You and Me.’ Free to be, if you were a girl—doctor, lawyer, Indian chief. Anything you want to be. And if you’re a boy, and you like teaching, you like nursing, you would like to have a doll, that’s OK too. That notion that we should each be free to develop our own talents, whatever they may be, and not be held back by artificial barriers—manmade barriers, certainly not heaven sent.”
“Women will only have true equality when men share with them the responsibility of bringing up the next generation.”
“[J]ustices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
“When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.” RBG
She was nominated to the Supreme Court by Bill Clinton in 1993 after a recommendation by US Attorney General Janet Reno and a suggestion by Utah’s own Orrin Hatch. Hatch’s admiring comments about Ginsburg were peppered throughout the documentary. She won the nomination despite devoting a significant amount of time in her Senate hearing to the topic of abortion, a topic ill-suited to gaining support among conservatives who might have been likely to oppose her nomination for partisan reasons anyway.
“The emphasis must be not on the right to abortion but on the right to privacy and reproductive control.” RBG
Ginsburg also saw the injustice of anti-abortion laws that disproportionately harmed those most likely to need them: women living in poverty. She noted that
“Contraceptive protection is something every woman must have access to, to control her own destiny.” RBG
And she further noted that
“We will never see a day when women of means are not able to get a safe abortion in this country.” RBG
This opinion–that all women must have the ability to control their own reproductive activity–is one she still holds firm, including in her dissenting opinion on the Hobby Lobby ruling:
“I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief.” RBG
Ginsburg worked with her fellow Justices, regardless of their individual views and was a particularly close friend to conservative Justice Scalia who shared her love for Opera. They developed a lasting affectionate bond despite the ideological gulf that separates them. As a Supreme Court Justice, Ginsburg has used dissenting opinions to articulate a clear position on which all dissenting justices can agree. It’s an interesting approach, one that has led to faster progress because it puts a clear stake in the ground, one that is practical and not too far-reaching, a harmonization of multiple perspectives.
“Dissents speak to a future age. It’s not simply to say, ‘my colleagues are wrong and I would do it this way,’ but the greatest dissents do become court opinions.” RBG
She elaborated in another interview about why she still felt hopeful when (her) dissenting opinion did not persuade the majority of the other justices:
“I’m dejected, but only momentarily, when I can’t get the fifth vote for something I think is very important. But then you go on to the next challenge and you give it your all. You know. that these important issues are not going to go away. They are going to come back again and again. There’ll be another time, another day.” RBG
This is a helpful perspective for those of us who are progressive in such a conservative church as ours. Having served for so long on the Supreme Court, she also has a lot of valuable observations about being a Justice.
“We care about this institution more than our individual egos and we are all devoted to keeping the Supreme Court in the place that it is, as a co-equal third branch of government and I think a model for the world in the collegiality and independence of judges.” RBG
After the documentary came out, two new impending vacancies to the Supreme Court came open, and Trump has nominated Brett Kavanaugh, causing a surge of hand-wringing among liberals who fear he was chosen because of his record showing he believes in expansive executive power and that sitting Presidents should not be burdened by legal proceedings against them as well as the possibility that he may overturn Roe v. Wade, paving the way for states to make abortion illegal once more. I hope she’s right in her view that Justices can and do change their views over time:
“[J]ustices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.” RBG
Kavanaugh claims to be a constitutional originalist, meaning he favors attempting to interpret the constitution in its original context according to the framers’ intent rather than through the lens of today’s society. This is a stark contrast to Ginsburg’s preference for a modern interpretation. In fact, she notes that the constitution is not the ideal foundational document to govern our day. After all, it was written by aristocratic landowners to protect their interests and didn’t consider women or blacks as people.
“I would not look to the US Constitution if I were drafting a constitution in 2012.” RBG
When confronted about their willingness to vote for Trump, many of my Mormon friends claimed that it was all about Supreme Court Justice picks for them as opposed to an actual liking for the candidate; they hope for more conservative laws that protect the financial interests of businesses and focus less on social justice and equality or they wish to suppress social changes that they dislike such as anti-discrimination, equal pay, or gay marriage (the flip side of “religious freedom”).
- How do you feel about Kavanaugh as a Supreme Court Justice pick?
- Do you favor a conservative Supreme Court, a liberal one, or a diverse one?
- What types of cases do you think are likely to make it to the Supreme Court in the coming 5-15 years? What types of progress or regress do you see?
- Are you a fan of Ruth Bader Ginsburg? Why or why not?
Discuss.
[1] You just got Gins-burned! In the documentary, we see RBG watching Kate McKinnon’s portrayal and laughing at just how different from this the soft-spoken Ginsburg really is.
Wheat & Tares 
I did not know all this about her. Thank you!
Lovely write up. Personally, I prefer as balanced a court as possible with many ideologies represented. In a perfect world it would be made up of thoughtful moderates with only 2 (one swinging each way) extremists. The problem I see is that most people see a SC pick as an opportunity for a ‘win’ for their side rather than choosing the best qualified person for interpret ting/judging the difficult situations placed before the court.
This gave me a whole new perspective on RBG.
“In fact, she notes that the constitution is not the ideal foundational document to govern our day.”
I would agree. Our constitution is but a framework—leaving large areas for differing interpretation. It is, in fact, one of the shortest in the world. (Credit card terms and conditions statements are longer).
As RexT, I would prefer moderates, with one somewhat more extreme from each side of the political spectrum.
Will the day come when computer modeling could reveal the potential outcomes/consequences of possible decisions? What would be done with that information?
I don’t understand the conservative view of a society where (crony) capitalism should run our society/country and we ignore the fact that luck plays a big role in life success, beginning with the environmental and genetic circumstances of our birth.
I think how we treat the less fortunate is more a test for us than a test for that less fortunate individual.
Thanks for sharing. I love learning of people’s backgrounds, which are always complex, defying the simple caricatures we are tempted to deploy during debate.
How appropriate that your picture shows Justice Ginsburg wearing a crown–because that’s a better symbol of her view of her role as a judge than a black robe.
Our only safety as a democratic republic is for the court to restrict itself to the texts of the statutes and the Constitution that it is charged with interpreting, and to leave formulation of policy to the democratically elected representatives of the people.
But, I think it would be good to add one more RBG quotation to those you quoted in the OP:
“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.”
All we have to do is decide which populations we don’t want too many of, Justice Ginsburg! I have a hunch that my choice might be different from hers.
Lois asks “I don’t understand the conservative view of a society where (crony) capitalism should run our society/country and we ignore the fact that luck plays a big role in life success”
I agree that luck plays a big part in most people’s lives particularly at the beginning. It was (probably) luck that birthed me in the United States in the 20th Century rather than Borneo at any century.
As set up, the question is a bit of a “straw man”, something you create and expect someone else to defend. Two important and relatively unrelated concepts exist in your question: (1) purpose of society and (2) purpose of the economy.
Society is an extension of clan, which itself is an extension of family. Family exists to create and protect the next generation; clan exists to protect families and society exists to protect clans, hence “national defense”, military, borders and all that.
The economy exists to maximize personal and social production. The principle weakness of Socialism is inefficiency because the bosses tend to make incorrect decisions. It a relatively free market economy the decision what to make and how much of it is not dictated by the State, but by millions of entrepreneours that see a need and attempt to fill that need. Prices are set, not by government, but by your willingness to sell and Tom’s willingness to buy.
In a conservative world, government wouldn’t “run” anything but the military and enforce contracts. (more or less).
Business owners run their businesses, parents run their families, and so on. What is left for government to “run”?
Mark B.’s critique of judicial activism is stale. The most activist judges on the bench today are the so-called “conservatives” who are steadily nullifying statutes protecting voting rights, labor rights and free elections. They are taking away the right to sue and the right to trial. They are giving unfeeling, immortal corporations the same rights as real people. They are turning the First Amendment into a vehicle for privileging money over individual speech. These activist judges are doing all of this in the service of their own special interests: rapacious businesses and social conservatives who, as Ginsburg points out in the OP, seek to foist their religion on those who are poorer and more vulnerable. It is no longer credible for “conservatives” to complain about activist judges.
What is really needed, of course, is a more mature view of the judiciary in American politics. There is no such thing as pure originalism. In constitutional law and in the most far-reaching statutory cases in the Supreme Court, there are no such things as “neutral umpires.” Those who continue to spout this type of criticism are merely making partisan commentary.
If RGB had wanted her judicial philosophy to be perpetuated into the next 20-30 years of Supreme Court jurisprudence , she should have tendered her resignation during the Obama administration when his nominee was sure to be confirmed. I’m surprised she hasn’t taken more criticism for her adamant refusal to do so.
As it is, the odds are good that Trump will determine her successor, who will almost certainly contribute to bending the arc of the Court towards a different view of morality.
Loved the doc, and highly recommend it to anyone who has not seen it yet.
RBG is a great advocate for what she believes in.
I’ll still laugh though when she passes in the next year or two and Trump gets to appoint her replacement. All my liberal friends will have a collect stroke.
Thirty years ago, someone with Brett Kavanaugh ‘s credentials and experience would have been overwhelmingly confirmed to the Supreme Court….much like Ruth Bader Ginsburg was in 1993 (she was confirmed by a 96-3 vote in the Senate). The Court has always reflected U.S. society–albeit sometimes lagging by several years or decades on particular issues–and the polarization and politicization of the Court is no different. The Bork hearings in 1987 were a watershed in that regard, but subsequent controversial decisions (e.g. Bush v. Gore, Obergefell, Windsor, Citizens United) by closely divided Courts have raised the stakes astronomically for nominations/confirmations. Add that to the inability of people on either side of the political spectrum to understand or accept the validity of opposing viewpoints–not to mention the overwhelming emphasis and focus on a single issue, abortion–and you have the highly dysfunctional status quo in 2018.
More generally, however, the problem is not so much with “original intent” or a “living Constitution.” The real issue is that the Court has become a de facto legislative body as Congress has abdicated its constitutional responsibilities. Both conservatives and liberals rely on the judicial branch to achieve their goals to an increasing extent, which totally ignores the intent of the constitutional separation of powers. Regardless of where you are politically, that should be of significant concern.
On Ginsburg and the documentary, it is definitely worth your time….wherever you are politically. She is a fascinating woman who has achieved the most unlikely cult-figure status of any public figure in recent memory. And whatever one’s views of her political ideology or decisions during her time on the Court, she has dedicated her life to the U.S. justice system, which is laudable.
never forget: I wouldn’t count RBG out yet. She has taken flak for not retiring during Obama’s term (mostly from the left who don’t want a conservative pick), but honestly, she appears to be in fantastic health with a lot of energy, and she says she will retire when she no longer has the stamina. There’s something admirable about that stance. She’s not acting like a tool for either party in taking that stand.
One of the worst justices ever
For Ginsburg, the law is an instrument toward political ends. When she declared in her 1993 confirmation hearing that her reading of the Constitution relied on “the climate of the age,” she was offering not an interpretive rule, but a political one. The jurist who thinks there are “populations that we don’t want to have too many of” (three cheers for Roe for helping out with that!) is really just waiting for the climate of the age to catch up with her fevered pursuit of justice. Someday we yokels will see that a good eugenics program is just what we need.
She was a good enough Justice for Scalia but not, apparently, for the folks who can reduce the US Constitution to two principles: guns for all and forced pregnancies for those who don’t have the money for the expensive private abortions. …er…appendectomies.
There is an interesting book on this topic: Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World by Linda Hirshman. It discusses the careers of both women, although I think the RBG portions are much more interesting. I noticed also that a disproportionate number of her important cases as an ACLU involved Mormons and Utah culture. Ironic that Mormon patriarchy provided Ginsburg so many steps in her career ladder. Unfortunately I can’t remember any specific cases right now.
I’m disappointed that the court and the selection process appear to be getting more partisan. It has always been partisan, but it seems like it’s worse. The Warren court, during the civil rights era, sought unanimity on issues regarding segregation and civil rights, with great success. I haven’t seen any effort to that end from the court in recent memory.
That quote about “populations that we don’t want to have too many of” is so obviously misinterpreted it’s not worth time arguing about. Look it up (but not on Breitbart or it’s counterparts) and it can be seen she wasn’t talking about her own opinion.But I don’t expect anyone who wasn’t already skeptical about the quote to change their opinion.
Would be interesting if the 12/15 had apostles write dissenting opinions.(Like the good old days of Orson Pratt and Talmage).
Thanks.I am a fan. I so want to see the documentary, as well as “On the Basis of Sex”.
As for her not retiring, ummm, Merrick Garland. Long may she serve.
When the Supreme Court makes a decision, who can stand in the way of that? The only real ‘Check and Balance’ on the Supreme Court is the constitution. If the constitution means whatever an activist court wants it to mean, then there isn’t really any check or balance on the Supreme Court. I think we need an activist legislature, not an activist court (in either political direction). Claiming that there are activist conservative judges is not the answer. None of the judges should be activist. They should simply interpret the laws passed by congress and nothing more. Progressive ideas should be pushed through congress to become law. Progressives may be tempted to think that an activist progressive court is a ‘win’. But in the long run it will be a loss for all of us when the courts are so out of control that we no longer have a predictable constitutional framework of law.
I have not been a big fan of Justice RBG in her career on the Supreme Court. Angela points out one of the best parts of her tenure, when she basically refused to retire before she was ready in order to allow Obama to appoint her replacement. Some have theorized that she thought that Hillary would win and could then retire this year or so. I suspect she just wants to continue on the bench.
The worst rulings from the court have been several 5-4 decisions that upend 200+ years of understanding of the constitution. Obergefell is the most recent prominent example of this. I can see this decision being overturned soon.
I do not see Roe v Wade being completely overturned. Probably they will allow some additional state level restrictions. The laws that invite tons of hyper political lawsuits, like the extra restrictions of a few states RE: the Voting Rights Act are likely to see significant modification from the new SC. More power to the legislatures and less to the courts is one of the principles of the conservatives on the court.
On a separate, but related note. I have no doubt that one of the main issues that got many voters who were wary of candidate Trump to vote for him in November 2016 was the impact on the federal judiciary, especially the supreme court. The overpoliticization of the courts by (mostly) liberals lead to that issue being extremely high profile for many who otherwise would not have voted for Trump. Well, what comes around goes around. Just ask Senator Harry Reid.
Thanks for the nudge to go see this while I can, in the theater, where my ticket purchase carries the tiniest bit of weight. It could add up to…something.
Reading the comments, I had two thoughts. First, compassion for vulnerable and poor women in the future, whose (potential) inaccessibility to a safe, legal, needed medical procedure will drive many to desperate and unsafe solutions. Wealthy women and wealthy men who are partners of vulnerable women will still find access to relatively safe medical care. Politics is not a game in every respect. Second, the laughable notion that the overpoliticization of the courts has been done by (mostly) liberals. As an independently registered observer, the overpoliticization of the courts has been executed by people of both parties who consider politics as some sort of game, with no compassion or consideration for the vulnerable people affected.
I made a serious omission in my comment: my admiration for RBG increases with each new thing I learn about her. We don’t align politically in every instance, but she is exemplary as someone who is aware of how her actions affect her formidable sphere of influence, both as political gamesmanship, and as something which impacts real people’s lives. Any future justice admitted to the Supreme Court, regardless of their leanings, would not go wrong to study her approach to judicial service.
A while back the New York Times (NYT) wrote a story titled “Which Supreme Court Justices Vote Together Most and Least Often” https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html
I was struck by how often the justices agreed with each other. When the article was written, the most divergent justices, Ginsburg and Thomas, still had voted together 66% of the time. Ginsburg’s agreement with Roberts, Scalia, and Alito was 71%, 70%, and 67% respectively. Thomas’s agreement with Sotomayor, Kagan, and Breyer was 71%, 71%, and 72% respectively. At their sides of the ideological spectrum, Ginsburg voted with Sotomayer, Kagan, and Breyer 90%, 93%, and 88% respectively while Thomas voted with Roberts, Scalia, and Alito 90%, 91%, and 91% respectively. The disagreement between the left/right ideological divide appears to only matter in about 2 out of 10 cases. For that term, the NYT pointed out “The court is indeed often united, and it will end this term with unanimous decisions in more than half of its cases.” Who knew?
Since I read that article, I haven’t been as worked up about the court as I was when I was under the impression it was more divided. I agree with DJ that “the Court has become a de facto legislative body”, but it’s a pretty congenial legislative body.
It is true the Supreme Court Justices agree more than disagree on a majority of cases. We don’t know that because it is only the high profile and highly political cases we hear about.
Contrary to what some say, the Supreme Court does have checks and balances over it, but they are few and sometimes extreme.
Obviously it only happens over time and it isn’t an immediate remedy, but the other branches jointly determine who will be on the court. Thus the court can be influenced over time to change direction and more accurately reflect the long-term will of the people, without responding to every political whim. Stare decisis is important, but doesn’t apply to all situations.
The extreme version of this is court packing. The number of justices is not fixed in the Constitution but is determined by statute, which can be changed to add more justices who are more in line with the desires of the other branches of government. There have been threats to do this in our nation’s past. Much like the filibuster, a universal agreement to not do this benefits everyone. However, like the death of the filibuster, court packing could be used for partisan reasons, which later come back to haunt the party responsible.
Court decisions are based on the law — SCOTUS doesn’t exclusively hear cases that can only be resolved with an appeal to the Constitution. Even when the Constitution is implicated, if they can solve the issue at hand without going there, they don’t. This also means that the legislative branch has the ability to check the courts by simply changing the law. At the extreme end of this, the Constitution can be amended.
The court also has some concerns regarding its legitimacy. If the decisions they make are untenable, they have no power to enforce them. They rely on the executive branch and a host of state and local agencies to enforce their decisions, not to mention the willingness of lesser courts to apply their decisions to cases that haven’t yet percolated up to them. The justices are necessarily insulated from the whims of the other branches, but they also rely on them to get anything done. They have no power, only judgment. If the decision is bad and it is politically tenable, bad decisions can be ignored without consequence. Not only is it bad for them to become irrelevant on any single decision, a pattern of bad decisions can also establish a pattern of ignoring them. The necessity of the court being seen as legitimate can play into how they respond to threats to ignore decisions or pack the courts. The court is political when it necessary to be so.