“Real change, enduring change happens one step at a time.”
-Ruth Bader Ginsburg
Yesterday, we heard the sad news that U. S. Supreme Court Justice Ruth Bader Ginsburg had lost her battle with pancreatic cancer and had left us at the age of 87 after 27 years of distinguished service on the nation’s highest bench.
There are numerous political implications involved, here, on account of the vacancy left by Justice Ginsburg’s passing, but we will not be focusing on any of those issues in this blog.
Plenty is being said about that in the media, understandably, and yet it seems ghoulishly soon. It began almost the moment she passed, as it happens, following a statement by the Senate majority leader to the effect that he intended to ensure she was replaced without delay. I will permit myself only to wonder aloud where common decency has gone in American society, leaving my readers to answer that question for themselves.
For now, this unanticipated extra edition of “Penumbral Emanations” will honor Justice Ginsburg’s passing in the form of this, my own brief personal tribute. I don’t want to write a biographical sketch or a summation of her fascinating career. Her life and work speak for themselves and you can read about that anywhere.
What I would rather do is offer a few rather random reflections and observations of my own.
Earlier this year I watched the 2018 RBG biopic “On the Basis of Sex” starring Felicity Jones as Ruth Bader Ginsburg and Armie Hammer as her beloved husband, Martin Ginsburg, whom she married in 1954.
She was “Joan Ruth Bader” at that time. Martin Ginsburg, of course, died of cancer in 2010. He had, however, battled cancer much earlier on as a young law student at Harvard, where Ruth was also studying at the time. Martin had to undergo radiation treatment and was not able to attend classes during his illness.
The film very touchingly portrays Ruth self-sacrificially attending both her own classes and his, taking notes for Martin, reviewing his classes with him at home, and typing up his papers for him, all the while taking care of their three-year-old daughter.
After watching any historical or biographical film I tend to fact-check it for accuracy and I was pleased to learn that this chapter of their lives together was portrayed quite accurately.
I was, however, displeased to read that the instances of prejudice and resistance she met both as a woman and as a Jew were more frequent and pronounced than the film had time to portray. The film did not discuss, for example, that Ginsburg had applied to clerk for Supreme Court Justice Felix Frankfurter (more about him in some upcoming edition of this blog, to be sure), but that he rejected her application, outright…on the basis of sex.
As we know, Ginsburg would have the last laugh, there, with Bill Clinton nominating her in 1993 to replace outgoing Justice Byron White, the Kennedy appointee and star athlete who notably dissented in Roe v. Wade. Ginsburg, who had herself made comments critical of Roe, might never have gotten to the court without the maneuvering of husband Marty, who was determined to boost the wife who had boosted him during his law school days when he battled with cancer.
Ruth’s name was not at the top of Clinton’s list by any means, buried under a pile of other nominees on the president’s desk. A meeting was finally arranged with Clinton, however. After a 15 minute conversation with RBG, the president was sold.
Ginsburg would join Arizona Republican Sandra Day O’Connor on the bench as the second woman to sit on the Supreme Court. Although they were from opposite ends of the political spectrum, Ginsburg and O’Connor would tend to have each other’s backs.
Justice Ginsburg recalled to Supreme Court biographer Joan Biskupic an exchange she once had with O’Connor about the first majority opinion she was assigned to write as a neophyte justice. New justices were typically given easy unanimous opinions as their first assignments, however Chief Justice Bill Rehnquist had dropped a very complicated decision in her lap. “How can he do this to me, Sandra?” she vented. “You just have to do it, Ruth,” O’Connor replied.
She did, of course, and she would go on to author over 200 majority opinions and a plethora of dissents and concurrences.
Ginsburg would feel a bit alone on the bench after O’Connor retired in 2006 but would rejoice at the appointment of Sonia Sotomayor in 2009 and again at the appointment of Elena Kagan in 2010. Ginsburg once remarked that she took no small pleasure from watching Justice Kagan going toe-to-toe with Chief Justice Roberts, sparring with him behind the scenes when it came time to drafting opinions.
Three female justices were, in RBG’s opinion, a good start, but just a start. “When I'm sometimes asked when will there be enough [women on the Supreme Court] and I say, 'When there are nine,' people are shocked,” Ginsburg once famously stated, “But there'd been nine men, and nobody's ever raised a question about that.”
One of those men was ultra-conservative justice Antonin Scalia whose arrogance both Ginsburg and O’Connor could at times be exasperated by. RBG once commented that there were times she “wanted to strangle him.” In spite of their differences, however, Justices Ginsburg and Scalia quite famously became very good friends and were often seen attending the opera together, dining together, and going on various adventures together.
In 2014, following a private lunch with President Barack Obama at the White House, speculation arose that President Obama had perhaps asked her to step down to make way for a younger liberal justice. He had not asked her to, Ginsburg revealed, offering that “The President eats very quickly and I eat very slowly.” When asked why Obama had invited her for lunch, if not to ask her to step aside, she speculated that it was simply because the president liked her and wanted to have lunch with her. “I also like him,” she declared.
Justice Ginsburg was once asked about her ambition to become a Supreme Court justice to which she responded that her first choice would have been to be an opera diva. She loved the opera.
In court, however, Ruth Ginsburg was anything but a diva. She was quietly exacting in her questions and could be tough from the bench but she was never egocentric or theatrical. Scalia once observed that she could shake a lawyer who made a ridiculous argument before the court “like a dog with a bone.”
Justice Ginsburg’s love of opera, incidentally, was so persistent that she worked out while listening to it, according to her personal trainer, Bryant Johnson. “When you know opera like she knows it, it gets you going,” Johnson remarked, “It has a beat.”
RBG didn’t train in her old age simply to stay on the court in the hopes of outlasting the Trump administration, however; her motivation was down-to-earth and practical. “Exercise won’t make you live longer,” she said, “but it will improve your quality of life and enable you to get off the toilet by yourself.”
Ruth Bader Ginsburg was, in the words of Justice Sotomayor, “a pathbreaking champion of women’s rights,” not only on the high court but throughout her long career as a professor, lawyer, and judge. She was also, of course, a modern American icon…our “Notorious RBG”…and her name will be well-remembered.
Of all the tributes offered today by Justice Ginsburg’s colleagues, I think the most effusive and the most moving was written by the Supreme Court’s newest and perhaps most controversial justice, Brett Kavanaugh. I was so impressed by it that I am going to reproduce it here in full:
"No American has ever done more than Justice Ginsburg to ensure equal justice under law for women. She was a cherished colleague, and she inspired me, and all of us, with her unparalleled work ethic and devotion to the law. A meticulous and pathmarking judge, she held herself to the highest standards of precision and accuracy in her beautifully crafted opinions. And she inspired all of us to try to meet those same exacting standards. I learned from her principled voice and marveled at her wonderful wit at our weekly conferences and daily lunches. Justice Ginsburg paved the way for women to become lawyers and judges. She made it possible for women and girls like my daughters to compete on equal footing as student-athletes. When Justice Ginsburg was last in my office earlier this year, I pointed out a photo I keep of her standing with four women who served as law clerks in my chambers in my first term. As long as I am fortunate enough to serve on the Supreme Court, I will keep that photo prominently in my office as a continuing tribute to Justice Ginsburg and as a daily reminder to work hard and pursue equal justice. May God bless Ruth Bader Ginsburg."
I think it is entirely fitting to close this memorial issue with words of tribute from Westarctica’s own pioneering female jurist, Chief Justice Christine Wood:
“Ruth Bader Ginsburg remains an inspiration, forever a beacon of hope in uncertain times. It is a heavy loss that we are now without this pioneer who fought so ardently to bring about equality and justice. A legend of The Supreme Court of the United States but wholly respected all over the world, her legacy will be cemented in history to inspire those following in her footsteps.”