Published: 21 September 2020
Last updated: 4 March 2024
SATURDAY STARTED AS USUAL, scrolling through Facebook past posts of cats, candidates, and coronavirus. Then came Bronwyn’s post, “RBG DIED!!! Fuck I’m screaming Fuck on Rosh Hashanah.”
As one does with social media, my reaction was, can this be true? There had been nothing in the Guardian. But Google quickly took me to the National Public Radio headline, Justice Ruth Bader Ginsburg, Champion of Gender Equality, Dies At 87.
It was then that, simultaneously, my heart broke and my stomach churned. The former, for the loss of a beloved champion of justice. The latter, for the dire implications for an already fraught US political environment. I wrote to my editor, “I can write about this, but not today. The emotions are overwhelming.” And then, I let the tears flow freely, along with millions of others for whom Ruth Bader Ginsburg meant so much.
Would that we could treat Ruth Bader Ginsburg’s death as we did that of Congressman John Lewis just two months ago. Lewis was a hero of the civil rights movement, much as Ginsburg was for women’s rights. Yet, with his death, there was no sense that the future of the nation suddenly hung in the balance. He could be mourned and celebrated as his legacy deserved.
But in the aftermath of Ginsburg’s passing, the stakes are too high. Many see in the Trump administration, and in his enablers in the Republican-controlled Senate and conservative-dominated Supreme Court, echoes of the early stages of authoritarianism in other times and other places. For them, Ruth Bader Ginsburg has been a real and symbolic finger in the dike.
Now, Trump is poised to make his third arch-conservative appointment to the Supreme Court, an appointment Senate Majority Leader Mitch McConnell is eager to confirm. For liberal and progressive Americans, merely grieving is an impossible luxury, one that we can ill-afford at this time.
Would that we could treat Ruth Bader Ginsburg’s death as we did that of Congressman John Lewis just two months ago. He could be mourned and celebrated as his legacy deserved. But in the aftermath of Ginsburg’s passing, the stakes are too high.
Ruth Bader Ginsburg made her mark both as a crusading attorney and as a meticulous and principled justice. Barack Obama described her as “a relentless litigator and incisive jurist”.
In 1973, at the crest of second-wave feminism, Ginsburg co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU). Through a series of legal challenges in the 1970s, Ginsburg played a path-breaking role in ending legal barriers to gender equality in the United States. She argued six cased before the Supreme Court, winning five of them.
Her former Supreme Court colleague, Justice Antonin Scalia, called her “the leading litigator on behalf of women's rights.” Gloria Steinem said, “Ruth’s work made me feel as if I was protected by the US Constitution for the first time.”
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Ginsburg was unapologetic in attributing her drive for justice to her Jewish upbringing. In a 2018 interview, she told The Forward, “I grew up in the shadow of World War II. And we came to know more and more what was happening to the Jews in Europe. The sense of being an outsider — of being one of the people who had suffered oppression for no … no sensible reason … it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”
It was at the outset of her career that Ginsburg came face to face with the fact that her Jewish identity was only one aspect of the discrimination she would face. In 1959, just out of Columbia Law School, having served on both Harvard and Columbia Law Review, she found that not a single law firm in New York would hire her.
“I had three strikes against me,” she told writer Philip Galanes. “First, I was Jewish, and the Wall Street firms were just beginning to accept Jews. Then I was a woman. But the killer was my daughter Jane, who was four by then.”
Thus was spawned the drive that would define her life: justice for women, whether equal treatment in the armed forces, equal admissions to elite public universities, requiring jury duty for women as was the norm for men, or equal drinking ages for men and women. She described her fundamental message to the courts as, “the gender line keeps women, not on a pedestal, but in a cage”.
When Bill Clinton appointed Ginsburg to the Supreme Court in 1993, she was considered a moderate. Over the years, as more liberal colleagues retired and the court drifted to the right, she became the leading liberal voice of dissent in a court dominated by conservatives.
Notable among these was in 2013, when the court struck down a key provision of the 1965 Voting Rights Act, meant to ensure fair electoral representation for African-Americans. Ginsburg pointed out that the lessened incidence of discrimination meant that the law was working, not that it was outdated. “Race-based voting discrimination still exists,” she wrote. “This court’s decision is like throwing away your umbrella in a rainstorm because you are not getting wet.”
When Bill Clinton appointed Ginsburg in 1993, she was considered a moderate. Over the years, as more liberal colleagues retired and the court drifted to the right, she became the leading liberal voice of dissent in a court dominated by conservatives.
Through these dissents, Ginsburg asserted herself as a great champion of justice, perhaps equal to the first Jewish Supreme Court justice Louis Brandeis a century ago. Justice William O. Douglas once characterised Brandeis as “a militant crusader for social justice whoever his opponent might be... dangerous not only because of his brilliance [and] his courage [but] because he was incorruptible,” words that might well be applied to Ruth Bader Ginsburg.
But that which, in the 20th century, might make for a great legal mind and jurist, in the 21st can also bring great celebrity. Thus it was, that in her ninth decade, Ginsburg was anointed “the Notorious RBG”, a sobriquet that came with viral memes, t-shirts, mugs, bobble heads, and a popular Saturday Night Live take-off performed by Kate McKinnon. RBG became the first Supreme Court justice to wear the title of “badass”.
Beneath the unlikely event of this petite, unassuming woman taking on the nickname of the intimidating rapper Notorious B.I.G. was the fact that Ginsburg had become an inspirational figure, particularly for young women first stepping into the reality that the struggle for women’s rights was far from complete. As one young woman commented in the documentary RBG, “whenever Justice Ginsburg wrote a dissent, the internet would explode.”
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Would that we could merely mourn for this unlikely hero and epochal figure. But this week, Ginsburg’s replacement may already be appointed all-too-soon in the Senate. Coming up, in just five weeks, will be an election whose legal challenges could make 2000’s Bush v Gore look like child’s play. That year, Democrats were dismayed and outraged when the court, by a 5-4 majority, halted the vote count in Florida, giving the victory to George W. Bush.
In 2020, legal challenges could arise as to the proper conduct of the election, the count of postal ballots, or the seating of electors in the Electoral College. If Election Day, November 3, arrives with a 6-3 conservative majority, none of those challenges will go the Democrats’ way.
On top of that, we already have a Supreme Court that has chipped away at voting rights, workers’ rights and women’s rights. The average age of the five sitting conservatives is 63, all with lifetime appointments. The next court will be around for a long time, which will give it the capacity to severely erode rights that many Americans have begun to take for granted.
Ginsburg’s death could galvanise the electorate like few events in recent memory. Democrats and independents, whose response to Joe Biden has thus far been tepid, may rise up to protect the legacy of Ruth Bader Ginsburg.
As the tears dry, well up, and dry again across America and the world, the words that Ginsburg’s death brings to mind are those of American labour activist Joe Hill. Facing execution in 1915, Hill wrote to union leader Bill Haywood, “don’t waste any time in mourning. Organise.” One might imagine similar sentiments coming from the woman who, in 2016, said “I can’t imagine what the country would be with Donald Trump as our president”.
But, presidential politics aside, for Jews who’ve wondered whether it is true that a person who dies on Rosh Hashanah is a tzaddik, a person of great righteousness, the loss of Ruth Bader Ginsburg on the eve of the year 5781 just might settle the question. After all, this was the justice who, on three walls her office, displayed artists’ renderings of Hebrew letters, the command from Deuteronomy: ‘Zedek, zedek, tirdof’ — ‘Justice, justice shall you pursue.’
The documentary RBG is currently streaming in Australia on Foxtel.
Photo: Ruth Bader Ginsburg at Georgetown University in Washington DC in February (Patrick Semansky/AP)
