A new biography squares the decorous legal figure with the feminist gladiator.
https://www.theatlantic.com/magazine/archive/2019/01/ruth-bader-ginsburg-feminist-hero/576403/
Ruth Bader Ginsburg is not just having a “moment” in American feminist culture. She has rapidly become—in a time that craves heroines—the American ideal of power and authority for millions of women and girls. Beyond the movies (RBG, released in May, and On the Basis of Sex, out in December) and the biographies, not to mention the memes and T-shirts and mugs that proliferate like lace-collared mushrooms, Ginsburg at 85 is also the closest thing America has to the consummate anti–Donald Trump. Today, more than ever, women starved for models of female influence, authenticity, dignity, and voice hold up an octogenarian justice as the embodiment of hope for an empowered future.
The fandom can border on condescension—Twitter can be instantly short-circuited by news of her grueling workout regimen or a tart line in a dissenting opinion. Sometimes the combination of the genteel geriatric and the quasi-violent rap iconography affixed to the “Notorious RBG” persona seems an unholy marriage, as if we couldn’t quite love a feminist trailblazer without turning the 90-pound bubbe into a gangster. Squaring the careful public Ginsburg with the media creation of the present time can be challenging. Rap music deals in anger. The women of the Trump resistance are livid. Books about women and fury fill the tables in every bookstore. And yet, above all, Ginsburg models the fine arts of civility and diligent case citation. She is less a radical feminist ninja than a meticulous law tactician—and she has become what we dream of for our toddler daughters.
In a revealing new biography, 15 years in the making, Jane Sherron De Hart helps untangle the mystery of the decorous Ginsburg as feminist gladiator. A professor emerita of history at UC Santa Barbara, De Hart offers a picture of the most conservative radical in the women’s movement. She traces Ginsburg’s path from precocious Brooklyn schoolgirl to the most formidable women’s legal advocate in modern history, and no bras are burned, no political arrests are made, no Saint Crispin’s Day speeches are delivered along the way. Instead, De Hart scrupulously renders a rule-abiding, institutionalist, cautious lawyer and then judge who has managed to remake constitutional history precisely because of those qualities, not despite them.
In De Hart’s telling, Ruth Bader was a quintessential product of the post-Holocaust era, in which new-to-America Jewish families prized education and social justice. She was driven to achieve perfect grades by parents who valued brilliance over all else, and shaped by a cherished mother of Polish descent who died of cancer when Ruth was in high school. Celia admired many pathbreaking American and Jewish women but also insisted that her daughter “be a lady,” by which she meant—among the usual prim things—someone who suppressed strong emotions and upheld her “convictions and self-respect.” The most subversive part of this story is how perfectly conventional it was.
The young “Kiki” (nicknamed for her vigorous kicking as an infant) was a slavish piano-practicer, a compulsive reader, and, in her spare time, an occasional climber of garage roofs and thrower of rocks at the neighborhood baddies. A very, very good girl, Ruth understood early on that she could compete with the smartest boys on their own terms so long as she did the work flawlessly. At the same time, she grew up corseted by expectations that smart girls had also better twirl batons at football games and study in secret in campus bathrooms. Sober and modest throughout her academic career, she was dogged by complaints that she was “aggressive” and hyper-competitive. That she was film-star beautiful and impeccably turned out was surely both a help and a hindrance in her quest to be taken seriously as a student and as a young litigator.
In On the Basis of Sex, directed by Mimi Leder, film-star beautiful Felicity Jones plays the young Ginsburg as she embarks on a legal career in gender-rights advocacy. At first blush, the drama comes across as the most classic of 1950s family sagas, with Armie Hammer cast as young Ruth’s adoring husband, Martin Ginsburg, whom she meets at 17 on a blind date at Cornell and marries a month after she graduates. Yet this romance for the ages—which it certainly proved to be—was also a business partnership almost unrivaled in feminist history. They both went to law school, they both worked, they had a daughter and a son, and they tried their first big gender-equality lawsuit together.
Film and book each reveal the extent to which Martin Ginsburg devoted his life to ensuring that child-rearing, housework, and legal accomplishments were shared between them. (He did the lion’s share of the cooking—and, as the film portrays it, was the gentler, less demanding parent to their tempestuous daughter, Jane.) Their dedication was mutual. When he was diagnosed with cancer while attending Harvard Law School, Ruth kept up with his assignments and helped him with his papers. Traditional this was not: Marty’s insistence on seeing his wife as his professional and intellectual equal was inconceivable for the time, and even 50 years later, his breed of super-booster is hardly the norm. Ruth’s meteoric career was inspired and enabled by the rarest of male allies.
The rest of the world was not so accommodating, and Ginsburg coped with and chafed at, however quietly, the obstacles in her way. Her response, in De Hart’s portrayal, was intensity, as opposed to anger, because it was abundantly clear that anger would be disqualifying. (In On the Basis of Sex, she allows herself to vent her frustration only a few times—primarily at teenage Jane.) She was stellar wherever she was—ranked near the top of her class at Harvard Law, and on the Harvard Law Review, and then tied for first place in the 1959 graduating class at Columbia Law School, where she transferred after Marty, already armed with his law degree, got a job in New York. But she could barely win a clerkship and could not land a law-firm job. “To be a woman, a Jew, and a mother to boot,” she would later quip, was “a bit much.”
Ginsburg accepted a job teaching at Rutgers Law School and soon proposed a course on gender-discrimination law (which a male faculty member at NYU had earlier suggested would be as useful as a class on bicycle law). Before long, she was an expert on the subject. When Marty happened upon a tax-court ruling in 1970 about a man named Charles Moritz, a grand litigation strategy was born in the Ginsburg household. The IRS had determined that Moritz, an unmarried salesman from Colorado, couldn’t deduct the salary he paid a nurse who cared for his invalid mother because he was a son, not a daughter. This policy, the Ginsburgs contended, assumed that women were caregivers while men worked—a gender stereotype that violated the equal-protection clause of the Constitution. Backed by the American Civil Liberties Union, their appeal—at the dramatic heart of On the Basis of Sex—became the template for the constitutional revolution that demolished hundreds of laws rooted in archaic ideas about women’s limitations.
In 1972, Ginsburg was chosen to lead the ACLU’s newly created project on women’s rights. Building on Moritz v. Commissioner of Internal Revenue, Ginsburg got to work, in the process dismantling assumptions about women and the ways in which they worked, were paid, and were entrusted with responsibility. From De Hart’s accounts of appeal after appeal, oral argument after oral argument, the enormity of Ginsburg’s project emerges: Every case was selected and framed as part of a careful campaign. In a battlefield of words, laws, and doctrine, Ginsburg was the general. But hers wasn’t an angry, violent advance. Her ambitious approach was designed to inch the Supreme Court into requiring formal legal equality for women. And at every turn, Ginsburg also had to face professional slights and sexist assumptions within her own profession, directed at her personally. In a chilling moment in the film, the legal director of the ACLU (and her friend) snarls, during a disastrous practice session for an oral argument in Moritz, “Would it kill you to smile?”
The movie version of Ginsburg hardly sleeps and forgets to eat. She drags her daughter to cultural events. As De Hart reveals, Ginsburg’s entire professional world was a function of her meticulous mind, her legal plan, and her workload. Subordinates initially found her frosty and intimidating. Each brief that Ginsburg produced was flawless. She didn’t laugh much or make idle chitchat. Bubbling hotly under the narrative is a tightly controlled Ruth forced to bide her time, watch her tongue, measure her tone.
In her first oral argument before the Supreme Court, in January 1973, in a case involving unequal spousal benefits for women in the armed forces, Ginsburg wore her mother’s antique gold earrings and matching circle pin on her suit. Chief Justice Warren Burger recognized her as “Mrs. Ginsburg.” She spoke deliberately and carefully for her allotted 10 minutes. She also spoke without notes. Not a single justice interrupted her with a question. Justice Harry Blackmun’s notes reflected that he found her “very precise” but also too “emotional.” Jones’s film version of the justice-in-the-making captures the same paradox: a woman crackling with frustration at structural sexism while practicing her smile in the mirror before oral arguments.
And let’s recall that Ginsburg set out not to dominate male power but to cajole it into sympathy—to, as De Hart puts it, “lead the judges to the desired judgment in a way that would be comfortable for them.” Part of the strategy of the Moritz case involved showing male judges a male victim of sex discrimination, on the theory that they would more readily comprehend the issue this way. Time and again, she had to explain that keeping women off juries, or preventing them from administering an estate, wasn’t protecting them, as judges might have assumed; in fact, it was harming them.
De Hart well understands that this project is itself sexist—feminist litigator as kindergarten teacher, gently persuading, carefully encouraging male empathy—and that Ginsburg succeeded by being the very opposite of a firebrand. De Hart also appreciates that Ginsburg’s approach was almost her undoing in the generation that followed. Feminists struggled with this very problem as they debated whether to support her quest, in 1993, to be confirmed as the second woman justice on the U.S. Supreme Court. In Ginsburg’s 13-year tenure on the D.C. Circuit Court of Appeals, she had shown herself to be a moderate, a centrist, an incrementalist. Prizing friendships with her colleagues Antonin Scalia and Robert Bork, she was a team player. Legal arguments about women’s equality that had been radical in the ’70s looked like half measures in the ’90s, and Ginsburg’s feminist critics in the legal academy found her pioneering work to be “assimilationist in outlook.” De Hart describes how she was handily dismissed as white and privileged, advancing a view of equality that “opened doors only for those with the resources sufficient to play by men’s rules.”
Twenty-five years later, in the rush to lionize RBG, those critiques—that she was, as De Hart characterizes it, “behind the bench and detached from the fray”—have largely fallen away. But if Judge Ginsburg was already frustrating cutting-edge feminist thinkers in the 1990s with her formalistic get-along tactics bred in the law schools and legal-advocacy trenches of the 1950s and ’60s, what could possibly explain the rock-star redemption Justice Ginsburg has achieved in our time? In a 1988 keynote speech at the University of Chicago, Ginsburg herself supplied a historical perspective that has acquired more salience these days, when progress in the battle for women’s rights can feel so tenuous. She observed that
the litigation of the 1970s helped unsettle previously accepted conceptions of men’s and women’s separate spheres, and thereby added impetus to efforts ongoing in the political arena to advance women’s opportunities and stature. An appeal to courts at that time could not have been expected to do much more.
And in no small part, Ginsburg herself has changed—or rather, her public voice has. De Hart details the ways in which Ginsburg has emerged in recent years as a newly vocal critic of the conservative majority’s systematic dismantling of voting rights, workers’ rights, and reproductive rights. She dissents frequently and furiously; the era of Notorious RBG was born of these dissents. Yet Ginsburg has cited with approval an aphorism from Justice Benjamin Cardozo: “Justice is not to be taken by storm. She is to be wooed by slow advances.” Though Ginsburg occasionally allows herself to write passionately, and takes in stride the RBG tattoos sported by her youthful followers, she doesn’t actually much care for public anger and she doesn’t really like tattoos. She loves opera, which has always puzzled me—an art form that seems fusty and old-fashioned, even for her. But perhaps opera is the perfect metaphor for the woman who has devoted her life to containing and channeling the scorching passion she feels for equality and human dignity into precise language and lasting legal doctrine.
Ginsburg’s enduring feminist secret seems to be that, even in a time of reality-show presidential rule and shifting narratives, she remains unwaveringly who she has always been—as controlled, at the core, today as she was in the now-vanished world of postwar Brooklyn. I’m not sure that Ruth Bader Ginsburg has “caught up” to modern feminism, or that it has caught up to her. De Hart quotes Judge Harry Edwards, who sat with Ginsburg on the D.C. Circuit Court of Appeals, and who sums up the clinching insight I took from De Hart’s ample portrait: “Ruth … is always the same in whatever setting you encounter her. She does not posture for family, friends, acquaintances, or onlookers.”
I appreciate that steady Ginsburg—who has always toiled within the guardrails of the law and the Constitution—far more than the gangsta-feminist we’ve turned her into. She is a bit of a dork and a lot of a grind and a perfectionist and an idealist. She believes in great writing and grand music, and that the pursuit of justice is a holy project seared into the DNA of her Jewish ancestors. She believes that the vulnerable are rarely seen and heard by the powerful, and she uses a quiet voice to paint “word pictures” (a term she learned studying literature under Vladimir Nabokov) of their lives and worries. Ginsburg eschews drama and self-promotion, and she walks and talks at a snail’s pace, but she has outlasted her academic, jurisprudential, and political critics in ways that make her singular rather than out of step: She is real. She is smart. She still believes in the transformational power of the rule of law. That is a lot right now—quite possibly enough.
This article appears in the January/February 2019 print edition with the headline “The Mysterious RBG.”
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DAHLIA LITHWICK writes about the courts and the law for Slate and hosts the podcast Amicus.
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