Watch out. She’s here.
The liberals’ avenger. The trailblazer calling the troops to arms. The ultimate feminist gladiator. The Face of the Resistance. The embodiment of the Anti-Trump cause.
Who is it??! you cry. It’s The Notorious RBG, ofc. A genteel, grey-haired, geriatric gangster. A 5’1″, bespectacled, softly-spoken, Jewish octogenarian judge. The new high priestess of progressive politics. It’s Supreme Court Justice turned pop-culture icon, Ruth Bader-Ginsburg.
Chief Justice Ruth Bader Ginsburg has, in the last few years, become a viral sensation. It all began with her crushing dissent on the Shelby County v. Holder case, which constituted a major attack on voting rights. Inspired by her protest, law student Shana Knizhnik launched the Notorious R.B.G blog. RBG was rapidly memefied across the Internet. Soon she had her own line of merchandise and memorabilia. RBG t-shirts, RBG mugs, RBG yoga mats – and replicas of her iconic beaded jabot too, obvs. You can also buy RBG tarot cards, Halloween costumes, and even an RBG hot-sauce named ‘Supremely Hot: Roastin’ RBG’. Devoted followers sport RBG tattoos, while the Chief Justice’s daughter-in-law, soprano Patrice Michaels, wrote a collection of songs titled The Notorious RBG in Song. Books have appeared with titles such as The Unstoppable Ruth Bader Ginsburg and No Truth Without Ruth. Fans covet news of her gruelling workout – proof that her formidable mind is equalled by a formidable body. And, in the last year, there have been two films about her: a Hollywood biopic starring Felicity Jones and the award-winning documentary, RBG. There’s no doubt about about it. RBG is a Big Deal.
Of course, Ginsburg is perfect material for a liberal, feminist icon. She’s fought unflaggingly for gender equality throughout her sixty-year career. Beginning in Harvard Law School, where she was one of nine women in a class of ﬁve hundred, she was the ﬁrst female member of the Harvard Law Review. In 1972, she co-founded the American Civil Liberties Union women’s rights project. She was the ﬁrst female tenured professor at Columbia Law School. Between 1973 and 1975, she argued six gender discrimination cases before the Supreme Court, and won ﬁve of them. And then, in 1993, she was appointed to the Supreme Court. She’s the feminist dream!
So what’s the problem?
Well, firstly, she’s old. Sorry, but it’s true. She recently turned 86. She’s had cancer twice, and has recently had surgery to remove further cancerous nodules, discovered after she fell in her office last November, fracturing three ribs.
She continued to work during her absence and her personal trainer promised she was fit as a fiddle. Hundreds attended the #PlankLikeRBG event outside the Supreme Court to celebrate her birthday and physical and political prowess. Because nothing says revolution like planking.
But the fact remains, if she falls sick in the next two years and has to retire, there will be problems. Because who’ll be choosing her replacement? Yep. The world’s absolute worst orange villain, Donald Trump. This will leave the Court with a 6-3 conservative majority. Hmmm.
Why didn’t she retire under Obama, when he could have chosen her replacement? Many beseeched her to do so – and lament her failure to have done so now. While she herself has said that she intends to spend “at least five more years” on the court, this is still a scary prospect. Ruth! What have you done?!
Of course, that’s the inherent problem with life tenure for Supreme Court Justices and has lead some to call for 18-year limits to terms. Currently, presidents are given unequal sway over the political leaning of the court, with some able to make multiple appointments, others none at all. Justices plan their retirement strategically, according to who’s in power. And presidents are inclined choose nominees who are young and fit, rather than good justices.
But this isn’t the only shade being thrown on RBG…
Is she really radical at all?
Ruth is hardly your classic feisty firebrand. She’s modest, meticulous, rule-abiding, and cautious. The disparity between her and her meme’s namesake, Biggie Smalls, was never clearer than her words, “When a thoughtless or unkind word is spoken, best to tune it out. Reacting in anger or annoyance will not advance one’s ability to persuade.” Not exactly Biggie’s style.
Her work in the courts reflects this, with her slow coaxing of opponents. As De Hart notes in her biography of the justice, she “leads the judges to the desired judgment in a way that would be comfortable for them.” Feminists have struggled to reconcile this gentleness and willingness to bide her time with Ginsburg’s role as pioneer of gender rights litigation. She seems content to play the game by men’s rules, rather than re-writing the rules completely.
And then there’s the uncomfortable idea too that liberals have been quick to embrace her because…well, she’s very lady-like. She likes opera and she wears lace. She’s not raging, violent, or scary. As far as revolutionaries go, she’s a highly palatable one.
Plus, while RBG has spoken out against voter suppression – dissenting in Shelby County vs. Holder – some argue she hasn’t done enough. Indeed, in a draft of her Bush v. Gore dissent, Ginsburg suggested possible black-voter suppression in Florida, but when Justice Scalia frowned upon it, she removed the footnote. This is in addition to her comment on NFL players refusing to stand for the national anthem, which she said was “dumb and disrespectful”. She later apologised, but come one RBG! This is hardly radical progressive behaviour.
Finally, what about other important female figures in US courts, ignored by the public? Justice Sonia Sotomayor, for one, a heavy-weight in the fight for criminal justice reform, especially on the issue of police misconduct. Or Pauli Murray, the first African American to receive a JD from Yale Law School and who wrote a law-review article arguing that the Equal Protection Clause in the 14th Amendment applies to women – work that was later used by Ginsburg herself. While the latter acknowledged her work had built on Murray’s, the argument remains. Murray was sidelined in favour of a more conventional, more cautious, and more white liberal heroine.
Celebrity Justices? Do we really want them?
The creation of celebrity justices arguably began with Antonin Scalia, Justice of the Supreme Court from 1986 until his death in 2016. Scalia gave many public appearance and speeches, went on book tours, and made controversial comments. Now, on the other side of the political divide stands Ginsburg. She too hardly shuns the spotlight. She appears in both films about her, and distributes RBG t-shirts.
Plus, it’s clear where RBG stands ideologically. During the presidential election, she repeatedly expressed her dislike of Trump, calling him a “faker” (ouch) and saying she would move to New Zealand if he won (double ouch). Although she later apologised and said her remarks were “ill-advised”, she’s since said sexism was a factor in Hillary’s defeat. And, in December, Ginsburg presided over a naturalization ceremony in New York – a clear middle-finger to Trump.
This has all raised questions about her impartiality. Can we have faith in the ability of a judge to deliver independent justice if we know their political leaning? Do we really want our justices playing partisan politics? The distinction between law and politics becomes blurred as the justice seeks the approval of their fans, unwittingly or not. As Jonathan Turley writes, “celebrity justices can become celebrity justice.”
It’s tempting for liberals to counter a reality-TV star president with a celebrity justice of their own, complete with her own memorabilia and Hollywood movie. But wouldn’t it be better if RBG used her popularity to fight for judicial independence? Being in the interest of both left and right, this avoids partisan politics entirely. And as Trump continues his siege on government institutions with his narrative that they are untrustworthy and corrupt, wouldn’t upholding the values of independent justice be more powerful than turning RBG into a symbol of the liberal cause? As Peter Canellos writes, “Social progress depends not only on passionate advocates, but also on open-minded judges.” Which is, at the end of the day, what we need RBG to be.
And also a badass planker too.
Cora Harrison, April 2019