Jeffrey Rosen, the president and CEO of the National Constitution Center, is a law professor at George Washington University. His new book, “Conversations with RBG,” will be published next year.
Before her appointment to the Supreme Court 25 years ago, Justice Ruth Bader Ginsburg was the head of the ACLU’s women’s rights project and argued landmark cases on gender equality. (Photo by Nikki Kahn/The Washington Post)
Why has Ruth Bader Ginsburg, at the age of 85, become an American icon whom young women stop for selfies in the street? The simple answer: She’s such a boss. Young women see in her a model of energy, steely determination in the face of injustice, self-mastery and humor that inspired a New York University law student to create the meme “the Notorious RBG.” Less-young men and women celebrate her as the Thurgood Marshall of the women’s movement, the lawyer who did more than any other to advance the cause of gender equality as a pathbreaking advocate for the ACLU in the 1970s. And over the course of her career, conservatives as well as liberals have hailed her as a judge’s judge whose personal and judicial restraint, tireless preparation, and mastery of the facts and precedents have led her to advance the cause of equal justice under the law through what she calls “measured motions” rather than sweeping exercises of judicial power.
For all these reasons, the 25th anniversary of Ginsburg’s appointment to the Supreme Court has inspired several books and movies, from a recent documentary to a forthcoming biopic with Felicity Jones. (I’ve known RBG for nearly 30 years, ever since we bonded over opera when I was a law clerk on the U.S. Court of Appeals for the District of Columbia Circuit, and, with her permission, I am collecting my conversations with her into a book that will be published next fall.) Despite this cascade of tributes, Jane Sherron De Hart’s “Ruth Bader Ginsburg: A Life” marks the first full-length biography of the justice.
De Hart began the book as an exploration of Ginsburg’s late-1960s litigation strategy, which sought to secure gender equality through ratification of the Equal Rights Amendment and Supreme Court litigation. On this basis, RBG granted De Hart access to her litigation archives, as well six interviews between 2000 and 2005. De Hart then decided to expand the book into a full-scale biography, despite the fact that Ginsburg’s official biographers, Mary Hartnett and Wendy W. Williams, are still at work. For this reason, RBG resisted sharing extensive reflections on her life with De Hart, and the book does not contain her candid thoughts on the future of the Supreme Court and the Constitution. Nevertheless, De Hart has written an excellent biography based on archives and interviews with colleagues and friends: In its comprehensiveness, range and attention to detail, this is a vivid account of a remarkable life.
De Hart’s biography makes clear that Ginsburg’s academic excellence, unwavering focus and unparalleled self-discipline were cultivated at an early age. Her most important influence was her mother, Celia, a passionate reader who came to the Lower East Side of New York from Poland and once, while walking down the street with her head buried in a book, actually fell and broke her nose. Celia, whom Ginsburg called “strict and loving,” resolved that her daughter should “love learning, care about people, and work hard” to achieve her goals. Throughout her life, Ginsburg has surpassed these high expectations. Celia also taught her daughter to control unproductive emotions, such as anger, through relentless self-mastery: “Be a lady,” she frequently exhorted. Her mother died days before young Ruth’s high school graduation; Ginsburg later recalled her as “the strongest and bravest person I have ever known.”
Ruth Bader excelled at Cornell, where she studied with Vladimir Nabokov, who taught her the importance of choosing words with precision, and the great civil libertarians Robert Cushman and Milton Konvitz, who kindled her passion for constitutional law. Classmates recalled her as “scary smart” with “a natural ability to be logical and reasoned, and not let emotions get in her way.” She graduated second in her Cornell class, with highest honors.
At Cornell, she met Marty Ginsburg and concluded, “He was the only guy I ever dated who cared whether I had a brain.” Their storied marriage of equals began with a two-year stint at Fort Sill, Okla., where they shared responsibility for child care and read to each other from Tolstoy and Spinoza. They then set off together for Harvard Law School, where the dean asked each of the nine women in the class at a welcoming party why she was taking a place that could have gone to a man. Ginsburg made the law review and ended her first year near the top of the class. She found the emphasis on legal process at Harvard “spellbinding” in its focus on practical facts and fair procedures rather than sweeping ideology. When Marty got a job in New York, Ginsburg transferred to Columbia Law School, where her reputation as “the smartest person on the East Coast” preceded her, and she tied for first place in the graduating class. Despite her dazzling success, she received no offers from law firms because, as she later put it, “to be a woman, a Jew and a mother to boot” was “a bit much” in 1959.
Instead, she clerked for a federal judge (but not Learned Hand or Justice Felix Frankfurter, who refused to hire women) and then went on to become, as head of the ACLU’s women’s rights project, the most influential litigator of gender equality of our time. De Hart’s chapters on the landmark cases Ginsburg argued, which were the original core of her book project, are detailed and accessible. It’s especially helpful to read about the feminist passion that gripped Ginsburg after she read Simone de Beauvoir’s “The Second Sex” while preparing to teach a class on women and the law in the early 1970s: “She sort of caught fire,” recalled a colleague. It’s well known that Ginsburg appealed to sexist male judges by representing male plaintiffs who had been disadvantaged by laws ostensibly favoring women while in fact enshrining gender stereotypes.
De Hart reminds us of the sweep of Ginsburg’s feminist vision, which sought to change not only the law but also institutions and practices that constrained women’s abilities to define their own paths. To change the law, Ginsburg realized, she would have to change public opinion, since the courts would take into account the actions of Congress and the executive branch. And even at the end of her string of Supreme Court victories, according to De Hart, Ginsburg lamented that the failure of the Equal Rights Amendment meant that the court would remain unwilling to root out unconscious gender bias, focusing only on intentional discrimination.
In telling the story of Ginsburg’s appointment to the Supreme Court, De Hart reminds us that leading feminist groups were ambivalent about her candidacy, or even opposed to it, because of her criticisms of Roe v. Wade. Ginsburg had (presciently) criticized Roe for being decided too broadly, in ways that provoked an unnecessary backlash, and for focusing on the amorphous right to privacy rather than equal protection — the ways that restrictions on abortion discriminate on the basis of sex by limiting the opportunities of women rather than men. But once nominated, Ginsburg was hailed as a unifying and collegial centrist by conservatives as well as liberals and was confirmed by a nearly unanimous margin that now seems unimaginable.
How did the unifying centrist apotheosize into the Notorious RBG, a revered icon of fiery dissent? De Hart traces the transformation to 2006, when Chief Justice John Roberts and Justice Samuel Alito succeeded Chief Justice William Rehnquist and Justice Sandra Day O’Connor, creating a solid conservative majority. Ginsburg’s dissent from Alito’s decision in the Lilly Ledbetter case on workplace discrimination galvanized Congress to overturn it. Wearing her “ ‘black and grim’ dissenting collar,” Ginsburg read her dissents from the bench only six times during her first decade on the bench and 13 times between 2006 and 2015.
Ginsburg’s position as the leader of the court’s liberal wing was formalized in 2010 with the retirement of Justice John Paul Stevens. She convinced the other liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — that their dissents would have more force if they spoke together rather than separately. That’s why the leading dissenting opinions of the post-2010 Roberts court have been written by Ginsburg — including her 2013 dissent in the Shelby County voting rights case, which sparked the Notorious RBG meme.
Today, at 85, Ginsburg retains her astonishing work ethic, self-discipline and passionate commitment to equality, with a serene sense of the limits of judicial power and the need to inspire youth to achieve social change. Still a night owl, she continues to leave messages for her clerks at 3 in the morning and to produce opinion drafts faster than her colleagues. Her astonishing recall of facts and attention to detail have been combined with the wisdom of a life spent confronting inequality and overcoming it in measured motions, step by step. The ovations she receives at the opera and pop-culture tributes on the Internet have not affected her clear-eyed focus on her ultimate goal, which is a Constitution that includes ever more individuals in what she calls “equal citizenship stature.”
“The standing ovations, the lovely hand-tatted lace collar gifted to her by a student, the Notorious R.B.G. Tumblr, the T-shirts and coffee mugs bearing her likeness, the children’s books, the R.B.G. documentary, the forthcoming film starring Felicity Jones and Arnie Hammer as a young Ruth and Marty with the justice providing a cameo appearance, even the spoof on ‘Saturday Night Live’ — all are evidence that Ginsburg has indeed made her mark not only on the jurisprudence of the United States but also on American society and popular culture more broadly,” De Hart concludes.
Having transformed herself from a judicial priest to a judicial prophet, Ginsburg’s place in American history will endure.
Ruth Bader Ginsburg
By Jane Sherron De Hart
Knopf. 723 pp. $35