The past two years have seen an explosion of pop culture affection for 82-year-old Supreme Court Justice Ruth Bader Ginsburg, much of it under the moniker “Notorious RBG.” The name is a riff on “Notorious BIG,” one of the most celebrated rappers of all time, and now adorns t-shirts, hoodies, and a popular Tumblr page. A fiery Ginsburg caricature has been played on Saturday Night Live, an opera has been written about her, and Warholian screen prints depict her regal visage complete with crown and jabot. After spending several decades quietly inhabiting the minor limelight afforded to high-ranking American jurists, Ginsburg has suddenly found herself an icon.
Now Irin Carmon and Shana Knizhnik have written an entire book, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (Dey Street Books, $19.99), based on the “Notorious RBG” sobriquet, a curious collection of biography, excerpts from Supreme Court opinions, cartoons, and a recipe for pork loin from the Justice’s late husband. The book does not attempt to grapple with why this surge of Ginsburg-mania has come about—it is thoroughly an example of the phenomenon rather than an attempt to analyze it. But as the most fully-realized embodiment of the trend, Notorious RBG is a helpful window into Ruth Bader Ginsburg’s journey from Supreme Court Justice to viral meme.
Calling the book a hagiography could hardly offend its authors—most biographies don’t conclude their introduction with “We are frankly in awe of what we’ve learned about her, and we’re pretty excited to share it with you.” Adoration oozes from the page with every tidbit and factoid the authors giddily present. So we learn that Justice Ginsburg began smoking because she was brave. When she argued before a case before an unusually quiet Supreme Court, the authors infer that she stunned the nine Justices into silence.
This incessant lionizing can border on the embarrassing, even in its most lighthearted and transparent form. The authors tell the (possibly apocryphal) story of Justice Ginsberg rejecting an applicant for a clerkship who had included an error in his application with a personal letter telling him to “note the typo.” Carmon and Knizhnik see this as a charming example of Ginsburg’s attention to detail. Readers may not find it quite so endearing to see one of the country’s most powerful people going out of her way to pointlessly humiliate a young job applicant.
The desire to keep the book reverential forces the authors into some contradictory postures, as Notorious RBG alternates between referring to the Justice, admiringly, as a radical with referring to her, also admiringly, as a center-left pragmatist. Ginsburg must be faultless, thus she is both stubborn and diplomatic, both activist and restrained, both moderate and audacious.
But when you get down to it, the fundamental premise of the pop culture adulation for Ginsburg is that she is a headstrong liberal firebrand. Of course, much of the ordinary work of a Supreme Court justice consists of painstakingly adjudicating mundane interpretive questions, such as deciding what standard of review to apply in evaluating administrative determinations of the definition of “U.S. waters.” (see United States Army Corps of Engineers v. Hawkes Co., Inc.) But such matters leave little room for gutsy feminist ass-kicking, and elucidating the federal procedure controversies of the day does not earn one’s face on Amy Schumer’s tank top.
Making an activist hero out of an administrative functionary like a Supreme Court Justice was therefore always going to require a bit of distortion. Yet a reader of Notorious RBG (even after using the book to prepare a delicious pork loin) might be left wondering whether the characterization of Ginsburg as a fearless champion of progressive principles can be defended, even by the relaxed standards necessary for evaluating Justices.
The task of glorifying Ginsburg is made easier if one conflates her early career as a litigator with her later tenure as a justice. For despite Notorious RBG’s portrayal of Ginsburg’s life and work as a unified package, there are distinctly different phases, and it’s difficult to appreciate Ginsburg’s complexity and evolution without separating the 30-something feminist dynamo from the 70-something robed bureaucrat.
In her early years, Ruth Bader Ginsburg was a spectacular law student in the face of rampant sexism and personal challenges. She became a formidable civil rights lawyer, dedicating her career to eradicating laws that discriminated on the basis of gender. Her use of male plaintiffs to demonstrate how sex-based classifications harmed men and women alike was shrewd strategy and smart politics. If you were a young, fiery liberal looking for a role model, you could do worse than Ruth Bader Ginsburg, civil rights lawyer.
Yet the recent outpouring of ardor has celebrated not just this period, but her time the court as well, and Justice Ginsburg is a different story. Empirical measurements of ideology confirm the eye test: Ginsburg is a center-left Justice roughly in line with President Obama’s two appointees and Stephen Breyer. This gang is less liberal than the recently retired John Paul Stevens (appointed by Republican President Gerald Ford) and miles to the right of recent justices Thurgood Marshall and William Brennan. Of course, in today’s court, which contains four of the most conservative justices of the last century, that still makes them the left flank. But even measured against her decidedly non-radical judicial peers, Ginsburg is a cautious centrist. Thus while she might maintain broadly progressive sympathies, she is equally willing to allow the government to threaten the withdrawl of funding in order to punish universities that ban discriminatory job recruitment by the military (Rumsfeld v. Forum for Academic & Institutional Rights, Inc.) or to rule against paying overtime to Amazon warehouse workers (as in Integrity Staffing Solutions v. Busk).
Ginsburg’s liberal supporters—whose raves fill Notorious RBG—portray her record differently. Forced to accept that her voting pattern is nothing like that of Thurgood Marshall or legendary radical William O. Douglas (who fashioned a constitutional right to birth control out of thin air, and famously argued that trees had the right to be represented in court), they treat her moderation as cunning. The law, after all, requires five votes to change, not one. What looks on an empiricist’s scatterplot like a fainthearted liberal, they argue, is instead a practical coalition builder. Ginsburg is merely being strategic.
This argument is too clever by half. One does not need to be meek and compromising to advance one’s legal views. Justice Scalia, Ginsburg’s best friend on the court, has not let his successful coalition building prevent him from being an outspoken, even crude conservative. Scalia has stated that he writes his dissents for the law students, and over the course of his tenure the Court has gradually slid rightward to join him on several important issues. The ability of Supreme Court justices to set agendas through nonbinding rhetoric is one of their most potent.
Ruth Bader Ginsburg undoubtedly understands this, and has given her fair share of blistering dissents. But on the issues where she is silent, her abstention from controversy can be difficult to defend. Where criminal justice is concerned, for example, she has trailed her colleagues in recognizing the stakes, and may have done real harm to large numbers of vulnerable people through her refusal to engage.
Prolonged solitary confinement, the practice of locking one or two people in a small area without meaningful social contact for over twenty-two hours per day for long periods of time, is a widespread practice in American prisons. This starvation of social contact is devastating to the mental and physical health of people in solitary. For decades, psychologists have considered the practice so damaging as to constitute torture.
In 2009, the American cultural elite caught on to the practice’s horrors in the typical way: The New Yorker published a thorough, clinical condemnation of solitary confinement by its resident medical explainer Atul Gawande. If the scientific consensus that the practice constituted torture was not enough to end the practice, one might imagine the burst of outrage the article provoked to have finished it off. Even a basic syllogism seems like it should have led the courts to eradicate long-term solitary confinement for good: the practice is torture; torturing people violates the Constitution; the practice violates the Constitution.
Not so. Although a handful of lower court cases in recent years have found solitary confinement unconstitutional when applied to certain particularly vulnerable groups such as the seriously mentally ill, the law has lagged behind the science by not mandating the practice’s abolition.
Last term, in the mostly unrelated case of Davis v. Ayala, Justice Anthony Kennedy wrote a lengthy concurrence condemning solitary confinement. He described the new and growing awareness that solitary confinement caused massive harm and closed by inviting a challenge to the practice: “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” Most notably, Justice Kennedy made no reference to any particularly vulnerable group, instead suggesting that long-term solitary confinement may be unconstitutional for all. Justice Ginsburg did not join the concurrence.
The reaction to Justice Kennedy was significant. The New York Times dedicated an editorial to the concurrence and the Los Angeles Times wrote a story on it. Lower courts have already begun quoting Justice Kennedy’s language when discussing cases on solitary confinement. When long-term solitary confinement is abolished, Justice Kennedy’s concurrence will appear in the history.
The example, in which Ginsburg sat out an opportunity to condemn the brutal and illegal conditions of America’s most marginalized people, is not trivial. Mass incarceration and the reluctance of the federal judiciary to check it are major stories of our time. The number of people we send to prison, the length of time they serve there, and the conditions in which they live are collectively among the country’s biggest civil rights disasters. They’re also among the few social problems that the Court is actually well-positioned to do something about. Constitutional litigating is generally a feeble means of repairing disastrous public policies, but it should be perfectly designed to prohibit government officials from shooting children in public parks, raping adults in American jails, and torturing people in prison through the use of long-term solitary confinement.
Alas, the Supreme Court has not seen fit to give the Constitution such a reading, and Justice Ginsburg has been as much a bystander as many of her peers on the Court. Take just the last few terms. In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable. In Taylor v. Barkes, the Court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures. In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop. Ginsburg joined the opinion in every case.
In fact, she has gone so far as to join the conservatives on criminal justice, even when all of her fellow liberals have sided with a criminal defendant. In Samson v. California, the Court decided the issue of whether police could conduct warrantless searches of parolees merely because they were on parole. Instead of joining the liberal dissenters, Ginsburg signed onto Clarence Thomas’s majority opinion in favor of the police.
In January, the Court issued its opinion in the case of Kansas v. Carr. The Kansas Supreme Court had overturned a pair of death sentences, on the grounds that the defendants’ Eighth Amendment rights had been violated in the instructions given to the jury. The U.S. Supremes swooped in, informing Kansas that it had made a mistake; nobody’s Eighth Amendment rights had been violated, thus the defendants ought to have continued unimpeded along the path toward execution. The Court’s decision was 8-1, the lone dissenter being Sonia Sotomayor. Ginsburg put her name on Justice Scalia’s majority opinion instead.
It was no random chance that made Justice Sotomayor the particular dissenter. Since her appointment in 2009, Sotomayor has emerged as a strong opponent of the more egregiously inhumane aspects of American criminal justice. She has repeatedly taken on all eight of her colleagues; last year she lambasted them for shielding a police officer from legal liability for shooting a man during a high-speed chase. Sotomayor wrote that by “sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.” The other justices, including Ginsburg, felt the case so unimportant that they dispensed of it with a brief, unsigned opinion.
During her time on the court, Sotomayor has been recognized as making a conscious effort to educate her fellow justices and the American public about issues of race and criminal justice. Writing in The New Republic, David Fontana has said that Sotomayor’s spirited fight against racism makes her a “national treasure,” and that “Sotomayor, uniquely among recent liberal justices, has used her public appearances to effectively communicate her liberal perspective on the constitution to regular members of the public, in addition to legal and academic elites.” Importantly, Sotomayor also sees herself as an “outsider,” uncomfortable with the pomp and affectation of her eight judicial brethren.
In Slate, Mark Joseph Stern contrasted Sotomayor’s perceptiveness about police and prisons issues with Ginsburg’s indifference: “When it comes to understanding the systemic flaws and violent behavior of America’s criminal justice system, there’s no one quite like Justice Sonia Sotomayor…Sorry, Notorious R.B.G. groupies, but [Ruth Bader Ginsburg] has a bit of a law-and-order streak.” (This despite Sotomayor being an ex-prosecutor, while Ginsburg worked for the ACLU.)
Carmon and Knizhnik discuss none of this, instead treating as an implicit assumption that Ginsburg’s aggressive battle for justice extends from gender equality to fighting racism. Of course, Notorious RBG is not obligated to interrogate every facet of her career, and Ginsburg need not be perfect to be worthy of admiration. But the assumption that she is a role model on racial inequality is not an ancillary question. Racial inequality is a defining feature of American life and a national disgrace. Racial animus is also the bedrock of mass incarceration, which erupted partially on Ginsburg’s watch and which she has expressed little interest in attempting to eliminate.
Carmon and Knizhnik must surely be aware of this. After all, the very opening scene of Notorious RBG depicts Ginsburg reading her fiery dissent in Shelby County v. Holder, an important voting rights case in which the court implied that Black voters in the South no longer needed Congress’s protection from their states’ efforts at disenfranchising them. (The intervening years have proved the Court wrong, if there was ever any question.) The Court, Notorious RBG notes, was “threatening the progress for which she had fought so hard.” As for Ginsburg, “when the work is justice, she has every intention to see it to the end. RBG has always been about doing the work.” In the lengthy discussion of her career to follow, one might therefore expect to read about Ginsburg fighting so hard for progress in the eradication of racism; doing the work; seeing it to the end.
Notorious RBG barely mentions race again. The authors seem to believe that because of Ginsburg’s many accomplishments fighting for women’s rights, we can safely assume that she was a force for good in the fight against racism without considering the evidence.
In fact, one of Notorious RBG’s few mentions of race is particularly strange. In the book’s discussion of Bush v. Gore, the contentious decision that decided the 2000 presidential election, the authors mention that Ginsburg’s draft of her dissent had a footnote alluding to the possible suppression of Black voters in Florida. Justice Scalia purportedly responded to this draft by flying into a rage, telling Ginsburg that she was using “Al Sharpton tactics.” Ginsburg removed the footnote before it saw the light of day.
This anecdote’s inclusion in the book is baffling. Notorious RBG unrepentantly fawns over Ginsburg as a civil rights hero. Yet in this story, Ginsburg contemplates calling attention to straightforward, anti-Black racism in the most facile of ways. But when her friend Justice Scalia plucks an argument straight from right-wing talk radio to shame her out of doing so, Ginsburg instantly capitulates. Some commitment to racial equality.
Ginsburg’s legendary chumminess with the late Justice Scalia should be another red flag in itself. Here was a man openly (and brashly) against every value Ginsburg supposedly holds. He suggested that affirmative action may be keeping African Americans from attending the “slower-tracked” schools where they belong. He would have seen Roe v. Wade overturned, and the reproductive rights Ginsburg fought for completely stripped. He called the Voting Rights Act a “racial entitlement” and consistently defended the legitimacy of anti-gay prejudice. Not the sort of character one would expect Ginsburg to attend the opera with.
Yet somehow these two opposites managed to get along and maintain mutual respect and good humor, and a legendary extrajudicial friendship. How? On the one hand, it seems a charming parable about the setting aside of differences and the embracing of common ground. But it’s also odd that anyone who takes their values seriously could simply “set aside” the fact that, by their own metric, their friend was one of the most powerful enforcers of systematized bigotry and repression in the country. (What can you say? “Oh, that was just his day job”?) Now, perhaps Ginsburg would reject that description of Scalia’s position. But if you think the rights of black and gay people are of major moral consequence, and you think Scalia’s work profoundly undermined those rights, it’s difficult to escape the conclusion that this was not someone you ought to regularly be taking to dinner.
The perverse Scalia/Ginsburg friendship speaks to a disturbing trait shared by both the Court itself and the specific Notorious RBG approach to understanding it. This is the tendency to become wrapped up in the genteel, sober, ritualized world of the Court’s chambers, and forget the human consequences of the work that is done there. A torture victim would not so easily be able to compartmentalize Scalia’s repeated defenses of torture. A gay or trans person might have had a difficult time going out and watching Scalia eat risotto and tell jokes, knowing the world he would build for them if he could. During Scalia and Ginsburg’s occasional public appearances together, Scalia usually cracked his line “What’s not to like [about her]? …Except her views on the law.” Well hah, hah. Yet “her views on law” embody her fundamental conception of justice and morality (at least ostensibly). Only in the detached and rarified world of the Court could someone accept such a remark as a gentle joke among colleagues rather than a nasty dismissal of everything one holds dear, including the basic rights of women.
In 2011, several public figures, including Harvard Law Professor Randall Kennedy, urged Justice Ginsburg retire while she could be sure that President Obama could pick her successor. Ginsburg was seventy-eight and had survived cancer twice. (Kennedy also called for the retirement of the only slightly-younger Stephen Breyer.) Ginsburg refused to pay any heed to the suggestion, and appears determined to remain on the Court until it pleases her to depart. (With Republicans now firmly committed to judicial obstructionism, it may even be too late fo her to change her mind and assure an Obama-nominated successor.) Notorious RBG addresses this controversy in its introduction, and the response is worth considering in full:
Historically, one way women have lost power is by being nudged out the door to make room for someone else. Not long before pop culture discovered RBG, liberal law professors and commentators began telling her the best thing she could do for what she cared about was to quit, so that President Barack Obama could appoint a successor. RBG, ardently devoted to her job, has mostly brushed that dirt off her shoulder. Her refusal to meekly shuffle off the stage has been another public, high-stakes act of defiance.
It should first be noted that “women” as a whole would are unlikely to lose any power by Ginsburg’s retirement; it is widely assumed that any selection Obama would make to replace Ginsburg would be a woman. But other contemporaneous responses to the call to retire made more sophisticated claims that they whiffed of sexism. Emily Bazelon wrote in Slate that since Ginsburg is “a small, slender woman who speaks in low tones and looks like a bird… people tend to assume she is frail when in fact she is anything but.” This point is important. Even those of us who find excellent, logical reasons to urge Ginsburg to retire should concede that research on implicit bias makes those excellent, logical reasons inherently suspect. When they happen to coincide with the outcome that traditional gender norms or racial animus would suggest—such as urging a slight woman to step down from her powerful position because she is too frail—alarm bells should go off.
Yet the main argument falls to bits upon a gentle prodding. First, the charge of sexism is hard to maintain so long as one equally favors the retirement of the similarly senescent Justice Breyer. (Ageism may be another matter, though it should hardly be unduly discriminatory to point out that the elderly have a noticeable tendency to suddenly expire.) Second, it’s very strange indeed to defend against the sexism experienced by Ginsburg without weighing it against the sexism experienced by the 162 million other women who live in the United States and have to live with the Supreme Court’s rulings. The authors of Notorious RBG must find important the actual work the Supreme Court does—they wrote a whole book about a Supreme Court justice! Yet they do not even engage with the argument that Justice Ginsburg is actually putting the rights of people at risk by entering her mid-eighties on a Supreme Court with four pathologically conservative justices, all salivating at the prospect of recruiting a fifth and restoring the toxic ideological configuration of the Scalia years. Justice Ginsburg’s “public, high-stakes act of defiance” may be gratifying and symbolically powerful, but if the end result is the reversal of Roe, can a victory for feminism truly be claimed? (In fact, replacing Ginsburg might actually help women’s rights, at least the rights of women prisoners, if someone more Sotomayor-ish were given the post.)
One of the authors’ favored metaphors can explain how they so blithely dismissed the merits of allowing President Obama to pick Ginsburg’s successor: that of the court as “stage.” Ginsburg refused “to meekly shuffle off the stage.” It’s a word commonly used in descriptions of Supreme Court proceedings. Indeed, Notorious RBG on its opening page notes that “What happens inside the hushed chamber is pure theater.” No, it is not. It may be theatrical, but very few of your ordinary community stage productions retain the power to impose or revoke the death penalty.
A less glib reply to the pro-retirement argument came from ex-New York Times court-watcher Linda Greenhouse. Greenhouse explained Ginsburg’s intransigence thusly:
“I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one…I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons.”
There, in a nutshell, is the difference between Ginsburg and the people her work affects: she and her followers can afford to take the long view, to see political fights as important without seeing them as an end-all, be-all struggle. From the tables of the Supreme Court cafeteria or the leather chairs of one’s chambers, lofty abstractions like “the preservation of judicial dignity” can appear to carry equal weight to questions of actual human consequences. One’s fellow justices can be droll and amiable drinking companions, even if they wouldn’t bat an eyelid at seeing homosexuals put in prison. And “political reasons” can appear as something tawdry and unbecoming, even though they refer to matters like “keeping children from being put in solitary confinement” and “making sure colleges don’t exclude black people.” What a luxury it surely is to be able to relax and take “the long view” of these questions, a luxury unshared by the victims of the Court’s judgments.
So one must adopt a somewhat cynical hypothesis as to why this middle-of-the-road Justice is the object of the cartoons, the hoodies, and this coffee table ode: the readers of Notorious RBG spend as little time thinking about the people abused in American prisons and jails as the Notorious RBG herself does. Elsewhere, people in America’s worst prisons, their families, and their advocates have to hope that either a Democrat will win the 2016 presidential election or that Justice Ginsburg will make it to 87 in good health. If neither come to pass, thousands of additional people may be assaulted, raped, or killed in American prisons and jails, and it’s likely that most of the people wearing “Notorious RBG” paraphernalia will never know their names.