Assessing The Notorious RBG

(The Indian Express)

“Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproven assumptions, concerning an individual´s potential to perform or to contribute to society.”

“Women today face discrimination in employment as pervasive and more subtle than discrimination encountered by minority groups. In vocational and higher education, women continue to face restrictive quotas no longer operative with respect to other population groups.”

“These distinctions have a common effect. They help keep woman in her place, a place inferior to that occupied by men in our society.” 

“In asking the Court to declare sex a suspect criterion, amicus [Ginsburg] urges a position forcibly stated in 1837 by Sara Grimke, noted abolitsionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, „I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.“ 

These are excerpts taken from the first speech in front of the U.S. Supreme Court by Ruth Bader Ginsburg. With her oratorical skill, she – alongside attorney Joseph Levin – managed to persuade eight of nine male justices on the bench and win the case (Frontiero v. Richardson). Moreover, she made them listen. She wasn’t questioned, nor was she interrupted. Such presence would indicate the stellar legal career to come. She would demand attention, not always vociferously, not by purposeful polarization, but with precision and succinctness. Her dedication and love for justice was undeniable and her accomplishments show clearly just how immensely erudite she was.

With all RBG’s judicial achievements in mind – the progress of gender equality, abortion rights and the freedom of same-sex couples to be recognized as equals under the law – it should be normal to reflect on an individual´s life in full and recognize instances, when they perhaps weren´t a unifier, a legend and an all-round badass in the eyes of the people her decisions governed. Everyone has flaws and not even the ‘Notorious R.B.G’ should be exempt from critical evaluation.

She could be criticized for the lack of racial equality among the people she employed. She only employed one black clerk in all her time as a judge on the District Court of Appeals for the District of Columbia Circuit (1980 – 1993) and as an associate justice on the Supreme Court (1993 – 2020). In addition, her 2009 comment about the 1980 Supreme Court decision Harris v. McRae, saw her characterize a certain section of the population in a very peculiar way:

Frankly I had thought that at the time Roe [v. Wade ] was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.

Taking a cynical view of these circumstances, one might see racist tendencies in her comments and behaviour. I don´t believe RBG was racist, but there are legitimate questions about her clerk selection process, especially after her promise in her confirmation hearing before the Senate Judiciary Committee: “I am going to try harder, and if you confirm me for this job, my attractiveness to black candidates is going to improve.”

Another base of criticism, and perhaps an even more problematic one, is her decision not to resign from the Supreme Court during the early 2010s, when she was already in her 80s. Public pressure to step down with references to her seniority didn´t persuade her. From the perspective of 2020, it is easy to judge the decision RBG then made in light of the recent nomination of Amy Coney Barrett to replace her in the Supreme Court. But it might´ve been an easier decision than we realized in 2013-2014 too.

Considering the political leanings in the legislative branch at that time, the Democrats would´ve had a very real chance of replacing her with someone younger. The motivation behind this switch, of course, would have been much more practical than concerns about her ability to work. Of course, RBG wouldn’t have had the opportunity to affect the U.S. jurisprudence at the highest level anymore, but the Supreme Court is a much more powerful institution in relation to the wider development of the United States, than a particular associate justice at a particular point in time. Now Democrats most likely have to watch from the sidelines, thanks to their loss of the Senate in 2014. 

Is such critique of RBG sexist? There wasn’t a comparable outcry for Associate Justice Stephen Breyer, a man 76 years old in 2014, to step down. It surely would have been an honourable move for Breyer to resign, as his position in the Supreme Court is also in danger of falling to conservatives, should the current president win this election. Maybe it is true that pleas for his resignation weren’t as vociferous, but as this applies to Breyer as well (he wasn’t and isn’t exempt from the responsibility for not vacating his seat), the argument still stands: RBG should have resigned to preserve her seat for a liberal voice. 

How could she have foreseen the loss of seats for the Democrats in 2014, 2016 and the loss of the presidential election in 2016? Isn’t it unfair to apply such scrutiny to her when elections are not even correctly predicted by those whose job it is to predict elections? 

Well, not really. 

As someone who constantly checks the collective pulse of the society and regulates its functional framework, she should have kept in mind at least the uncertainty of her successor sharing her views. This is especially true in light of the changes to the Senate in the 2014 elections. 

Claims of egotistical motivation for staying on the bench might be true. It might also be true that witnessing Breyer´s resignation being hardly mentioned in the same breath as hers made RBG´s refusal to vacate her seat even more ingrained. 

Maybe the electorate is to blame instead? After all, the voters´ alternative choices in the senatorial and presidential elections would´ve perhaps changed the situation as it is today. But is it always reasonable for people who adhere to certain values to blame the voters for not having been convinced of the suitability of those values? Maybe the problem lies within the people supporting these ideas and in their inability to communicate them properly?

Whatever the case, the fact remains that seven years ago, Ginsburg´s decision shaped her legacy and perhaps the composition of the Supreme Court for years to come, maybe even decades. After all, a 6-3 majority is, in effect, very different from a 5-4 majority. 

Joosep is a columnist for Liberal Base, Law student at the University of Tartu and the Vice-President of ELSA Estonia