Dahlia Lithwick covers the Supreme Court for Slate and hosts the podcast “Amicus.”
When civil rights lawyer Ruth Bader Ginsburg argued her first case at the Supreme Court in 1973, Justice Harry Blackmun, who kept track of such things in his notes, rated her performance a C-plus, adding, “very precise female.” As trite and sexist as his contemporaneous impressions were, they captured an aspect of Ginsburg that sometimes gets lost in the worship of the now-83-year-old cult figure known by her “rapper” moniker, Notorious RBG. That same Ginsburg who has fired up a generation of millennial feminists, and spawned T-shirts, tote bags and tattoos, is and has always been, at heart, a very precise female, too.
It can be nearly impossible to reconcile the two Justice Ginsburgs: the one captured so exuberantly and lovingly in last year’s “Notorious RBG: The Life and Times of Ruth Bader Ginsburg,” by Irin Carmon and Shana Knizhnik — the spicy dissenter in landmark reproductive rights and voting rights cases, the bench-press queen of the octogenarian set — and the white-gloved wonk who always felt most comfortable when she was over-prepared.
In a new collection of the justice’s speeches, opinions and writings, “My Own Words,” curated by Ginsburg and her biographers Mary Hartnett and Wendy W. Williams, the justice shows herself on balance to be far more comfortable in the latter posture. With deeply researched essays (often on pioneers such as the first Jewish justice, Louis Brandeis, or the first women in the legal profession, including Belva Lockwood) and warm tributes to her colleagues, there is scant evidence here of the bomb-throwing feminist icon — with the exception of some strong dissents and opinions from recent court terms.
The Ginsburg who emerges from this collection is deliberative, gracious, quick to credit others with her own successes and above all temperate. That makes it even harder to reconcile this voice with the Ginsburg who told numerous press outlets in early July that she was terrified of a Donald Trump presidency, calling him, among other things, a “faker.” Ginsburg quickly said those political remarks had been “incautious” and added, “I did something I should not have done.” Recently, having said that San Francisco 49ers quarterback Colin Kaepernick and others were “really dumb” to refuse to stand for the national anthem, Ginsburg apologized again.
In short: This year she is starting to sound just a bit like the rock diva she claims not to be.
If one accepts, as I think one ought, Ginsburg’s voice in this collection as her authentic voice, as opposed to the diva construct of the Internet, one thing is manifestly clear: The 2016 presidential election is nothing less than a referendum on everything Ginsburg has spent her life working toward. What is under siege this fall goes beyond just her path-breaking work in gender equality and the law, and her lifetime of labor for progressive legal advancement. At the heart of “My Own Words” is an abiding commitment to civility, to institutional norms, to the infinite possibilities of dialogue and cooperation, and to the now-dubious notion that protecting outsiders and others is a core American value. If the workhorse has become the celebutante in recent months, it may be because she is witnessing the end of a worldview she has long cherished and promoted.
The collection is organized in a fashion that makes it hard to locate a strong narrative arc. But to the extent that a clarion voice emerges, it is a devotion to the rule of law as an ordering force. From the very first essay — a 1946 editorial for her school newspaper penned by a 13-year-old Ruth Bader, about the value of the Ten Commandments, the Magna Carta, the Declaration of Independence and the U.N. Charter — her concerns for peace, for caution in the nuclear era and for international cooperation are palpable. The same Ruth, writing for a religious-school bulletin, invoked the scars of concentration camps and the need for “men” (she was only 13, recall) to “create a strong bond towards one another, a bond unbreakable by a studied prejudice or a passing circumstance.”
Time and again in her essays, she reminds us that she stands on the shoulders of the female pioneers (“waypavers and pathmarkers,” in her parlance) who came before her, making it possible for a Jewish woman to sit on the highest court in the land. Her solicitude for outsiders and those locked out of legal processes is boundless. As she notes in an appreciation of the Jewish justices who were her predecessors, “Law as protector of the oppressed, the poor, the minority, the loner, is evident in the life body of work of Justice Brandeis, as it is in the legacies of Justices Cardozo, Frankfurter, Goldberg and Fortas.” Her conclusion to this essay: “What is the difference between a New York City garment district bookkeeper and a Supreme Court Justice? One generation my life bears witness, the difference between opportunities open to my mother, a bookkeeper, and those open to me.”
It’s no wonder the Trump era makes her hyperbolic. Her life’s work has been to use law to make the invisible seen. He sees law, to the extent it exists at all, as a way to make the invisible disappear.
Over and over, Ginsburg returns to the need for civility and cordiality and friendship across ideological divisions. She quotes Antonin Scalia — one of her dearest friends — saying: “I attack ideas. I don’t attack people.” She notes in tribute to Sandra Day O’Connor that “collegiality is the key to the effective operation of a multi-member bench.” She writes with urgency of the need for judicial independence, lauding the United States for having a culture “that frowns on attempts to make the courts over to fit the president’s or the Congress’ image.” Ginsburg the firebrand has always been layered only raggedly atop Ginsburg the small-c conservative. (It was this more than anything that may have led to her recent critique of Kaepernick.) All of these judicial and cooperative norms seem to be suddenly in question during this election, and it’s no accident that she attacked Trump only after he questioned the integrity of a federal judge whose family came from Mexico.
Above all, always in her own methodical way, what shines through these essays is Ruth Bader Ginsburg, feminist, who truly could not conceive of a world without meaningful gender parity in the 1970s (“courts and legislatures are beginning to recognize the claim of women to full membership in the class people.”) And who still cannot believe this world exists in 2016, as she noted in a concurrence in a landmark abortion opinion: “It is beyond rational belief that [the Texas law] could genuinely protect the health of women.” It is this Ginsburg, rarely polemical, frequently quotable, always deeply sourced and analyzed, who made her way onto the tote bags and the Internet memes.
“My Own Words” is the furthest thing from sexy. Unless you find a very precise woman sexy — which many of us do. But as a collection of thoughtful writing about perseverance and community and the law, it is a tonic to the current national discourse. When Notorious RBG herself steps out of these norms, it is only awkwardly. “My Own Words” reveals in fine relief how much she believes to be at stake.
By Ruth Bader Ginsburg with Mary Hartnett and Wendy W. Williams
Simon & Schuster. 400 pp. $30