By Sam Meyerhoff

“Fight for the things you care about, but do it in a way that will lead others to join you.”

-       Ruth Bader Ginsburg, 15 March 1933 – 18 September 2020

On the 18th of September 2020, the world lost a jurist of historic stature. Justice Ruth Bader Ginsburg of the United States Supreme Court passed away in her Washington home at the age of 87. While an American Justice, Ginsburg was celebrated around the world as a fighter for women’s rights and social justice, leading to an outpouring of grief even in Aotearoa. The political aftermath of her death is likely to be discussed at length for months to come, however in light of her passing, it would seem appropriate to reflect on the work and legacy of this great thinker. It is time to ask what we can learn from “the Notorious RBG” in the fight for that most elusive of goals: justice.

Despite having placed top in her class at law school in 1959, Ruth Bader Ginsburg’s legal career was disrupted almost immediately when she was denied a Supreme Court clerkship due to her gender. Instead of letting this dissuade her though, Ginsburg joined forces with the ACLU, creating a division focused on women’s rights and changing the Common Law of the US fundamentally. While a difficult task at the time, under Ginsburg’s leadership the project began an interesting strategy: bringing cases by men who alleged they had been discriminated against in areas such as child support. Given the system at the time was more willing to respond to the claims of men, Ginsburg ended up succeeding in establishing a freedom from gender discrimination in the constitution through cases which were relatively easy to win, before leaving the door open for true gender equality in later cases. Her strategy was as novel as it was patient, placing a very large bet on her being able to wield more authority later in life. 

Authority was something Ginsburg became skilled in acquiring as she succeeded in becoming a member of the judiciary herself. When appointed as a Judge to the Washington D.C. District Court of Appeals in 1980, Judge Ginsburg was known as a moderate who placed a great deal of emphasis on the slow development of law through precedent which defines the Common Law world.  Her only moment of close public scrutiny before her nomination to the Supreme Court in 1993 came when she delivered a lecture in New York critiquing Roe v Wade as a legally dubious, albeit necessary, solution to the issue of women’s rights. Spurred by bipartisan support, Ruth Bader Ginsburg was sworn in as an Associate Justice of the Supreme Court of the United States on August 10, 1993. She was the second woman ever named to the court, after Sandra Day O’Connor.

Her early years on the Supreme Court were mostly unremarkable. The first case of note in which she delivered the majority opinion was U.S. v Virginia, wherein a military university’s refusal to admit female students was ruled unconstitutional. Of particular significance was her reference in argument to cases she herself had argued before the court establishing gender equality under the constitution. By winning those cases decades ago, Ginsburg had convinced the court to accept gender equality by using the ingrained bias the Justice system had in favour of men against itself. Having done so, she was then clear to expand on that precedent her arguments established as a member of the court herself. This ruling showed Ginsburg to be a justice of both immense patience and unchallengeable knowledge. While not as flashy as her later rulings, this case acted as a sign of what was to come.

It is hard to identify exactly when Ruth Bader Ginsburg turned into “The Notorious RBG”, a nickname she shared with fellow Brooklynite Christopher Wallace, but perhaps the retirement of Sandra Day O’Connor is a notable moment. Left as the only woman on the Supreme Court, Ginsburg became more outspoken in her opinions and dissents, particularly around the issue of sex. In the 2007 case of Ledbetter v Goodyear Samuel Alito, Justice O’Connor’s replacement, led the court in a reading of Title VII of the Civil Rights Act 1964 which limited women’s ability to sue employers for sexual discrimination. Justice Ginsburg responded by reading her forceful dissent directly from the bench, a rare act that underscored her defiance and ended up forming the basis of the first bill ever signed into law by President Barack Obama.

Moving forward, the dissents of Justice Ginsburg transitioned from individual moments in American history into a body of legal work unrivalled in its completeness, intellect, and cultural significance. From racial justice issues regarding voting rights laws or university admissions, to a woman’s right to contraception under Affordable Care Act, Ginsburg defined the last decade of her life by being a sure voice in an ever more chaotic world. As she did so, her cultural impact increased ever further, expanding beyond the United State and even beyond the law into cinema and fashion.

What is the lesson to be learnt here? While it is impossible to distill Ginsburg’s judicial work into one simple mantra, it could be argued that her career and legal philosophy was one of a boulder rolling downhill. She started her career by making strides into the issue of gender equality which were substantial, but mostly focused on setting up future legal breakthroughs. Her victories were hard-fought and crucial, but characterised by a patience which only truly became apparent when she herself was able to fulfill the promise of these early cases in a series of much bolder decisions. This patient approach to law allowed her to pick up more and more force with each decision, each dissent, until it no longer mattered whether she was in the majority. Ruth Bader Ginsburg turned the often-maligned methodical nature of the Common Law into a social justice battering ram that advanced her causes in almost every area of society. 

Beyond anything, this is what has the potential to be RBG’s greatest legacy. She gifted the world a roadmap of how to use the strengths of entrenched power structures against themselves. No matter the cause, the Ginsburg strategy of patient, unstoppable progress shows how the legal system can be used to create long lasting change in courtrooms, corporate offices, and theatres across the world. How many Supreme Court justices have had an acclaimed opera and an Oscar-nominated documentary made about their life? It would be speculation to imagine that Ginsburg ever intended to become such a Rockstar jurist, but her life story seems to show she understood the cultural sway a lawyer could accumulate if they were willing to plan decades in advance. It is likely her death will signal a new darker age for the court she sat on, but even in death she has provided a model for what the next steps for any civil-rights focused jurist should be.

However, it would also be a disservice to portray Ginsburg as yet another partisan warrior on a highly politicised court. She understood that fighting with empathy is just as important as fighting with passion. Antonin Scalia, a conservative firebrand and fellow justice on the court, was famously close friends with her despite delivering blistering judicial opinions against her work. When Ginsburg wrote the majority opinion in U.S. v Virginia, Scalia delivered a dissent considered one of the harshest in the Supreme Court’s history. Yet when asked about this ruling, Ginsburg said that because of her friendship with the diametrically opposed justice, he had given her a copy of his dissent in advance. “He absolutely ruined my weekend, but my opinion is ever so much better because of his stinging dissent,” is how she described the matter. She pushed the boundaries of society, and yet did it in a way which made others’ views part of the solution, one way or another. The law can be ugly, but she reminded us that it can also be kind.

 Ruth Bader Ginsburg will be sorely missed by many. To say her mastery of her craft was a once in a generation occurrence would likely be no understatement. In affairs of justice, and the long fight towards it, she will likely cast a shadow for decades to come; being the giant upon whose shoulders the next generation of legal minds will stand. An icon in how she expanded the rights of women both in and under the law, she now belongs to history.

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Featured image by Bijou Karman