The Transformation of Justice Ginsburg
Now, in the season of her discontent, it is well to remember that Ruth Bader Ginsburg was always called a moderate. The word dangled from her wrist like an ID bracelet. In fact, when she was nominated to be the second woman on the Supreme Court, there were feminists who added another adjective to that word: too moderate.
I always thought that was a bad rap. Ginsburg went to law school when textbooks still read: “Land, like woman, was meant to be possessed.” Her dean asked the nine women in her class of 500 why they were taking a man’s seat. She was accepted for a clerkship only after the judge found an understudy in case she couldn’t hack it. It’s not surprising that Ginsburg often refers to herself as a “way-paver.”
At the same time, the legal strategy that she devised in the 1970s to upend the idea that men and women live in different legal spheres was a careful, incremental bit of roadwork. Her plaintiffs in a series of successful sex discrimination suits were often men — such as a widowed father ineligible for Social Security — chosen to appeal to male judges.
After her confirmation by a margin of 97-3, Ginsburg was still called “a partisan of judicial restraint.” Not for her were the outbursts of friend and fellow opera buff Antonin Scalia. She sought to lower the acrimony. The flashiest decision she wrote was for the seven justices who struck down the all-male Virginia Military Institute.
But this year we are witnessing — what shall we call it? — the radicalization of Ruth Bader Ginsburg? The transformation of the 74-year-old justice who is watching a court undo her life’s work? When I Grow Old, I Shall Wear Purple?
This is the first year since Sandra Day O’Connor’s retirement. As Ginsburg said of O’Connor, “We divide on a lot of important questions, but we have had the experience of growing up women and we have certain sensitivities that our male colleagues lack.” Now the “only woman” is clear about how this feels: “The word I would use to describe my position on the bench is lonely.”
If O’Connor’s exit makes a difference personally, it makes more of a difference judicially. So, twice this term, when the 5-4 majority of the Roberts court dropped its opinions like cluster bombs on the road she paved, Ginsburg took the unusual stance of reading her powerful dissents, slowly, unequivocally, and aloud in the courtroom.
The first time was when the partial-birth abortion ban was upheld. In his opinion, Justice Anthony Kennedy claimed to be protecting women from their own regrets. Abortion was harmful to a woman, he implied, because it violated her true nature as a mother.
But Ginsburg retorted, “This way of protecting women recalls ancient notions about women’s place in society and under the Constitution — ideas that have long since been discredited.” Indeed, she had helped discredit them.
The second time was after the outrageous decision on pay discrimination. The court ruled against Lilly Ledbetter, the one woman among 16 Goodyear supervisors who was paid far less throughout her career. Tough luck, the court said; discrimination suits had to be filed within 180 days after the pay was set.
This time, Ginsburg not only dissented but called upon Congress to change the law and thereby overrule the court. The lone woman on this bench explained in a resonant sentence: “An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably, may be anxious to avoid making waves.”
Avoid making waves? “This has been Justice Ginsburg’s MO,” muses Goodwin Liu, a former clerk and now a law professor at UC Berkeley. “She has tried to be collegial, respectful on the court. She’s not a screamer. So it’s unusual to be reading opinions that say, enough is enough.”
Many women of a certain age are watching with dismay as hard-won progress is rolled back. Ginsburg once predicted that women would achieve full legal equality by 1978. Maybe it’s the times that provoke new strategies. Enough is enough.
I once called O’Connor the justice of the peace. She tried to reduce conflict even when it meant denying conflict. What now of Ginsburg, the justice of the moderate? “She’s still a voice of moderation,” says Yale Law School’s Judith Resnik. “It’s the court that has become radical.”
So as this court session ends, Ruth Bader Ginsburg raised the decibel level and the alarm. At 74, she may find her most powerful role in dissent. The way-paver is fast becoming a wave-maker.
Ellen Goodman’s e-mail address is ellengoodman@globe.com.
© Copyright 2007 The Boston Globe
We the People all stand equal in the exploitive eyes of the the corporations.
Sounds like Ginsberg and Pelosi went to the same school of Me-First Survivalism. Whatever happened to speaking the truth hard and plain instead of engaging in endless elaborate political dances. Especially when surrounded by so many black and white issues and personalities, each reknown for unabashedly living down to everyone’s expectations of them.
I know Ellen Goodman’s agenda requires that she make a heroine of Ginsberg. But I do not believe that it can be done honestly.
Goodman wrote: “In fact, when she was nominated to be the second woman on the Supreme Court, there were feminists who added another adjective to that word: too moderate.”
I hate to be flippant, but isn’t “too” an adverb?
fd32:
I understand what you are saying, but I think it would be hard to read the opinions of Justice Ginsberg and still consider her to be of, “the same school of Me-First Survivalism” as Pelosi. She does try to keep a low profile. She is normally quiet. But I would not mistake that for selling out her values. Her votes and decisions reflect her integrity, personal style of communication aside. What has changed is not her legal opinion, but her method of expressing it, having spoken from the Bench TWICE in dissent, whereas before she had been content to let the written record speak for itself.
So the MSM comes up with a lightweight puff piece on Ginsberg. In a country where Paris Hilton gets an hour on Larry King, while the Constitution itself is burning, & we’re committing horrific war crimes every day, this is only to be expected.
If Ellen Goodman wants to write about the Supreme Court this week, a 2-bit puff piece on Ginsberg is not one of the top stories. It’s not even one of the ten top stories.
The top stories are that they (ie, the clowns in robes) just went quite a ways towards rolling back Brown v Board of Education. They just completed a week in which every single decision was either an assault on free speech; an attack on the separation of church & state; or the state siding with corporations against consumers & against the voting public.
THAT’s the real story — the assault on democratic rights and the systematic dismantling of the Constitution. Mousy little flatteries of Justice Ginsberg are simply unimportant, given today’s realities.
What’s the point of being a radical when your vote is expected and you are just ostracized ? The radical left knows the game is fixed against them so they don’t participate in the fraudulent electoral process, instead they take it to the street. For a radical like her that is inside the system, she
has to do more than just marginalize herself with the automatic liberal vote. What she had to do is try to persuade the hardheads on the other side on why it would be right to voter with her. If she can do that, then she would be someone who could make a difference.
RichM:
“mousy little flatteries of Justice Ginsberg are simply unimportant…”. Agreed, but such fawning to the Ginsbergs of the world are a regular feature in the MSM, so we must accept them. Repetition is the essential ingredient in mind control. Now drink your Kool Aid and pay no attention to the man behind the curtain.
I think Democratic presidential candidates should issue a joint statement saying that given the questions surrounding Florida in the 2000 election and Ohio in 2004, George Bush is not the legitimate president of the US. Consequently, his appointees to the Supreme Court should be expected offer their resignations to the winner of the 2008 election.
Hey fellas, this is a DISGUSTING court, and in part because its gender representation speaks volumes about what’s wrong with America today. You think the Bush cabal and Cheney’s shenanigans would get the free pass if maybe there were THREE women on that bench, or how about 4.5?
Siouxrose,
I am 100% behind having women represented in every nook and cranny in society, public and private, without reservation, and I raised my daughter to think that way as well. But to blame the ills of the world on gender underrepresentation in leadership roles brings to mind images of Jean Kirkpatrick, Barbara Bush, Margaret Thatcher, Golda Meir, Mary Matelin, Imelda Marcos, Ann Coulter, Judith Miller, Babe Buchanan, and I have to say this…human beings don’t suck because they are politicians, politicians suck because they are human beings.And some of these human beings,heaven forfend, possess ovaries.
FD32: Okay, you have raised a good point, but for me to further elaborate on the archetypes that form the core of gender typing leads to backlash from others on this site that argue for a worldview that continues to replicate the same limited results. I believe in reincarnation, a FEMALE in body is not necessarily one who resonates with the RIGHT brain principles of cohesion, unity and connectedness. MANY men DO identify with, embrace and embody such trends. Ultimately if the Supreme Court did have a few more females, there’d be a chance that some warmer politics might balance the interests of the muscular industries that identify with might or force making right. Note that the article says even someone like Sandra O’Connor, hardly a liberal, slanted towards more compassion for the female experience. One could say that Clarence does no such thing to further the Black man’s fate in America (or Black woman’s). Gender classification, and I admit, I fell into this trap, is ultimately limited. WE are each a galaxy within, much more than meets the eye.
There is a strain of women that are reminiscent of ATHENA from myth. This is a type of woman that identifies with patriarchy. In myth Athena DENIES her mother (as place of origin) and believes she was born from her father ZEUS’s head. This is a perfect metaphor of women who identify with tradition, authoritarian bastions of power and the status quo.
The Green man as one author noted it, is a Pan-like creature who is very at one with nature, a natural shaman, and one who would fight policies that rape the natural world.
Just as every snowflake purportedly has 6 sides, but no two are exactly alike, genders are the first cut of the great cosmic template… from there further distinctions arise. I see the division as that of 12 quintessential types, each with an infinite variety of available themes to individuate. So in a way, we’re both right. Depends on how broad the context.
As for what distorts a human being in the political context/contest/conquest… the quest for absolute power, and there are other archetypes to explain that aspect of human nature. We all have different primary motivational drives… and I mean beyond reproduction, self-preservation and survival. The cosmos is an equal opportunity employer… of all traits. More men identify with Mars, I think, than Venus… but I can’t say I have been able to poll 6 billion. So that’s a supposition. It is interesting that in the US the Bush base/Repubs do tend to have a higher percentage of white males than is seen in the Democratic base. Repubs sell an image of macho, control, bravery, warrior-on-tap… that remains appealing to men who, in the Anglo-tradition have been trained for war, or fought in one, or seen their father/brother/uncle fight in one. I said a week or so ago (on the issue of women with sports) that women can emulate men (i.e. armed forces), fine, if that’s what they think they want to do… but I’d like to see the entire human expression begin to embrace the more YIN traits that would help to balance the martial ones that have brought so much cruelty, war, competition and destruction to a great many sacred things. EVERY principle (of the original 12) IS Divine, the key to the great circle is BALANCE. When any singular expression gains disproportionate representation, the entire Divine system implodes. This is why nature is teetering towards collapse, economics favor the powerful at the expense of all others. NOT following higher examples (along with those illustrated by Nature) is costing us… we cannot solve our problems (this is Einstein’s advice) from the LEVEL of thinking that brought the problems about. We can argue FOR our limitations (Richard Bach) and get to keep them, but then earth ship 101 sinks.