The Brilliance And The Hubris Of Ruth Bader Ginsburg
10:04 AM EDT on September 22, 2020
Ruth Bader Ginsburg, one of the most prominent Jewish women in America, died on Erev Rosh Hashanah, the beginning of the Jewish new year, so it feels appropriate to begin here with a recollection from Hebrew day school. There, we started each weekday with morning prayers and on certain days of the week we followed that with a Torah reading. I did this five days a week for years. Do this for enough days, enough years, and you will hear the same Torah stories over and over again. The stories do not change but a good rabbi will find a way to spin new meanings from the same yarns or, in our case, bribe elementary-school you with Bazooka bubble gum.
Torah is difficult, partly because it's all written in ancient Hebrew, but also because the people in it are painfully human. They do the right things for the wrong reasons and the wrong things for the stupidest reasons. Cain murders his brother Abel because he's envious. A backwards glance turns Lot's wife into a pillar of salt. Moses is a legendary hothead. On Rosh Hashanah, the story is of Abraham nearly sacrificing his son Isaac just because God told him to. He is about to strike the fatal blow when God appears and says, nah, it's fine, I was just testing you. These are frustrating stories.
I thought of that frustration this weekend as I and millions of Jews returned to those stories and prayed not collectively in synagogues but individually from our homes, out of necessity due to the mismanagement by our government of a global pandemic, while we also collectively mourned the death of a more modern-day Jewish figure, Ginsburg. I cried as I prayed on Friday night for the first time in a long time. I cannot tell you now it if was out of sadness or frustration, but probably both.
As the hours wore on, Ginsburg's death entered the tumble of the news cycle, where she was lionized as a feminist icon and shrugged off as a product of brand-focused, white-lady feminism. Her longevity was exalted and also questioned because, in retrospect, retiring during the Obama administration could have saved Democrats from their present nightmare: trying to prevent the current president from pushing through a Supreme Court justice of his choosing, an ideologue against abortion, against equal access to voting, and pro-corporations. On Friday evening and then Saturday morning, as I listened to rabbis do what rabbis do—take stories about imperfect people from the past and weave them into lessons for our present—I wondered if there was a third way to see Ginsburg's legacy. Not as a hero worthy of worship, nor as mockable meme worthy of derision, but as something else: as a Torah story.
There's no strict definition of a Torah story—apologies to my Hebrew day school teachers if there is one and I forgot—but I'd suggest it's one that follows these rough outlines: A random person gets picked for a mission by God, they carry out the mission and achieve their goal, but then they make some sort of gross error near the end, usually out of hubris, that makes it necessary for us to start another Torah story.
Ginsburg wasn't born a feminist and she didn't seem to aspire to be a pioneer of women's rights so much as she had the job thrust upon her. She required a trip to Sweden in the 1960s—where she observed the many rights women already had won there—which got her thinking that things did not have to remain as they were in the United States. When she returned to the U.S., she took a job as a law professor at Rutgers, and she taught a class on women and the law after female law students asked her to do it. It was her husband, Marty Ginsburg, who found what would become one of her signature cases, Moritz v. Commissioner. And her legal brief for Reed v. Reed, arguing that discrimination based on gender in determining who can oversee an estate is unconstitutional, relied heavily on the work of feminist scholars of the past, specifically Pauli Murray and Dorothy Kenyon. Ginsburg cited them as as her co-authors on the legal brief, a way of acknowledging that, like Abraham to Isaac to Jacob to Joseph, she was just one of many links in a chain.
But that Ginsburg didn't seek out her role didn't take away from her dedication to the work. She went on her quest—you could call it a Hero's Journey—and by and large she succeeded. Her many obituaries rattle off her key wins for women's rights as a litigator before the Supreme Court, but they are worth revisiting here. In Frontiero v. Richardson, she got the court to rule unconstitutional a federal law that made it harder for husbands of women in the military to qualify for a dependent's allowance. In Weinberger v. Wiesenfeld, the court unanimously agreed with her that giving men and women different Social Security benefits after the loss of a spouse violated the Due Process Clause of the Fifth Amendment. In Duren v. Missouri, the court sided with her argument that women could not be barred from jury duty. These cases and others built a legal framework that lawyers could and still use to argue that discrimination on the basis of sex is illegal.
In total, Ginsburg argued six cases before the Supreme Court. She won five.
You could say that, from there, Ginsburg's story settles into the simple part, success and rewards. President Jimmy Carter appointed her to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Thirteen years later, President Bill Clinton nominated her to the Supreme Court, making her just the second woman on the bench in the court's history. Even more years passed and, as the Supreme Court became more conservative, Ginsburg became known for writing fiery dissenting opinions, like when she wryly noted, ''I might join the chief justice were it my commission to interpret Florida law" in her dissent to the Supreme Court's decision to halt the Florida recount of presidential ballots in 2000. Or her fiery takedown of the decision to gut the Voting Rights Act, to which she wrote, "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." I can't know if Ginsburg wrote these knowing they would go viral, but that was the end result.
Fame found Ginsburg in her 70s. A Tumblr dubbed her The Notorious RBG, which became a book. She became a feature of sit-down TV interviews and Saturday Night Live sketches. Not one but two movies, a biopic and a documentary, were produced about her and released in the same year. An outline of her face entered the public iconography; you may have seen it tattooed on people. That she achieved her fame late in life, at an age when most women have long been tossed aside for the culture's latest ingenue, only added to her story's allure.
If this were a Hollywood movie, this is where it would end. Our hero, her goal achieved, basking in glory, and probably also with the love of their life by their side. The screen would cut to black, the credits would role, everyone would be happy. But this is a Torah story.
How would things be different if Ginsburg had retired in 2013, at the start of President Barack Obama's second term, when Democrats held a Senate majority? Trying to re-imagine the now based on changing the past is, generally, little more than an invitation to make yourself feel really bad. But there is no ignoring that, even as far back as Obama's first term, people were asking her to retire. In 2011, Harvard law professor Randall Kennedy offered the story of Supreme Court Justice Thurgood Marshall, the civil rights pioneer for whom Kennedy had clerked, in the New Republic as a cautionary tale or, you could say, an example of hubris. Whenever asked about retirement, Marshall had insisted he would serve in his job for life. But his health forced him to retire in 1991 and, in response President George H.W. Bush nominated to fill Marshall's seat future Supreme Court Justice Clarence Thomas. Thomas was confirmed, despite Anita Hill coming forward and saying he sexually harassed her at work, and has become one of the most conservative members of the court.
Ginsburg never retired. It's widely theorized that Ginsburg, like many Americans, believed Hillary Clinton would win the presidency and Ginsburg planned to retire then, having the first female president appointing the replacement for the second-ever female Supreme Court justice. It's a lovely image to think about, a true fairy-tale ending, and I can sense how appealing an image this must have been to Ginsburg, a fitting way to close out her improbable and historic legal career. It just didn't come true. Instead, in 2020, we are left with Kennedy's words from 2011.
"Now, if Justice Ginsburg departs the Supreme Court with a Republican in the White House," Kennedy wrote, "it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas."
On Friday night, the news of Ginsburg's death still fresh, I first listened to the words of Rabbi Sharon Brous. Before reciting the Mourner's Kaddish, she reminded us, "We say Mourner's Kaddish for Justice Ruth Bader Ginsburg. We don't yet say Mourner's Kaddish for this country." We would mourn, and also we would fight on. Hours later, Rep. Alexandria Ocasio-Cortez took to Instagram Live with a similar message. "I need you to be ready," she said. It was another necessary reminder. Yes, Ginsburg's death should be mourned. Yes, the timing of her death put in further jeopardy our rights to equal access to voting, access to abortions, and restrictions on corporate spending in our elections. But despair won't solve the problem.
"Let this moment radicalize you. Let this moment really put everything into stark focus," Ocasio-Cortez said. "Because this election has always been about the fight of and for our lives. And, if anything, tonight is making that more clear to more people than ever before. And I’m going to tell you, it’s going to get more and more and more clear up until election day."
Torah stories teach us that our heroes will, at some point, fail us. Jacob cons his father into blessing him instead of his brother. Moses angers God so many times he's banned from entering the promised land. King Saul spends too much time worrying about the upstart David. The temple falls not once, but twice. But the story never ends there. Instead, those who remain pick up what remains, keep going, and try to learn and do better. You can be thankful for everything Ginsburg accomplished, and also still be disappointed by her postponement of retirement. You can be in awe of what she gave the feminist movement, while also disagreeing with her on Roe v. Wade. You can be inspired by her pushback when the court's conservative wing gutted the Voting Rights Act, and still be mad about how utterly wrong she was about Colin Kaepernick's protest.
She was not a Hollywood hero; she was little more than an Earth-bound mortal. But there is so much we can learn from her. The power of being open to new ideas. The way life's purpose can open up to you on accident. You just might hit a new pinnacle of your career in your 60s. Don't be so stubborn that you cannot see when it is time to step aside. It might not make for a good movie, but it does make for a good Torah lesson, one we can give our sons and daughters, so they can learn from it and do better for the world than Ginsburg could have ever imagined.