Her first post was the umbrella line from the dissent in Holder. But of course, once she got going the hits just kept on coming: ostriches from the dissent in Fisher v. University of Texas; her colleagues’ self-fulfilling prophecy that re-counts wouldn’t work from the dissent in Bush v. Gore; the YouTube video from Ginsburg’s appearance with Diane Sawyer, where she suggested that nine would be a nice number for female justices. Before the day was out the first T-shirt appeared, a conventional image of the justice in her robe with the frilly collar. Twenty-four hours later, a Notorious T. Then a picture of her with the BIG crown and sparkly stars. The day after that, New York magazine’s “The Cut” reported that Ginsburg had joined Beyoncé and Hillary as an Internet phenom. Before a week was out, the trend spotter BuzzFeed was on it: “19 Reasons Ruth Bader Ginsburg Is Your Favorite Supreme Court Justice—R.B.G. is a complete and total boss. Plain and simple.” Bluewater Comics published a Ginsburg volume in its comic book series Female Force.
And so the year went by. There was an entry for every holiday. The annual Halloween contest in the gossipy website Above the Law displayed R Baby Ginsburg in its crib with a white lace collar around a black robe, a tiny pair of round glasses, and a gavel where the rattle would normally be.
And Christmas witnessed the birth of Ruth Slayder Ginsburg, superhero with a judicial robe cape and a white jabot. You violated the Fifth Amendment, the RBG Valentine proclaimed in February, when you took my heart without due process.
Justice Ginsburg knew right away that she was Notorious. Her clerk Josh Johnson’s wife saw the Tumblr page as soon as it went up and the clerks took it to the justice. Once her law clerks explained who Notorious had been, she was all over it.
When an old Ginsburg friend, Janet Benshoof, heard about it over at the women’s rights organization Global Justice Center, she told her interns they should make a rap video, and she would send it to the justice. They decided to use Notorious B.I.G.’s insurgent song “Juicy” as their model. The brainy girls Kelly Cosby and Elizabeth Gavin set about learning everything they could about the justice, including some fairly obscure stuff such as her encounter with Dean Erwin Griswold and her wardrobe of symbolic collars. Gavin had a friend who did sound recording and knew a guy who actually made and edited music videos. The kids closed the Global Justice Center for a day, and everyone pitched in.
Where Notorious B.I.G. had dedicated his work “to all the teachers that told me I’d never amount to nothin’,” “RBGuicy,” performed by two tea-sipping brunettes, Kelly Cosby and Beth Gavin, in RBG T-shirts, sunglasses, and jeweled collars, is dedicated
to all the judges that told me I’d never amount to nothin’ because of my gender, to all the people that lived in their ivory towers that I was hustlin’ in front of,
that tried to buy me off by putting Susan B. Anthony on the dollar,
and all the women in the struggle, you know what I’m sayin’?
Ginsburg loved the attention. In the reception area for the New York City Bar Association’s annual Ruth Bader Ginsburg Distinguished Lecture on Women and the Law, where she was going to introduce the speaker, Justice Kagan, the rap song was playing on a giant video screen. Ginsburg admitted to Janet Benshoof that she watches it when she’s feeling down.
NO TRUTH WITHOUT RUTH
Many justices dissented. But Justice Ginsburg was the only dissenter in history who had a rap song. The RBGuicy raps, “Now I’m in the limelight cuz I decide right.” The law students who turned her into a cultural icon were not just enamored of her lace gloves. They put her in the limelight, as the rap song went, cuz they thought she decided right. At a moment when the Court was firmly in the grip of a conservative majority, the eruption of support for the tiny old rich grandmother with the radical principles was a political act, even though in 2013 she was losing on almost every issue she cared about.
Changing the culture on subjects such as affirmative action, defendants’ rights, and employment discrimination is an agonizingly long process. That process depends in turn on the election of a president and a Senate inclined to seek appointments of a different mind-set. Before that can happen, the minds of people likely to seek office and the voters who elect them must change. But it’s no wonder that sixty years elapsed after Justice Harlan warned his brethren that separate could never be equal before the Court ordered desegregation in 1954.
Dissents are the seeds of that process. The dissent is made for the Internet: it is inherently confrontational. Armed with life tenure and disinclined by nature to try to patch together a centrist compromise, Justice Ginsburg repeatedly produced radically confrontational rhetoric directed at her retrograde male colleagues. Listening to her flay them with her logic made the viewer feel genuinely empowered. In the demographics of the Supreme Court even the visuals—the three women and their male ally, Justice Breyer, on one side and five male conservatives on the other—work perfectly.
In any story of power in the twenty-first century, the power of the Internet to make social change is the wild card. The creator of the Notorious R.B.G. phenomenon is gay as well as liberal. (The individuals behind Texts from Hillary are also gay.) And no social movement in America has made better use of social media than the gay revolution. Ruth Bader Ginsburg’s emergence as a cultural icon actually started in the spring of 2013 with her indignant interrogation of the lawyer for the Republican Congress defending the antigay Defense of Marriage Act about real marriage and skim milk marriage. That summer she became the first Supreme Court justice to perform a same-sex marriage ceremony. And she was well aware of the message her decision conveyed. “She wasn’t saying there was a constitutional right to marriage,” her clerk Josh Johnson says. “Washington, D.C., had already made that decision. They were entitled to be married. But she was clear on how her actions would play in the public realm.”
THE DISSENT AS ARIA
A year after she went viral on the Web, Ginsburg issued her most potent dissent, disagreeing with the stunningly antiwoman decision allowing employers to exclude birth control from their health insurance, Burwell v. Hobby Lobby. Ginsburg’s dissent in Hobby Lobby is a veritable “Se vuol ballare,” the incendiary aria that Mozart penned for the upstart servant Figaro in his opera The Marriage of Figaro just before the French Revolution. Like Figaro, Ginsburg reminds the men in power, the majority, that they may now hold the power, but, as Figaro says, in time: “If you want to dance, my dear little Count, It is I who will call the tune, If you’ll come to my school, / I’ll teach you how to caper!”
The majority had ruled that the billion-dollar Hobby Lobby craft store chain did not have to cover contraception for its female employees under the federal health-care law. Some contraception, such as the widely used IUD, struck the owners as somewhat like an early abortion and thus violated their sincerely held religious beliefs. Despite its grounding in disputes about religious freedom, Hobby Lobby was not a First Amendment case. Rather, the Court held, it was applying the Religious Freedom Restoration Act, a 1993 federal law, which mandates that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” To exempt Hobby Lobby from the health-care law, the Court had to take some pretty bold steps. First, it found that profit-making corporations, just like real human beings, could be “persons” who had religion. Then it found that although women’s health, including their contraceptive needs, might be a serious-enough matter to warrant restricting religion, the United States had not shown that the health-care law was the least restrictive means to protect that interest. Maybe the insurance companies Hobby Lobby used could just pay for the women’s IUDs, Justice Alito suggested. Or the government itself, if it was so interested in women. Maybe in the form of a tax credit. Some of these oblique approaches were already being used by churches, which had gotten an opt out.
Ginsburg dissented. The Hobby Lobby owners’ sincerely held religious beliefs were too attenuated from the use of contraception to be harme
d by the health-care law’s requirements. After all, “the decisions whether to claim benefits under the plans are made not by Hobby Lobby … but by the covered employees… . Should an employee … share the religious beliefs of the [owners], she is of course under no compulsion to use the contraceptives in question.” Even if the Hobby Lobby folks were properly upset, she continues, there is no viable less restrictive scheme. Hobby Lobby and the other health-care resisters refused to concede that they’d be satisfied with letting their insurers cover the dreaded birth control methods indirectly, the deal Congress gave to churches. Resistance to that accommodation for the churches was, at the time, already making its way to the Supreme Court. With nothing left but letting the government pay for Hobby Lobby’s belief system, she concludes, the health-care law was not set up to dump the uninsured employees of religious hobby store chains onto the public fisc. It’s cumbersome, expensive, and not fair to other employers.
But none of this was the real point of Ginsburg’s pointed dissent. She was fighting the latest battle of her lifetime war to have women treated the same as any other social group. Although both Justice Alito, for the Court, and Kennedy, concurring, say they recognize women’s health as a compelling government interest, in fact, Hobby Lobby carves out a special exemption from the health-care law for those who object to benefits for women. And nothing else. Ginsburg calls the majority on it in graphic terms: “Where is the stopping point to the ‘let the government pay’ alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage,” she asks, citing the cases where exactly those arguments were made (and rejected). Why, a religious organization even tried to use its beliefs to get out of according women equal pay for substantially similar work.
“Would the exemption,” she asks, that the Court extends to “employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?”
On these issues which do not harm women exclusively, she notes, “The Court … sees nothing to worry about.” The Court expressly said that its “decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” What is this, the reader can hear her saying, a one-off that allows the Court just to punish women?
Jonathan Mann, the Internet song-a-day guy, promptly turned the opera-loving feminist’s great dissent into a song, uploaded it to the Notorious site, and broadcast it over YouTube.
GINSBURG AND KENNEDY
The long confrontation between Ginsburg and Kennedy over the emancipation of women is always on the table. In Hobby Lobby, the majority said it took women’s health as a compelling interest. Kennedy, making the crucial fifth vote, was at pains to describe the government’s compelling interest in providing insurance coverage for birth control on the grounds that “There are many medical conditions for which pregnancy is contraindicated.” Ginsburg’s dissent makes clear the universe of difference between Kennedy’s concern for women with, for example, severe heart disease and the real reason contraception matters to women: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” she wrote, quoting Kennedy’s own opinion in Planned Parenthood of Southeastern Pa. v. Casey. “Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs.”
Six weeks after the decision, in August 2014, Justice Ginsburg gave an interview to Katie Couric. She decried the inability of most of her male colleagues to understand the lives of women well enough to see the importance of contraception. She hoped they would evolve, under the benign influence of their “wives and daughters.”
A few short weeks later, Ginsburg took the opportunity to reiterate her profound disagreement with Justice Kennedy on the subject of women: “What concerned me [in Gonzales v. Carhart, the “partial birth abortion” case] about the Court’s attitude, they were looking at the woman as not really an adult individual,” she told Couric. “The opinion said that the woman would live to regret her choice. That was not anything this Court should have thought or said. Adult women are able to make decisions about their own lives’ course no less than men are. So, yes, I thought in Carhart the Court was way out of line. It was a new form of ‘Big Brother must protect the woman against her own weakness and immature misjudgment.’” The author of the opinion in Carhart was none other than Justice Anthony Kennedy.
After her raft of public appearances in the summer of 2014, pundits speculated that she was trying to use public shaming on Justice Kennedy, who is notoriously conscious of his public image. And it may work.
The Internet troubadour Jonathan Mann sings it:
Chorus: OH the Court I FEAR has ventured into a minefield
Of slut-shaming geezers and religious extremism.
Ginsburg would never call them geezers, but at the end of the day, you can hear her warbling along with Mann’s last line:
Oh, but one thing’s CLEAR this fight isn’t over we gotta stand together for what we know is ri-i-ight.
What is right? In the summer of 2014, as the calls for her to step down intensified in face of the imminent Republican takeover of the Senate, she abandoned her stance of political neutrality on the subject of retirement. Even before the midterm election, she asked in her interview with Elle magazine, “Who do you think President Obama could appoint at this very day, given the boundaries that we have?” she asked. “If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” Any Republican might have been enough for the pragmatic Sandra Day O’Connor, when she contemplated retirement on election night in 2000, but the theorist Ruth Bader Ginsburg wouldn’t give up her seat even for any Democrat. She was waiting for someone just like her.
On November 4, 2014, the Republicans captured the Senate.
On November 25, 2014, Ginsburg began experiencing chest pains during her workout with her personal trainer. Doctors implanted a stent in her artery the next day; four days later, she took her customary seat on the bench for oral argument.
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Our Heroines
And so the story of Justices Ginsburg and O’Connor comes full circle. In most versions of the story, Sandra Day O’Connor is the icon and the cultural engine of change. A WASPy country club Republican with a passion for low taxes and states’ rights, she was the only kind of woman who could have carried Ronald Reagan’s rash promise of a female justice all the way to the high court. When push came to shove, she was loyal to the Republicans who put her in her high place. With her stiff-upper-lip rendition of the model minority, she was the perfect First.
She certainly made it easier for her sister in law, Justice Ginsburg. O’Connor was determined not to be the last, she said. After her arrival in what Justice Stevens described as their “trouble”-free integration, when President Clinton nominated Ginsburg, no one on the Supreme Court would have dared to utter a peep.
When Ginsburg first hit the public scene, she, the brainy Jew from Brooklyn with the ACLU card, was not an obvious candidate for the symbol of digestible social change. Her contribution
was more in the arena of razor-sharp legal analysis and a farsighted strategy that would bring about social change, as Thurgood Marshall did, step by step. Until the Court had gone too far to turn back the clock.
As O’Connor had made it easier for her, she had made it easier for Elena Kagan, the first female dean at Harvard Law School, the first woman to serve as solicitor general, and the fourth WOTSC. Appointed in 2011 and now the youngest woman on the Supreme Court, she credits Ginsburg, her oldest colleague, with making her career possible: “As a litigator and then as a judge she changed the face of American antidiscrimination law.” The barriers lifted, and Kagan rose just as traditional liberal feminism would have predicted.
Then something unexpected happened. With the gift of the new media, Ginsburg herself became an icon. A half century after she took the helm at the ACLU, Ginsburg, with her minuscule frame, her classical taste in music, her subtly expensive outfits, her long, happy marriage, her children and grandchildren, seemed the embodiment of conventionality—until she opened her mouth. To the generation of young women hungry for reassurance about the normalcy of female power, as the Court increasingly began turning back the clock, such an unlikely ally was a gift from heaven. “That she was still so radical!” Knizhnik crows. “After all these years.”
Less visibly, the story took a final turn. As the Court began to roll the clock backward, the long-retired Justice O’Connor, whose uninspiring prose and uninformative analysis made her seem like the furthest thing from a big legal thinker, began to seem, in retrospect, like a gift from the gods of jurisprudence. Sounding so conservative and framing her mildly pro-woman decisions time after time as protective of authority—employers, school administrators—she represented the farthest women could hope to go in light of the irresistible conservative resurgence of the late twentieth and early twenty-first centuries. From the first women’s rights case of her tenure to the last case she decided in 2006, she made the law for women more liberal or at least preserved the gains of the past. Public colleges are not segregated by sex, nowhere in the United States is abortion automatically criminal, and the Civil Rights Act prohibits employers from asking their employees to come down to the motel and negotiate their raise.
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