Stephen Daisley
Already a subscriber? Log in
But it was in women’s equality and sex discrimination that she pioneered new ways of thinking and reshaped the law for changing times. In 1972, she became the first female professor to gain tenure at Columbia and, as director of the ACLU’s Women’s Rights Project, argued her first case before the Supreme Court. In what would become a hallmark of her approach to sex discrimination, she contended that a law treating military wives as dependents discriminated against men because those married to a female service personnel were denied the dependent’s allowance paid to women. She was in large part responsible for embedding the view that sex discrimination harms men as well as women. Her beloved husband Marty, a tax law specialist who predeceased her by a decade, supported her career even as it came to eclipse his.
On the DC Circuit and later the Supreme Court, Ginsburg was an especially fast friend of the First, Fourth and Eighth Amendments, a critic of the death penalty, and an advocate for US judges taking international and foreign law into consideration. Her constitutional jurisprudence was evolutionist but she was a stickler for precedent and sometimes a progressive voice for judicial restraint, most famously in her critiques of Roe v. Wade, the 1973 decision that stumbled across a right to abortion hidden in the Fourteenth Amendment. Ginsburg was an implacable supporter of abortion rights – becoming the first Supreme Court nominee to affirm that position in her confirmation hearing – but she lamented the Roe court’s decision ‘to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force’. Had the Court merely struck down the Texas statute at issue, rather than producing such a sweeping opinion, it ‘might have served to reduce rather than to fuel controversy’.
While she was a hate-figure for some on the right, to progressives and millennials she was ‘the Notorious RBG’ and inspired a line of unofficial merchandise, memes and even a Hollywood biopic. Not all conservatives reviled her. Her late colleague Antonin Scalia, a giant of the legal right, hymned her abilities as a jurist even as they dissented vigorously from each other’s opinions. They frequented the opera together, Scalia sent her roses on her birthday and their families shared holidays, leading to a famous snapshot of the two riding an elephant in India. Scalia was not the only right-winger dazzled by her legal abilities and personal qualities. She was nominated to the Supreme Court by Bill Clinton on the recommendation of Republican Senator Orrin Hatch, an uber-conservative even by Utah standards. Her brilliance trumped dreary tribalism, which is as it should be.
Should be, but is not. The reckoning with her death will bear no relation to the dignity with which she lived her life. The all-out Armageddon over when, by whom and with whom her seat on the Court will be filled will be uglier than any Supreme Court battle yet seen. This is what happens when the highest court in the land becomes a supreme parliament, revising a ‘living Constitution’ so alive as to be positively hyperactive. If President Trump manages to replace Ginsburg with an originalist jurist, such as Seventh Circuit judge Amy Coney Barrett, it will solidify the ‘conservative’ majority on the bench for years to come. Were Trump to lose in November, the right would still have won the war. Until the federal judiciary returns to its proper, constitutional role, these will be the terms on which politics interacts with the courts.
Ruth Bader Ginsburg was an icon and an ideal. She inspired admiration and animus for her unique caste of mind and a facility for legal analysis and interpretation that could bring down adamantine edifices with just a few questions. Even as the body grew frail, her mind remained a prize-fighter. She was the first Jewish woman to reach the Supreme Court and credited her cultural heritage for its emphasis on justice. In her chambers hung a Hebrew verse from Devarim (Deuteronomy): ‘Tzedek, tzedek tirdof’ – ‘Justice, justice you shall pursue’. The time for politics will come but for now Justice Ginsburg, eshet chayil, should be remembered as Scripture instructs: ‘Extol her for the fruit of her hand, and let her works praise her in the gates.’
Because you read about donald trump
Also by Stephen Daisley
Latest
Comments
Join the debate for just $5 for 3 months
Be part of the conversation with other Spectator readers by getting your first three months for $5.
UNLOCK ACCESS Just $5 for 3 monthsAlready a subscriber? Log in