The Time We Lost Her
Friday, September 19, 2020. The first night of Rosh Hashanah. The days between the Jewish new year and the day of atonement, Yom Kippur, are for prayer, good deeds, reflecting on past mistakes and making amends. The first night, though, is mostly for contemplation and wishes for a good, new year - “L’shana tovah!” But on the first night of Rosh Hashanah in the year from hell, we lost a warrior. A goddess among women. A fighter for all. We lost the notorious one.
Like many of us, Ruth Bader Ginsburg represented possibility, strength, drive, and fearlessness. She was unflappable, hilarious, whip-smart, and had a heart that seemed to have no end. She fought cancers for decades, never missing an argument at the Court. She loved red wine and opera and her family. She worked out harder than a lot of us even well into her late eighties. Simply put, she was a legend. Except, she was a legend who laughed off her “notorious” title and fame, and focused on the work. For her, it has always been about the work. And that is what it has to be for us now, also.
Our tiny, mighty one, Joan Ruth Bader, was born to immigrant Jewish parents in Brooklyn in 1933. She was always inquisitive and smarter and funnier than everyone. After graduating from Cornell, she married Marty and then had a child before she entered Harvard Law School as one of nine women. Shortly after she began her first year, as Marty was in his second, he was diagnosed with testicular cancer. She took care of him and their infant, and attended her classes and his so he didn’t fall behind. When Marty graduated and landed a job in New York, and Ruth had one year left at Harvard, she transferred to Columbia to earn her degree and was first in her class. When the firms in which she was interested would not hire a woman, and a Jew to boot, she did what many of us are so grateful for - she taught law.
It was while she was teaching law that she argued in front of the Supreme Court for the first time. She worked with the ACLU and brought suit after suit in front of the Court. These cases all had one thing in common: men were being discriminated against for being, well, men. See, our Ruth knew that for the Court to rule on gender equality, the cases had to be about men facing gender discrimination, not women. She argued six gender discrimination cases in front of the Court before she became a federal appellate judge in 1980. In 1993, she was nominated by President Clinton to the Supreme Court. After her death, he said in an interview that he knew within ten minutes of talking to her he had to nominate her because he “wanted somebody who was open minded, passionately committed to equality.”
Let’s think about the significance of 1993 for a second. The elections of 1992 were dubbed “the year of the woman.” The Clarence Thomas Supreme Court confirmation hearings in 1991 split the nation among gender and racial lines as Anita Hill was called to testify about her allegations that Judge Thomas sexually harassed her when they worked together. An all-white, male Senate Judiciary Committee tried their best to humiliate her and cast her as an ambitious, scorned woman. But what this did was fuel the fire of women around the country to not only vote, but run. Run in droves. Five women were elected to the Senate in 1992, with the first Black women ever elected, and women’s representation in the House also expanded. It is in this election we start to discuss the gender gap - the fact that women vote overwhelmingly Democratic, while men vote more Republican. This gap was about 4% in 1992, and in 2016, it was 11%.
Now, back to our notorious one. With only one woman on the Court, Justice Sandra Day O’Connor, President Clinton had the opportunity to expand women’s representation as well as religious representation as there had never been a Jewish justice on the Court. At her confirmation hearing, this came up frequently. Her presence on the Court was not only historic because she was a Jewish woman, but it was historic because of how openly she discussed and defended her positions on gender-based discrimination. President Clinton spoke of her gender discrimination cases saying that, “Before she ever even went on the Court of Appeals, she'd done enough to shape American law for a generation.” This was seen more as a benefit to her, and the Court, as opposed to a detriment. I would never directly compare Anita Hill’s treatment in front of the Committee to Judge Ginsburg’s; I would simply note that in the intervening time between the two, there was finally a woman on the Judiciary Committee, and that after the 1992 election, the country was progressing in its acceptance that in fact women face gender-based discrimination.
Once on the Court, our trailblazer continued her fight. She wrote the majority opinion in United States v. Virginia (1996) that no longer allowed the Virginia Military Institute to bar qualified female applicants. She wrote “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
In Olmstead v. LC (1999) her majority opinion focused on the rights of individuals with disabilities, including mental illness, stating “unjustified isolation perpetuates assumptions that persons so isolated are incapable or unworthy of participating in community life.”
In 2003, when Ledbetter v. Goodyear Tire & Rubber Company came before the Court, Justice Ginsburg not only dissented when the majority sided with Goodyear because the statute of limitations had run out on a suit claiming unfair pay, she read a more lay-person’s version of her dissent from the bench. The second sentence out of her mouth was, “In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discriminations.”
In Shelby County v. Holder (2013), when the majority overturned a section of the 1965 Voting Rights Acts requiring states with a history of suppressing Black voters to clear all electoral changes with the US Department of Justice, she dissented writing, “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.”
Finally, in 2016 when the Court struck down a Texas bill that put severe restrictions and requirements on abortion providers (Whole Woman’s Health v. Hellerstedt), Justice Ginsburg wrote a concurring opinion arguing “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners...at great risk to their health and safety.”
She was not only a fighter for justice and equality, but she was shrewd in her rebukes of legal attempts to take them away. She was meticulous in her arguments and pointed when necessary. She cared about decorum and civility, but also knew when it was appropriate to shed conventions to make a point. For example, when a justice dissents, traditionally, the opinion begins or ends with “I respectfully dissent.” When Justice Ginsburg wrote her dissenting opinion in Bush v. Gore (2000), the very last line was two words: “I dissent.” And the elevation to legend begins. From memes, to jewelry, to Halloween costumes, to Kate McKinnon’s hilarious portrayal on SNL, to documentaries and movies, The Notorious RBG watched over all of us. She guided all of us. She grounded all of us. She was us. And now, she is gone.
I sit here, with tears hitting my keyboard, about to go talk to my eager young political science students about this tremendous loss. I am nauseous and tired. I am shaky and hopeless. My heart is pounding. I am in mourning. So are they. We mourn for our champion's family and friends. We mourn for a country that feels less just and fair now. We mourn for an institution that is yet again caught in a partisan game of chicken. We mourn. Not only is there a hole left on the Court, but there is a whole left in our world.
As we wished L’Shana tovah during Rosh Hashanah, it feels unlikely that a good year ahead does not include our tiny giant. It just doesn’t seem right that she is no longer here. Nonetheless, according to Jewish tradition, a person who dies on Rosh Hashanah, is a “tzaddik,” a person of great righteousness. Only the most deserving is honored with a death during our new year. Moreover, the Hebrew root of tzaddik is “tzedel,” which means “justice.” In her death, Joan Ruth Bader reminds us that justice is not served because of one person’s presence in a classroom, or on a law review. It is not because of one person arguing in a court room, or serving on the Court. It is a mindset. A mission. It must be our mission. Our departed heroine said of her legacy that she wants to be remembered as “Someone who used whatever talent she had to do her work to the very best of her ability. And to help repair tears in her society, to make things a little better through the use of whatever ability she has.” Her legacy should not be just that she did this. Her legacy should be our calling. To honor her, and all she meant to us, we have to do the same. We have to find small ways to make the world the place she knew it could be, the place she tried to make it. As we mourn her, let us not mourn for our democracy. Let us fight for. Let’s get to work…for her.
Author: Suzanne Chod