Two Tributes: On RBG and her legacy

Friday, September 25, 2020 - 1:34pm

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Illustration by Eileen Kelly

This dual column was written in the wake of Justice Ruth Bader Ginsburg’s passing in September. Scroll through to read both writers’ reflections.

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Following in her footsteps

Marisa Wright, Statement Deputy Editor

Late in the evening of the Jewish New Year Rosh Hashanah on Sept. 18, Justice Ruth Bader Ginsburg passed away from complications related to pancreatic cancer. 

Upon hearing the news of her passing, it is understandable why so many responded with punditry on the upcoming battle over her replacement on the Supreme Court of the United States and its intersection with the upcoming election on Nov. 3. Recognizing the possibility that Trump could appoint a nominee to tip the balance of the Supreme Court to a 6-3 conservative majority, Ginsburg said just days before her death, “My most fervent wish is that I will not be replaced until a new president is installed.”

Of course, some have criticized her for years about refusing to step down while President Barack Obama, along with the Democratic-controlled Senate, could appoint her successor before the 2014 midterm elections. Nodding toward the increasingly partisan nature of Senate confirmation votes since her own 96-3 confirmation in 1993, she often responded with the argument: “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” 

To carry out her final wish, there is so much of all us can do — donating to Senate candidates in swing states, making sure our friends have requested their absentee ballots or phone banking for the Biden-Harris campaign to turn out the vote, to name a few. Here, though, I want to take a moment to appreciate the legacy of her life, work and jurisprudence.

Ginsburg was a trailblazer, especially so for women, but also for men — many of the cases she argued involved male clients who claimed damages as a result of laws written based on traditional gender roles. In Weinberger v. Wiesenfeld (1975), Ginsburg successfully argued on behalf of her male client who had been denied Social Security benefits because he was a man and the law only provided benefits for widows who were the sole caregiver of their child. 

As a professor and founder of the American Civil Liberties Union’s Women’s Rights Project, Ginsburg helped establish the first case law that extended the Fourteenth Amendment’s equal protection clause to protect women from discrimination on the basis of sex in Reed v. Reed (1971). Indicative of her place in a long line of women who fought for women’s legal rights, she credited Dorothy Kenyon and Pauli Murray as co-authors of the case’s brief in acknowledgment of the work they had done in laying the foundation for legal protections for women. 

Ginsburg’s unique approach of expanding legal rights for women by taking on laws that also hurt men didn’t end there. Disagreeing with many feminists at the time, she took issue with the legal basis of the rule established in Roe v. Wade (1973). Instead of basing abortion rights on the right to privacy as included in the Tenth Amendment’s penumbras, Ginsburg believed the case should have been argued on the basis she helped establish in Reed. Specifically, she argued that laws criminalizing abortion violated the Fourteenth Amendment’s equal protection clause because they discriminated on the basis of sex, meaning they should be subjected to a strict scrutiny review by the Court. Under this heightened and more stringent review, she believed, laws banning abortion would almost certainly be struck down. 

Throughout her career and her work as the second woman to serve on the Supreme Court, Ginsburg helped establish legal rights for women that seem basic now but were quite revolutionary in the late 20th century. Women today owe the following rights in part to her work: the right to sign a mortgage without a male co-signer, the right to open a bank account without a male co-signer, the right to pursue redress if employers discriminate on the basis of sex, be employed without being discriminated against based on gender and the right to be employed while pregnant and caring for children.

Her work paved the way for these fundamental rights, but it was the way she lived her life that paved the way for generations of female lawyers, judges and justices beyond her. Her jurisprudence became so influential that she was nicknamed the “Notorious RBG” by NYU Law student Shana Knizhnik for her powerful dissent in Shelby County v. Holder (2013) after pointing out the absurdity of Chief Justice John Roberts’s majority opinion.

As the nickname was popularized and plastered on tote bags and mugs, the meme-ification of Ginsburg took on a life of its own. Kate McKinnon even portrayed her on “Saturday Night Live” but after seeing the video, Indie Wire reported that Ginsburg found “the comedian ‘marvelously funny, even if the impression resembles her ‘not one bit.’” In fact, many, including her longtime friend and law professor Jeffrey Rosen, at first find her “austere” and mistake her silence for “inaccessibility.” 

Her warmth and care for others, however, is evident in the way she thought about the law. She saw her work as building toward a more “embracive” Constitution, one that eagerly welcomes previously marginalized groups — women, people of color, queer people, etc. — in order to fulfill the promise made by the Framers of the Constitution in 1787. For a woman to set out to fundamentally change the role of the Constitution to protect vulnerable people as she did in the 1970s was quite literally revolutionary. 

She believed so deeply in this mission that even her personal life became dedicated to working toward her vision of justice; her famously-egalitarian relationship with her husband, Marty Ginsburg, was aptly summed up as one in which “(Marty) did the cooking and she did the writing and he picked up the kids from school and she did the writing. And, you know, he went to the meetings when the kids were bad and she did the writing.” 

In my own life, Ginsburg has served as a guiding light throughout my decision to pursue law school. Applying to law school, which I have been doing for the last six months, is a notoriously difficult and exhausting process. Studying for the Law School Admission Test (LSAT) alone is a huge undertaking. I’ve often turned to rewatching “RBG,” the documentary of her life or “On the Basis of Sex,” a biopic of her early sex discrimination work. I referred to reading my favorite passages of “In My Own Words,” a book-length compilation of her speeches and writings, for inspiration to continue on.

For all of us, Ginsburg’s death is a painful reminder of how much work there is left to be done. Women have not yet experienced gender equality in the U.S., and progress toward that end is likely to be dismantled by a 6-3 conservative Supreme Court if Donald Trump and Mitch McConnell succeed in stealing another seat on the bench without regard to the outcome of the election in November. With a case about the Affordable Care Act scheduled for arguments a week after the election and Republicans gunning to overturn Roe v. Wade outright, along with other cases that guarantee civil and voting rights, the need for feminist lawyers is perhaps more exigent than ever, and alongside all of the women before me, I plan to follow in her footsteps. 

Her life and legacy mean I have the opportunity to pursue an independent life and career in the law, working to advocate for women and other marginalized people. Her work is the foundation every feminist lawyer should strive to build upon, and even in death, Ginsburg continues to be a trailblazer: On Sept. 25, she became the first woman to lie in state at the U.S. Capitol in our nation’s history. 

May her memory be a revolution. 

***

Cry now, rally tomorrow

Andie Horowitz, Statement Deputy Editor

There’s nothing more disorienting than waking up from a dream that feels like real life. As my eyes opened from figurative to literal darkness, sweat dripping down my chest, I counted heartbeats to calm my rapid breathing.

In for six, out for four.

I grabbed my sheets in my left hand, my stuffed animal (one of ten) in my right in an unsuccessful attempt to ground myself in reality. Nothing was working — the nightmare I just endured felt all too real. 

It was sometime in the distant future, the world filled with gray colors and dreary undertones. I was dressed in a strangely familiar red cloak — one that I had seen before, but couldn’t exactly remember where from. I raised my eyes from focusing on myself and turned to the society around me. I saw women dressed in this piercing red cloak everywhere in a uniform manner. Suddenly, it hit me. I had seen this off-putting environment before: it was the dystopian framework of “The Handmaid’s Tale.” As the world around me morphed into one by defined extreme fascism and a lack of autonomy, I felt my stomach drop. The gut-wrenching feeling triggered my consciousness and pulled me back into the familiar setting of my room.

Under normal circumstances, I could’ve easily dismissed this dream as a distorted fluke of my wildest imagination and carried on with my night. This wasn’t a normal night. It was hours after the passing of the revered Supreme Court Justice Ruth Bader Ginsburg. My nightmare was a projection of my anxiety from Sen. Mitch McConnell’s insensitive, opportunistic response to replace her seat just a few short hours after her death was announced. It not only scared but deeply disheartened me that we, the collective, let the fate of the U.S. fall on the shoulders of an 87-year-old woman — a giant not only fighting her country’s political battles but her own medical obstacles as well. 

She deserved better than the reaction of horrified citizens plagued with crippling fear. She deserved to be celebrated and honored for everything she had done for us. And in order to mitigate my personal anxiety, whether it be manifested in a dream or in everyday thoughts, I am attempting to channel my sorrow in a more productive way — one more fitting of the beautiful life she lived. Here’s to you, RBG. 

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RBG set the path for my life since I first learned of who she was. I was introduced to her in my eighth-grade history class when learning about the Supreme Court. Though her story wasn’t told in its entirety, she was described as the second female-appointed Supreme Court justice in the history of the U.S. — a trailblazer and champion for women’s rights. I was fascinated by her with just that description.

As I independently researched after school that day, I learned more about her upbringing and career. She was a  Jewish woman from Brooklyn — a background that mirrored my own, as a Jewish girl from New Jersey — constantly challenged by male peers who did not want her to succeed. Yet she succeeded anyway, and she did it impeccably. She was one of only nine women in her year at Harvard Law School, and successfully maintained the position as first in her class. Despite this incredibly impressive standing, she was denied from 12 law firms following her graduation. She persevered and trusted her intellect, working as first a clerk for a law firm, then a professor and eventually, became the creator of the ACLU Women’s Project. 

During her time at the ACLU, RBG fought for gender equality in now considered landmark Supreme Court cases such as Frontiero v. Richardson, in which a precedent was established to hold gender to higher scrutiny than the rational basis standard. She also argued for gender equality in Weinberger v. Wiesenfeld, in which she used an instance of gender discrimination against a man to help further establish precedents for future cases. RBG continued dismantling once normalized discriminatory gender practices throughout her career, arguing cases with an unparalleled eloquence, and landing her a seat on the Supreme Court with a 96-3 confirmation vote. 

She is the reason I can independently manage and spend my earnings without male consent. She is the reason I can independently seek and own housing without male consent. She is the reason I cannot be denied employment based on gender. She is the reason I cannot be fired for being pregnant or having a child. 

Ruth Bader Ginsburg was the direct and sole catalyst for so much progress this country has made.

The more I learned, the more I was inspired to follow in her footsteps. She became the voice in my head; somewhat of a guardian angel guiding me in what academic steps to take and career decisions to make. 

I became focused on studying government and political science, with hopes of going to law school — I geared my entire undergraduate college application toward that goal. I joined a pre-law organization because of her. I plastered pictures and RBG paraphernalia all over my room — like my Ginsburg socks, a calendar, a mug, three separate posters, a pillow and a desk plate that read “Do all the things with the confidence of Ruth Bader Ginsburg dissenting.” I saw every movie or TV feature about her. 

I couldn’t believe it when I found out she passed away. It breaks my heart thinking about it. And while I mourn, I find strength in knowing that she never gave up. She worked tirelessly, without complaining, until her final moments. RBG knew what she believed in; she had a strong moral compass, and it was her dying wish to protect that. So, now I ask myself, what more can I do to follow in her footsteps? How can I fight for positive change in the world? 

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Thirty minutes after I woke up from my far-too-real nightmare, I lay staring at the ceiling, tearful in RBG’s honor — for her life, for her legacy, for all she left behind for us to pick up. With this in mind, I remember how much there still needs to be done. I remember her spirit of perseverance, and how she continued to hold her head high against all odds. And while the odds appear intimidating, that’s all the more reason to continue pushing forward: Continue signing petitions, writing letters to government officials, calling local and national representatives, registering people to vote, studying law, protesting in the streets for what is right. If anything, we must do it for her. 

Taking a deep breath, I let one more tear roll down my face. I closed my eyes, slowly falling back to sleep, seeking solace in the fact that while I may cry now, I will rally tomorrow.


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