I recently saw the documentary RBG about Justice Ruth Bader Ginsburg, her personal and professional background, her appointment to the Supreme Court in context, and her work since that time. While it wasn’t quite as gripping (believe it or not) as the Fred Rogers documentary, it was impossible to leave the theatre without more appreciation for all this woman has done to improve equality for all citizens, both men and women, and to ensure equal protections under the law.

In 1993, Ruth Bader Ginsburg was the second ever woman who became one of the Supreme Court Justices (after Sandra Day O’Connor). RBG was born in 1933 to Russian Jewish immigrants. She graduated from Harvard Law School as one of only nine women in a graduating class of nearly 500. Despite being among the top 25 students in her graduating class, the Dean scolded her (as well as other female students) for taking a seat away from a man who might have a family to provide for, asking “How do you justify taking a spot from a qualified man?” She graduated in 1959, tying with another student for the top position.

“My mother told me two things constantly. One was to be a lady, and the other was to be independent. The study of law was unusual for women of my generation. For most girls growing up in the ‘40s, the most important degree was not your B.A., but your M.R.S.” RBG

She married her college sweetheart Marty; together, they raised two children, but she was the more driven one, the workaholic who was tireless in pursuit of her clients’ interests. Marty was happy to support her ambitions and proud of her accomplishments. She was the serious one; he was jovial and gregarious. He was a fantastic cook whereas she had no business being in the kitchen. In 1960, armed with her hard won law degree, she found it difficult to be hired, despite the strong recommendation she had from one of her professors who was later the Dean of Harvard Law School. Future Supreme Court Justice Felix Frankfurter specifically rejected her for a clerkship based on her gender, despite her strong academic credentials and performance. Perhaps because of the gender discrimination that was a barrier to her in the US, she learned Swedish to co-author a book on civil procedure in Sweden. While in Sweden, she observed that women were nearly a fourth of law students, and one judge Ginsburg observed worked while eight months pregnant. This experience highlighted the discrimination and inequality she saw when she returned to the US. She knew that if she wanted to improve equality in this country, she would have to do it by influencing policy-makers. “If you’re going to change things, you have to be with the people who hold the levers.” RBG In 1963, she was offered a professorship at Rutgers Law School. They informed her that she would be paid less than her male colleagues because she had a husband with a well-paid job. She was one of fewer than twenty female law professors in the US at the time. She finally received tenure in 1969, and continued to work there until 1972. She taught at Columbia from 1972 to 1980. Despite the discrimination she experienced, she also maintained a quiet optimism: “You think about what would have happened … Suppose I had gotten a job as a permanent associate. Probably I would have climbed up the ladder and today I would be a retired partner. So often in life, things that you regard as an impediment turn out to be great good fortune.” RBG And yet, she didn’t excuse the discrimination she suffered or consider it to be acceptable: “All I can say is I am sensitive to discrimination on any basis because I have experienced that upset.” RBG Several of her most important cases were during the 1970s and the film highlights several of these landmark litigations:

Frontiero v. Richardson. A female military service member was being denied the increased housing allowance for her husband that all her male counterparts received for their wives. Ginsburg argued that the state treated women as inferior. The Supreme Court backed her 8-1. “Feminism … I think the simplest explanation, and one that captures the idea, is a song that Marlo Thomas sang, ‘Free to be You and Me.’ Free to be, if you were a girl—doctor, lawyer, Indian chief. Anything you want to be. And if you’re a boy, and you like teaching, you like nursing, you would like to have a doll, that’s OK too. That notion that we should each be free to develop our own talents, whatever they may be, and not be held back by artificial barriers—manmade barriers, certainly not heaven sent.” Weinberger v. Weisenfeld. A widower was denied survivor benefits when his wife died due to post-partum complications. Then Social Security statutes denied males to collect special benefits for the caring of minor children that were granted to women. Again, the Supreme Court agreed with her. “Women will only have true equality when men share with them the responsibility of bringing up the next generation.” As a result of an amicus brief she filed in Craig v. Boren, a case challenging a statute that set different minimum drinking ages for men and women, the court imposed a heightened standard of Constitutional review for any laws that discriminated based on gender. “[J]ustices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.” Duren v. Missouri. She challenged a Missouri law that allowed women, but not men, to opt out of jury duty, citing jury duty as every citizen’s civil responsibility. Prior to that, women defendants seldom had many women jurors in their trials in that state because women would avoid jury duty when given the option. Notoriously conservative (then-Associate) Justice Rehnquist sardonically asked her, “You won’t settle for putting Susan B. Anthony on the new dollar, then?” She held her tongue rather than quipping her immediate retort: “We won’t settle for tokens.” [1]

“When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.” RBG

She was nominated to the Supreme Court by Bill Clinton in 1993 after a recommendation by US Attorney General Janet Reno and a suggestion by Utah’s own Orrin Hatch. Hatch’s admiring comments about Ginsburg were peppered throughout the documentary. She won the nomination despite devoting a significant amount of time in her Senate hearing to the topic of abortion, a topic ill-suited to gaining support among conservatives who might have been likely to oppose her nomination for partisan reasons anyway.

“The emphasis must be not on the right to abortion but on the right to privacy and reproductive control.” RBG

Ginsburg also saw the injustice of anti-abortion laws that disproportionately harmed those most likely to need them: women living in poverty. She noted that

“Contraceptive protection is something every woman must have access to, to control her own destiny.” RBG

And she further noted that

“We will never see a day when women of means are not able to get a safe abortion in this country.” RBG

This opinion–that all women must have the ability to control their own reproductive activity–is one she still holds firm, including in her dissenting opinion on the Hobby Lobby ruling:

“I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief.” RBG

Ginsburg worked with her fellow Justices, regardless of their individual views and was a particularly close friend to conservative Justice Scalia who shared her love for Opera. They developed a lasting affectionate bond despite the ideological gulf that separates them. As a Supreme Court Justice, Ginsburg has used dissenting opinions to articulate a clear position on which all dissenting justices can agree. It’s an interesting approach, one that has led to faster progress because it puts a clear stake in the ground, one that is practical and not too far-reaching, a harmonization of multiple perspectives.

“Dissents speak to a future age. It’s not simply to say, ‘my colleagues are wrong and I would do it this way,’ but the greatest dissents do become court opinions.” RBG

She elaborated in another interview about why she still felt hopeful when (her) dissenting opinion did not persuade the majority of the other justices:

“I’m dejected, but only momentarily, when I can’t get the fifth vote for something I think is very important. But then you go on to the next challenge and you give it your all. You know. that these important issues are not going to go away. They are going to come back again and again. There’ll be another time, another day.” RBG

This is a helpful perspective for those of us who are progressive in such a conservative church as ours. Having served for so long on the Supreme Court, she also has a lot of valuable observations about being a Justice.

“We care about this institution more than our individual egos and we are all devoted to keeping the Supreme Court in the place that it is, as a co-equal third branch of government and I think a model for the world in the collegiality and independence of judges.” RBG

After the documentary came out, two new impending vacancies to the Supreme Court came open, and Trump has nominated Brett Kavanaugh, causing a surge of hand-wringing among liberals who fear he was chosen because of his record showing he believes in expansive executive power and that sitting Presidents should not be burdened by legal proceedings against them as well as the possibility that he may overturn Roe v. Wade, paving the way for states to make abortion illegal once more. I hope she’s right in her view that Justices can and do change their views over time:

“[J]ustices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.” RBG

Kavanaugh claims to be a constitutional originalist, meaning he favors attempting to interpret the constitution in its original context according to the framers’ intent rather than through the lens of today’s society. This is a stark contrast to Ginsburg’s preference for a modern interpretation. In fact, she notes that the constitution is not the ideal foundational document to govern our day. After all, it was written by aristocratic landowners to protect their interests and didn’t consider women or blacks as people.

“I would not look to the US Constitution if I were drafting a constitution in 2012.” RBG

When confronted about their willingness to vote for Trump, many of my Mormon friends claimed that it was all about Supreme Court Justice picks for them as opposed to an actual liking for the candidate; they hope for more conservative laws that protect the financial interests of businesses and focus less on social justice and equality or they wish to suppress social changes that they dislike such as anti-discrimination, equal pay, or gay marriage (the flip side of “religious freedom”).

How do you feel about Kavanaugh as a Supreme Court Justice pick?

Do you favor a conservative Supreme Court, a liberal one, or a diverse one?

What types of cases do you think are likely to make it to the Supreme Court in the coming 5-15 years? What types of progress or regress do you see?

Are you a fan of Ruth Bader Ginsburg? Why or why not?

Discuss.

[1] You just got Gins-burned! In the documentary, we see RBG watching Kate McKinnon’s portrayal and laughing at just how different from this the soft-spoken Ginsburg really is.