In their new book, Notorious RBG: The Life and Times of Ruth Bader Ginsburg, Irin Carmon and Shana Knizhnik capitalize on what is (perhaps) an unlikely recent obsession in our culture: an octogenarian Supreme Court justice.
Building on Knizhnik’s Tumblr, which documents Ginsburg-inspired manicures and RBG-Destiny’s Child memes, the book mixes cheeky fan art with a serious – and stirring – account of Ginsburg’s life and work, covering everything from her trailblazing legal career to her current exercise regimen. (The diminutive justice meets with a personal trainer a few evenings a week for a workout that involves squats, planks and push-ups.)
Rolling Stone recently chatted with Carmon and Knizhnik about their book, Ginsburg’s significance in the ongoing fight for gender equality and why it’s always bad news when the justice wears her sequin-studded collar.
Some people think of RBG as being a radical progressive, while others have characterized her as a moderate. “Ruth Bader Ginsburg cannot be called a liberal or a conservative; she has proved herself too thoughtful for such labels,” said Bill Clinton when he nominated her to the Supreme Court. So what is she, really?
SK: Both. In her principles, she’s much more radical than I think a lot of people realize. She’s fought for ideals that even today may seem pretty radical, and at the time were simply unheard of: the idea that marriage could be an egalitarian institution, the idea that gender norms really don’t mean anything and are not helpful to anyone. One of the quotes we have in the book is that if she didn’t have this sort of conventional, traditional life with a husband and children, she would be seen as a flaming radical because of what she was working for.
But at the same time, so much of her persona, so much of how she actually sees the work she’s doing and getting done, is by making compromises, by being tactical, by being pragmatic, and trying to figure out: What is the long-term strategy? How are we going to move toward a society that is more equal, more egalitarian, but without alienating the people who may disagree with you along the way?
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One thing I think a lot of people have a hard time understanding about RBG is how she could be friends with Justice Scalia – who’s more or less her ideological opposite on the Court. They go to the opera together, and their families have spent holidays together. What’s up with that?
SK: Their friendship speaks to her broader life philosophy, which is that you can have principles that really matter to you, and you’re working toward achieving them, but she really cares deeply about meeting people halfway. And at the end of the day she finds Scalia hilarious. She says when they first met she saw him give a speech in which she disagreed with every substantive point he was making, but she thought he was hilarious.
IC: Something that’s really important to know about RBG is that she has a literary approach to legal writing; she had Nabokov as an instructor at Cornell, and he influenced her writing for the rest of her life. And I think she just appreciates Scalia for being witty.
So that explains why she’s not friends with someone like Justice Alito?
IC: I think it’s just that RBG and Scalia go way back. And generally speaking, while she may be closer with some justices than others, she always talks about how important it is to have friendships on the Court. She always says, “Even if there was a cross word, we have such great times.” I’m not sure I really believe that, but I think it’s something that she wants to strive for, because they’re all stuck there for life with each other. And if anyone is going to get anything done, there’s no sense in nastiness. With her, it’s always more about getting things done.
SK: And with RBG, there’s so much respect for the institution itself, that she would never be down with the justices letting personal politics influence their personal relationships.
Another sometimes controversial thing about RBG is that she’s not a fan of the Roe v. Wade decision – the 1973 Supreme Court decision that legalized abortion. Why is that?
IC: You’ll hear a lot of conservatives say, “Even Ruth Bader Ginsburg doesn’t like Roe v. Wade,” but the truth is, her quibble is not with the outcome. Justice Ginsburg at the time was a litigator at the ACLU Women’s Rights Project, and she was working on a case of a pregnant servicewoman who the military told had to either have an abortion or leave her job, and the servicewoman wanted to do neither. And Justice Ginsburg wanted to use that case to set a precedent that reproductive freedom was part of women’s equal status under the law – that only women were punished for having sex in the military, and when they had a period of temporary disability, only women were told they had to leave. Whereas if a man was injured in some non-gendered way, but was away the same amount of time, nothing happened to him.
Women had to leave, or else get an abortion. That’s sort of bizarre, especially at the time.
IC: Right. At one point I discussed this case with Justice Ginsburg, and she said something like, “You know, part of it was drawing attention to the fact that abortion was illegal in the United States, but not on military bases.” It’s a little known historical fact. There were some places in which abortion was useful, you could say – to the U.S. military – but it was morally disapproved of in other contexts.
So the point of the case was not “abortion or no abortion,” the point was “a woman’s right to decide the course of her life, including whether or not to bear a child.” And that’s what she found lacking from Roe v. Wade.
This is definitely a controversial analysis on her part, because there were briefs that made the argument of women’s equality to the justices, and there’s just no evidence that these nine guys [on the Court] would have been more receptive to a women’s equality argument.
Justice Ginsburg’s other analysis – she’s had this opinion for 30 years – is that we might not have seen the backlash [against abortion rights] that we see now had Roe been decided more incrementally, through the already existing chain of cases on women’s equality. But women’s equality is still a controversial topic in this day and age.
One of the things RBG is very insistent about is that her work is not just about women’s rights, it’s about women’s and men’s liberation. Can you explain her philosophy there?
SK: Part of it is strategic. When she was working at the ACLU’s Women’s Rights Project, there was some controversy about the fact that she was bringing cases with male plaintiffs. Some people didn’t understand why she was doing that. To her, it seemed perfectly obvious that in order to convince judges – who were overwhelmingly male at the time – to strike down laws and statutes that treated men and women differently, you needed to show them that this affected both men and women.
IC: There’s been some really interesting work done by the scholar Cary Franklin about the men Justice Ginsburg represented when she was at the ACLU, and how when she was bringing them before male justices, the male justices had trouble believing that these guys actually wanted to take care of their elderly mothers or their children, because it was so foreign to them. So in some ways what she was doing was quite challenging to them. But at the same time, being a canny strategist – showing that men had skin in the game, and that they too were harmed by gender inequality – enlisted a broader range of allies for her.
SK: Another thing is that when asked about her definition of feminism, her general response is sort of like that famous song “Free to Be You and Me.” She cares so much about every individual being able to achieve whatever it is that they are meant to achieve, and she was able to see through her own experience, and her own struggles against the norms that were imposed upon her, that gender norms were not helping anyone.
She strikes me as having been so ahead of her time on that. She was saying things about gender inequality in the Seventies and Eighties that people are still arguing about on the Times op-ed page today.
IC: Right. When people ask us, “Why are young women inspired by RBG?” to us it’s such an obvious question that it’s hard to answer. We live in a society that most of the time really stigmatizes ideals of gender equality and feminism, and there’s this woman who has for decades been using her power in the highest court of the land for good. That’s a really big deal.
Do you think RBG has grappled with being defined as a feminist? That probably hasn’t always been an advantage to her professionally.
IC: I don’t think she shrank from being defined as a feminist. That’s one of the most amazing things about her, that she managed to be in so many mainstream quarters, and never apologized for her work at the ACLU or for her feminism. But one thing I do think she has a nuanced position on is gender-based affirmative action. You see her through the Seventies talking about wanting to be considered on the basis of merit, and not because of her gender. And the reason that she’s been ambivalent about gender-based affirmative action is that, in her experience, things that are perceived as favors to women often end up being used against them.
But I think what she settled on is that we need gender-based affirmative action to fight stereotypes of gender roles. So as long as it doesn’t reinforce subordinate or stereotypical roles, we need gender-based affirmative action in the reality we live in today. She is also a very firm supporter of racially based affirmative action.
SK: As far as embracing her feminist past, present and future, like Irin said, she’s never been apologetic about her work at the ACLU, but at the same time, she cares very deeply about the law, and sometimes those things can be in conflict. Because feminism is about these radical, utopic visions of a society in an ideal form, but the law is about precedent.
So after 12 years as a judge on the D.C. circuit, people forgot that she had been seen as a kind of radical in her past, because she was this moderate on the D.C. circuit in a lot of ways. She really cared about getting it right…
IC: And because she had to follow precedent. That was her job.
SK: That was her job, and she is not one to not do her job.
IC: And I think that’s just a function of integrity. I think people who aren’t lawyers don’t realize how limited judges can be in what they can decide.
Even on the Supreme Court.
IC: Even on the Supreme Court. So, the abortion clinic barrier case last year, McCullen v. Coakley – we didn’t end up putting this in the book, but I remember covering it as a reporter, being shocked that it was a unanimous vote to strike down the barrier around abortion clinics. And I thought, even if the pro-choice side lost on that one, maybe Justice Ginsburg would write separately and say, “It’s important to have these kinds of safety measures to protect women’s reproductive rights, because those are fundamental constitutional rights.” That’s what I thought. That’s because I didn’t understand RBG the way I do now.
There were a few things happening in that case that tell you a lot about who she is. One, she later said she genuinely believed [the buffer-zone law being considered in the case] was a First Amendment violation, it was too broad. She’s somebody who grew up during McCarthyism and takes civil liberties really seriously, especially what she thinks could be viewpoint discrimination, or could be limiting speech. Two, that case could have gone much worse for the pro-choice side. The Court could have struck down the entire precedent, which would have ended all protections around clinics. So this was a 9-0 result that looked like they had found a middle ground. The fact that they didn’t go further I think shows RBG pragmatically joining for a middle ground there.
So it’s not that she was saying the folks who protest outside abortion clinics are all “plump grandmas” or whatever.
IC: Exactly. And even though – and she said this – there was language in the decision that she doesn’t agree with, I’m sure there was language in the gay marriage opinion, even, that she didn’t agree with. You see her fingerprints there, but I think she thinks it’s more important to see a good outcome, and to have long-term relationships, because when you write separately – I think people also don’t understand this – it annoys the person writing for the majority, because it undermines their impact. Them writing for the entire Court has much more of an impact. So now, looking back at McCullen, I realize that was her being both extremely principled, and being extremely strategic.
I think we’ve also seen, in the last term, her discipline as a leader, now that she’s the leader of the liberal wing of the Court. Her seniority really matters. And I think she felt like, after Bush v. Gore, when there were so many different dissents and concurrences, that people didn’t even really understand who won. And she believes in message discipline. It’s a little bit like Nancy Pelosi: She has corralled all of the liberals to speak in one voice, in a way that is clear about what they think has gone wrong. She confirmed publicly that she did that in this last term, during which the liberals at least held the line, and had victories that they didn’t expect.
Based on the analyses I’ve seen, it sounds like RBG might find herself in the minority a lot more this term than she did in that last term.
IC: We hope we don’t see her dissent jabot.
I think people are really thrilled with Justice Ginsburg’s voice in dissent, but on the other hand, it’s bittersweet for liberals, because she’s channeling their rage and frustration, but it also means that the liberals have lost.
SK: I don’t want to speculate, and I’m not a professional Court watcher, but I think we can both say that we hope there are more majority opinions including Justice Ginsburg than there are searing dissents, as thrilling as they are to read.
IC: But we’ll see, because she’s playing a long game, and last term Justice Scalia basically told Justice Kennedy that he was a terrible writer and an idiot. She would never do that, because she wants to try to convince the other side. And I’m pretty sure the other liberals on the Court are willing to try to get him to go their way, too. So, as usual, RBG is not going to be the justice we’re looking toward next June, it’s going to be Justice Kennedy.
So would you call her an optimist, then? It sounds like she really believes she’s going to convince her fellow justices of her point of view.
SK: I think she is in a lot of ways. She’s said she writes dissents for “a future age.” And even if she is not able to convince the current justices on the Supreme Court to go her way on every case, I think she really does believe that the Court, while it doesn’t care about the weather of the day, it cares about the climate of the time. So she sees things moving forward, and I think she really does believe that the arc of the moral universe bends toward justice.
IC: She also believes that social change doesn’t come from the Court. With the same-sex marriage case, she would say that’s an example of first there being cultural and social change. I think she really thinks that social movements cause change, and the Court catches up. And she thinks her role in the Seventies was to help the Court catch up. So I think she’s an optimist in the sense that she thinks there will be progress outside the Court, and inside the Court she’s made it her practice to assume everyone’s good intentions. That is often challenging for people with strongly held views.
SK: One of the pieces of advice she gives her clerks is not to dismiss the opposing side’s arguments. She thinks it’s really important to put your adversaries’ arguments in the best light possible, and then knock them down.
I know Supreme Court justices don’t typically say too much about electoral politics, but what do you think RBG makes of this presidential race?
IC: She’s actually been quite outspoken. She said to [NPR’s] Nina Totenberg, “I’m very optimistic about 2016.”
SK: The context was the pressure that she faced previously to retire while Obama was still in office and there was still a Democratic majority in Congress.
IC: Right, she’s saying she thinks a Democrat is going to win. She would never say it, but I believe she would be very happy if the first woman president appointed her successor. That being said, her decision to stay I believe is purely that she loves her job, and she’s really good at it, and she thinks she still has work to do. It’s not out of any political calculation. Because if it were out of a political calculation, she would have retired when the Democrats still controlled the Senate.
One of the things that really struck me reading the book is how RBG had to be so exceptional to get where she is. That’s something we still see today: Women and people of color often have to go so above and beyond to reach the same levels that many average white men had already achieved.
IC: She definitely worked twice as hard as anyone, and had to. But she never wanted to be the only exceptional one. I think her most furious time was when she was the only woman on the Supreme Court. That was not the plan! She’s someone who’s always brought people with her, given other people credit, and tried to make space for more than just one person clawing their way to the top. You have to be exceptional to be on the Supreme Court, you have to be exceptional to argue before the Supreme Court, or to be a law professor at a top university, but there are many people who are exceptional who are not getting the opportunities to fulfill their potential, and it’s pretty inspiring that she’s always sought to make sure other women and other disadvantaged people come along with her.
SK: The other piece of that is that when asked about what she sees as the next battle, it’s the idea of implicit bias – which is not easy to grapple with in terms of solutions. She gives the example of a violinist auditioning for an orchestra, and when the auditioners could see the person playing they were much more likely to pick white men, but if they were not able to see the person playing those numbers changed dramatically. This is something she realizes is a problem, and she thinks it’s central to moving forward and achieving real lived equality for women and people of color and other minorities.
IC: But it just so happens that that analysis is very strategic, too. It’s an analysis that allows her to argue that we still need these protections from discrimination, even if you think you are not a bad person, and you love black people, and you don’t know any racist people, and those days are behind us, right? Which has been the implicit argument: “Racism is dead.” She’s making an argument that allows her to publicly assume the good intentions of her adversaries, without attacking them as being racist or sexist, but saying to them: We all have these unconscious biases.
She also speaks very strongly about the legacy of racist oppression. There’s unconscious bias, and then there’s also the weight of history. She told me when I interviewed her, To think that you can just have centuries of racial oppression and then wave a magic wand… She knows this is a very long process – slower than she wants it to be – but we’re still at a point where there are justices on the Supreme Court who believe this problem is solved, so she has to figure out ways to teach them a lesson, whether it’s through arguing about history, or assuming their best intentions and saying that this is about unconscious bias. She still sees herself as a teacher.
What on earth are we going to do without her on the Court someday? It’s pretty sad to think about.
SK: Like Justice Ginsburg, we’re optimistic.
IC: We’re optimistic that she’ll live forever.