Justice Ginsburg’s Cautious Radicalism

New York Times Irin Carmon
October 24, 2015

One day last May, while receiving an award, Justice Ruth Bader Ginsburg of the Supreme Court was asked to give advice to her younger female admirers.

It’s a question that she has been asked many times, more often these days, as legions of young women have chosen the octogenarian as their quiet-voiced but steel-spined icon. That day onstage, I listened as she seemed to think for a particularly long time before answering.

My advice is fight for the things that you care about, ” Justice Ginsburg said. Fair enough banal enough, really. Then she added, But do it in a way that will lead others to join you. ”

It was Ruth Bader Ginsburg’s vision, distilled: Have a radical aim, but proceed with caution.

Unlike the Notorious R.B.G. meme, which celebrates the justice by juxtaposing her with the legendary rapper Notorious B.I.G., this message is unlikely to go viral. But our current paralyzed political moment is in dire need of it anyway.

Over the course of Justice Ginsburg’s career, she often had no choice but to be the first, but she never wanted to be the only. That meant, as a co-founder of the A.C.L.U. Women’s Rights Project, bringing cases that would persuade an all-male Supreme Court that women were equal under the law. It required being a principled but canny fighter. Those qualities are also how we got a feminist hero on the Supreme Court.

This is the irony of Justice Ginsburg’s having become a pop culture icon, inspired by her fiery dissents to the conservative majority opinions. Young women have tattooed themselves and painted their nails with the justice’s face. They’ve created tributes in needlepoint, clay, T-shirt and Lego.

Justice Ginsburg has been depicted as an avenging angel smiting her enemies, with two middle fingers up in the air, and as a warrior Athena inked on the arm of more than one feminist. (The justice, generally amused by all this, has told me that she thinks the tattoos go too far.) Spend enough time looking at this fan art and you can get the impression that she is a sort of judicial Carrie Nation, hacking at injustice with a hatchet.

But Justice Ginsburg would prefer a more delicate tool, having no patience for confrontation just for the sake of it. Anger, resentment, envy and self-pity are wasteful reactions, ” she has written. They greatly drain one’s time. They sap energy better devoted to productive endeavors. ”

Only Justice Ginsburg would have added the fairly unpoetic coda to the Rev. Dr. Martin Luther King Jr.’s famous declaration that the arc of the moral universe is long, but it bends toward justice. ” It does, she agreed in her oral dissent to an opinion striking down part of the Voting Rights Act in 2013, but said, only if there is a steadfast commitment to see the task through to completion. ” No wonder she’s refused to retire she still has work to do.

The arc of Justice Ginsburg’s moral universe is still bending. Forty years ago, she imagined a world where men and women were free to pursue their own destinies regardless of gender norms, where men were encouraged to do their part as caregivers and the state didn’t interfere with women’s reproductive decisions. These are, and remain, profoundly controversial ideas in our society.

But the younger Justice Ginsburg’s intentionally unthreatening exterior married, traditionally feminine, always an impeccable student and scholar helped mask the intensity and breadth of her convictions. I think had she not had this persona as this very soft-spoken, neat, and tidy person, with a conventional life, she would have been considered a flaming radical, ” her friend Cynthia Fuchs Epstein said. She used those relative privileges to work on behalf of others.

The first time Justice Ginsburg argued a case before the Supreme Court, in 1973, she was handed a bar admissions card that read, Mrs. Ruth Ginsburg. ” She had gone by Ms. ever since there was a Ms. designation to be used. Her law students, who had helped radicalize their teacher with their refusal to accept gender discrimination, promptly protested. But Professor Ginsburg shrugged it off. She was there to win the case of an Air Force lieutenant whose husband had been denied equal benefits, not to make a fuss over a name card. What the litigator was asking for in her case was a big enough leap. (She won.)

Her vision for the world is transformative, but instead of broad sweeps, she has urged slow, incremental steps to that change. Rather than capitulation, this is about playing a long game. These principles sustained her through decades of experiencing discrimination, and formed her legal strategy. She insisted that we attempt to develop the law one step at a time, ” a fellow A.C.L.U. lawyer, Kathleen Peratis, testified at Justice Ginsburg’s confirmation hearings in 1993. “Present the court with the next logical step,’ she urged us, and then the next and then the next. “Don’t ask them to go too far too fast, or you’ll lose what you might have won.’ She often said, “It’s not time for that case.’ We usually followed her advice, and when we didn’t, we invariably lost. ”

On the court, Justice Ginsburg has tranquilly preached collegiality, a savvy move given that she and her colleagues are stuck together for life. In victory, Justice Ginsburg now tells her clerks, never demonize your opponents. She would rather win cases than go out dissenting in glory, which means, she said in a 2012 talk, an opinion of the court very often reflects views that are not 100 percent what the opinion author would do, were she writing for herself. ”

All this as her friend Justice Antonin Scalia’s fury on the bench has intensified. I’ve been known on occasion to suggest that Justice Scalia tone down his dissenting opinions … because he’ll be more effective if he is not so polemical, ” Justice Ginsburg once said.

It may seem strange for a feminist to counsel against anger when those of us who are not straight, white men have had to fight just to have room to express it. But the risk of burnout over fast-flaming conflicts is real. Our current conversations value catharsis over strategy. This doesn’t mean picking the middle point of two poles and calling it common sense; it just means thinking past instant outrage and doing sustainable work.

A former law professor, Justice Ginsburg likes to say she is still a teacher. When I interviewed her, she said her response to experiencing injustice is to try to teach through my opinions, through my speeches, how wrong it is to judge people on the basis of what they look like, the color of their skin, whether they’re men or women. ”

All of this explains why legal insiders were startled a few years ago when, in Justice Ginsburg terms, she started getting openly angry. As the court lurched to the right, the justice picked battles by sternly dissenting in cases about contraception, voting rights, sex discrimination and remedies for racial discrimination. With affirmative action, labor and reproductive rights poised to return to the court’s agenda, we may hear her protest again.

By that point, you can be sure she will have tried everything else. She’ll still be fighting for the things she cares about. But this time, she’ll be asking us to join her.