I’ve been asked repeatedly in recent days to explain Justice Ruth Bader Ginsburg’s accomplishment: How did she, a young unknown lawyer, starting basically from scratch, persuade the nine men of the Supreme Court to join her in constructing a new jurisprudence of sex equality?
I replied that she had a project, a goal from which she never deviated during her long career. It was to have not only the Constitution but also society itself understand men and women as equal.
Fair enough, as far as that explanation goes. But I think it misses something deeper about Justice Ginsburg, who died last Friday at 87. What she had, in addition to passion, skill and a field marshal’s sense of strategy, was imagination.
She envisioned a world different from the one she had grown up in, a better world in which gender was no obstacle to women’s achievement, to their ability to dream big and to realize their aspirations. Then she set out to use the law to usher that world into existence.
What fired her imagination? Yes, there was her eye-opening time spent in the startlingly egalitarian 1950s Sweden. Yes, there was her inability to get a top-ranked job, or clerkship, or teaching position despite graduating from law school at the top of her class. Yes, her mother, Celia Bader, transferred her own thwarted ambitions to her brilliant daughter. All this is true, yet somehow reductive.
The best answer may be simply that Ruth Ginsburg saw things that others didn’t. She understood that the law could be harnessed in service to fundamental transformation. That’s the difference between imagination and goals. We all have goals, big or small, and we all encounter obstacles to accomplishing some of them. But only a few have the turn of mind to confront head-on the structural obstacles that stand in their way.
Some do it with the gift of an outsize personality that can inspire others and galvanize them to action. Think of Representative John Lewis, his bravery in the face of physical violence and his ability to move a crowd to tears and bring people to their feet.
That wasn’t Ruth Ginsburg. As a lawyer appearing before the Supreme Court, she presented herself as a modest incrementalist. She had to. If she had come before the court as a social revolutionary, the justices — never having viewed the Constitution as having anything to say about women — would have recoiled. Instead, they swallowed the bite-size portions she served to them, and assumptions about the respective roles of men and women — primary wage earner, primary caretaker — that had been baked into the law for eons disappeared, one case at a time.
The ability to imagine a different world is what distinguishes the leaders of any social movement. Think of marriage equality. The idea that marriage could be a legal option for L.G.B.T.Q. people appeared far-fetched not all that long ago. In 1972, in the case of Baker v. Nelson, the Supreme Court dismissed without opinion a challenge by two Minnesota men to the state’s refusal to permit them to marry. The justices deemed the case so frivolous as not even to present the “substantial federal question” necessary for the court to exercise jurisdiction.
Many of us who in 2015 cheered the Supreme Court’s Obergefell decision, which recognized same-sex marriage as a constitutional right, would admit, if we’re honest, that we had not taken the idea seriously either when we first heard it discussed years earlier. But a lawyer named Evan Wolfson imagined a world where sexual orientation did not determine a person’s access to the legal, financial and emotional benefits of marriage. In 2001 — before the Supreme Court’s decision in Lawrence v. Texas overturned a 17-year-old precedent and decriminalized homosexuality as a matter of constitutional law — he founded an organization called Freedom to Marry to bring that world into being.
Mr. Wolfson wasn’t alone in his quest, of course; I could list many other contributors. My point is that during notably dark years for gay rights (the “don’t ask, don’t tell” policy that kept L.G.B.T.Q. people from serving openly in the military lasted until 2010) it took imagination to suppose that the sun would rise one day on a different landscape. And to cite another significant civil rights breakthrough, it took imagination for the authors of the Americans With Disabilities Act to envision a world in which people with disabilities receive access not as a matter of grace but as a legal right.
It was only late in her career, when the court turned sharply to the right and she began to raise her voice in dissent, that Justice Ginsburg became the iconic R.B.G., fondly dubbed “notorious” and beloved on the left and by women and girls who weren’t particularly politically active. I’ll confess that the R.B.G. mania — the Halloween costumes for little girls, the collars, the mugs and other items decorated with her face — always made me a little uncomfortable. People sometimes gave me such paraphernalia; I thanked them and discretely tucked the items away.
It’s not that I didn’t appreciate her powerful dissenting opinions or wasn’t cheered by the thought that little girls could have such a role model when I myself had never met a woman who was a lawyer until after I had graduated from college. It was that the stuff, the whole shtick, seemed so kitschy when her actual accomplishments were so subtle and substantive.
But on the night of her death, as I watched the televised images of thousands of people gathering spontaneously in front of the court, I saw the Notorious R.B.G. phenomenon in a different light. Her unlikely status as a popular icon said as much, if not more, about us as it did about her. We needed her. We needed this fragile octogenarian who could get up repeatedly from her sick bed and speak truth to power. (“You can’t speak TRUTH without RUTH,” as a popular saying went.)
We needed her to call out Donald Trump as a “faker,” even though judges aren’t supposed to say such things and she had to eat her words. We projected onto her our fears about the course of events at the court and in the law, and our hopes that her cleareyed, always civil dissection of where her colleagues had gone wrong would somehow bring them around. We needed her.
We still do.
Instagram Live + Linda Greenhouse will discuss Ruth Bader Ginsburg’s legacy and what comes next for the Supreme Court with editorial board member Lauren Kelley at 3 p.m. Eastern Time on Tuesday, Sept. 29, at @nytopinion.
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