By Bill Simons
Ruth Bader Ginsburg, age 87, died on the eve of the Jewish New Year 5781. Like many others, I learned of her passing from my rabbi during the erev Rosh Hashanah service. Many Jews found significance in the timing of Supreme Court Associate Justice Ginsburg’s death. Rabbi Richard Jacobs, president of the Union for Reform Judaism, observed, “One of the themes of Rosh Hashanah suggest that very righteous people would die at the very end of the year because they were needed until the very end.” Judaism was significant to the identity and consciousness of Justice Ginsburg. Jewish parentage, the demographics of Brooklyn’s Flatbush neighborhood and James Madison High School, affiliation with a Conservative synagogue and family participation in the East Midwood Jewish Center impacted her youth.
A photograph from the Supreme Court Collection reveals a poised and serious “camp rabbi” Ruth Bader, then 15 years old, giving a sermon at Camp Che-Na-Wah, a Jewish overnight youth camp in upstate New York owned by her aunt and uncle. As an adult, heritage, identity and ethnical imperatives – rather than ritual observance – provided Ginsburg’s primary connection to Judaism. Nevertheless, in 2003, Ginsburg was pivotal in persuading an initially reluctant Chief Justice William Rehnquist to depart from the traditional date for commencing the new session of the Supreme Court on the first Monday in October because it conflicted with Yom Kippur, the holiest day of Jewish year. And she chose a Jewish husband and life partner, Martin “Marty” Ginsburg.
Ginsburg related that a compelling attraction to Marty, whom she met as an undergraduate at Cornell University, derived from recognition that “[he] loved me for my brain.” Encouraged by her mother’s affirmation, Ginsburg had developed confidence in her own abilities and potential. Newly married, she and Marty attended Harvard Law School together. According to Ginsburg, she endured “indignities” at Harvard based on gender, including the insinuation that her presence took a seat from a male, as well as exclusion from the Lamont Library. In addition to gender bias and the arrival of a baby daughter, the already sleep-deprived Ruth attended both her and Marty’s classes, taking notes and typing papers for him, while Marty waged an ultimately victorious battle against testicular cancer.
When Marty graduated from Harvard and joined an elite law Manhattan firm, Ginsburg followed, finishing her legal education in New York, achieving the distinction of becoming the first student named to the Law Review at both Columbia and Harvard. Despite her accomplishments, this was the 1950s and neo-Victorianism posed formidable obstacles to offers from prestigious law firms and top clerkships. In the age of the feminine mystique, Ginsburg recalled, “[T]o be a woman, a Jew and a mother to boot – that combination was a bit too much.” For herself and other women, Ginsburg would ultimately play a pivotal role in the deconstruction of much of the legal basis of institutional sexism.
Ginsburg was not a radical. Indeed, she confided that the 1973 landmark Roe v. Wade abortion rights decision might have found more political consensus had it come after more states had embraced pro-choice. Make no mistake: as a law school professor, general counsel for the American Civil Liberties Union’s Women’s Rights Project, federal district court judge (1980-93) and Supreme Court associate justice (1993-2020), Ginsburg consistently advocated for social justice. Her contributions to women’s rights, racial equality and civil liberties were particularly notable. Nonetheless, Ginsburg did not believe in sudden dramatic legal epiphanies. Rather, Ginsburg – persistent, pragmatic and scholarly – built upon legal precedents to further incremental and lasting change case-by-case. Citing the Fourteenth Amendment’s assertion of equal protection, Ginsburg, writing for the majority, articulated the Supreme Court’s 1996 decision abrogating Virginia Military Institute’s ban on women cadets. Writing, once again, for the majority in Olmstead v. LC (1999), Ginsburg promulgated the right of individuals with mental illness to live in their own communities, rather than in institutional facilities, under the protections of the Americans with Disabilities Act.
As time passed, however, conservative appointments moved the Supreme Court to the right and Ginsburg found herself voting with a liberal minority. Her trenchant dissents, however, found resonance. Those Ginsburg dissents, asserted Rabbi Lauren Holtzblatt, “were not cries of defeat. They were blueprints for the future.”
As an octogenarian, Ruth Bader Ginsburg emerged as a cultural icon.
For a brilliant, progressive, and serious jurist rendered physically frail by recurrent cancer and heart disease, and perhaps no longer topping five foot in height, the metamorphosis was improbable. This Brooklyn native and Jewish grandmother, still possessed of a certain shyness, become the Notorious RBG. Shana Knizhnik, then a student at New York University School of Law, mounted a platform for Ginsburg dissents on Tumblr, and the blog, under the sobriquet Notorious RBG, an ironic reference to the Notorious B.I.G. – an assassinated gangster rapper – soon went viral, casting the justice as a feminist heroine. A 2015 book, “Notorious RBG: The Life and Times of Ruth Bader Ginsburg,” co-authored by Knizhnik and journalist Irin Carman, was followed by the 2018 film documentary “RBG.”
A feature-length, factually-based, dramatic film, “On the Basis of Sex,” also debuted in 2018. “On the Basis of Sex” depicts attorneys Ruth and Marty Ginsburg partnering on a case, Moritz v. Commissioner, representing a man denied the caregiver deduction. As the film details, Ruth and Marty deconstructed the legal assumption that men are in the workplace and women in the home.
The RBG cult came to encompass coloring books, collars that evoked the justice’s jabot, tattoos, mugs, T-shirts, action figures and a potpourri of other totems. Ginsburg, impersonated by a hyperintense Kate McKinnon, repeatedly appeared in “Saturday Night Live” comedic sketches. Perhaps the sheer incongruity of it all fueled the RBG phenomena.
I had the privilege of observing Justice Ginsburg from relatively close, but non-conversational, distance. During spring 2019, my wife, Nancy, and I were invited by our son, Joe, to observe the protocols surrounding his admission, along with others, to practice before the U.S. Supreme Court. Prior to the admission ceremony in the Court chambers, the session included the reading of decisions, two of which were delivered, clearly and precisely, by Ginsburg. Following the session, the newly admitted attorneys, accompanied by their guests, were honored at a reception in a room burnished by formal portraits of former chief justices. To our surprise and delight, Ginsburg entered the room, modestly referring to herself as “the undercard”: she congratulated the attorneys with warmth, respect and encouragement.
At the Glimmerglass Festival, just north of Cooperstown, NY, Nancy and I attended operas with Ginsburg in attendance. On one occasion, as I waited for Nancy during intermission, Ginsburg, a few feet away, examined Glimmerglass souvenirs while a woman, whom I had never encountered before, whispered to me, “I would give my vital organs to keep her on the Court.” In 2017, Nancy and I enjoyed the Glimmerglass production of the comic opera “Scalia/Ginsburg.” Ginsburg was also there and, following the performance, she stood on the stage to discuss the opera and her deep professional and personal friendship with the late Justice Antonin Scalia, who had died the year before. Amidst the toxic turmoil of our polarized present, the warm relationship between the liberal Ginsburg and the conservative Scalia reminds us that in our democracy vigorous debate between conflicting viewpoints can flourish amidst civility and respect.
Bill Simons is a professor of history at SUNY Oneonta, whose course offerings include sport and ethnic history. He is also the co-director of The Cooperstown Symposium on Baseball and American Culture, and served as a speaker for the New York Council on the Humanities.