Jurisprudence

Mourning the Way RBG Calmly Approached Opposition

It’s something we are losing with her, and something that is no longer possible.

Ruth Bader Ginsburg
Liaison/Getty Images

There are two stories we like to tell about Ruth Bader Ginsburg; one is a story about anger and the other is a story about incremental conciliation. People wonder whether something happened in the mid-2000s to change the polite, cautious, and almost scarily emotionless Justice Ginsburg into the fierce and fiery feminist RBG. She contended that she didn’t change at all—instead, she said, it was the court that changed around her. I have tended to think that while her writing certainly changed, her approach to the world, to her work, and even toward her ideological foes at the court remained largely the same. She saw anger as wasted energy. Some of the quotes she repeated most frequently locate her squarely in the “Vulcan” quadrant of the emotional spectrum.

And so while the days pass and I find myself incandescently and elaborately furious at what is about to be done to her legacy, and how, I keep trying to remind myself that she found rage to be a wholly pointless emotion. She would say, “Reacting in anger or annoyance will not advance one’s ability to persuade.” She would say, “When a thoughtless or unkind word is spoken, best tune out.” She would say, “Fight for the things that you care about, but do it in a way that will lead others to join you.” She would say, “Don’t be distracted by emotions like anger, envy, resentment. These just zap energy and waste time.” She would say, “You can disagree without being disagreeable.” And she would cite an aphorism from Justice Benjamin Cardozo: “Justice is not to be taken by storm. She is to be wooed by slow advances.”

As I turn over and over what to do with my fury right now, I wonder if even that interior debate would have bored her. Who has time to have strong emotions about your strong emotions? In any event, I cannot presently find space for persuasion and patience. All that good faith and institutionalism is irreparably shattered. It’s also what got Democrats into this mess, which is perhaps why I’m having a hard time caring much about the shattering. Maybe RBG’s devotion to bipartisanship and rising above is all just quaint and old-fashioned now. Maybe amid everything else that is now broken, what is also lost and gone forever are the predicates for compromise and persuasion that were her stock in trade. When dealing with serial liars and hypocrites and those who operate in bad faith, the time for being agreeable and generous is over. We are not just mourning her, but also mourning the optimism found in her abiding belief that the best path forward would always be to tune out the ugliness and reach for broad agreement. We are mourning the possibility that any two people can disagree civilly, or respectfully, again.

One of the things I have been reconsidering as I turn over RBG’s legal legacy this week is not just the things she did to fight for equality but why she did them. We like to tell the tales of her early advocacy at the ACLU’s Women’s Rights Project as a kind of canny reverse psychology in which she helped dismantle gender stereotypes baked into the law by bringing cases about men. We say she did that to appeal to all-male judicial panels and because men couldn’t conceive of laws that prevented women from having credit cards or being able to train in the military as laws that harmed women; men thought they were protecting women from the cruelty of the world by doing these things. But as I have gone back and thought about what she was really doing, it wasn’t a party trick—she wasn’t just bringing cases on behalf of men to advantage women in the end. She truly believed that she was helping men to live fuller and richer lives, too. She wasn’t doing zero-sum equality. She was lifting everyone up.

In a beautiful piece in Washington Post this week, professors Pam Karlan and Aziz Huq make exactly this point: “She also championed male plaintiffs who demonstrated the burdens an ideology of gender-separate spheres imposed on all—as when, in a 1975 case, she argued on behalf of Stephen Wiesenfeld that the denial of Social Security benefits to widowers but not widows amounted to an unjust replication of stereotypes.” They go on to note that, faced with the claim that Wiesenfeld simply wanted to stay home and care for his young son, Robert Bork, who represented the U.S. government as solicitor general, scoffed at the very premise of the case: “Wiesenfeld’s desire to be the caregiver for his child, said Bork incredulously, was an obvious fabrication.” But Ginsburg knew that men suffered from these inflexible stereotypes about who was a breadwinner and who was the nurturer, just as women did. She wasn’t using her legal strategy to push men down. She believed that the world would simply be better for all of us if women could be fighter pilots and men could—as her own husband did—allow themselves to cook dinners and help with homework.

In many ways, I now think we may disserve RBG when we paint her as someone who paved the way for our daughters to be equals because she was driven by anger and a loathing of injustice. I think she genuinely believed that true equality would benefit men as much as women, and I think her holistic thesis on gender and justice has proven true. The world she helped design with her polite, incremental acts of persuasion has enriched men and women alike, and the world she helped design for immigrants, voters, minorities, workers, the disabled, and the elderly was never intended to be zero-sum, either. The fact that wealthy white men in the GOP see more liberty, a broader franchise, more racial diversity, and better-paid workers as a threat to themselves doesn’t mean the world she was creating was destructive. Her vision of America always demanded that benefits be shared more widely so that everyone could benefit from a more diverse and more accepting polity.

Maybe that was always too romantic. Maybe we are simply at a place in which anyone else’s victory means that we are diminished. But I continue to believe that nothing about this week’s winner-take-all law or politics would have been appealing to Ginsburg, just as nothing about eroding the integrity and reputation of the courts would have been attractive to her. Corny as it may sound, the justice really did see the law as a means of offering up America’s bounty to everyone. That work demanded patience and politeness and cooperation.

That millions of people stand to lose health care, and reproductive rights, and environmental protections, because of her replacement at the court is horrible. It is one cause of my rage, certainly. But it isn’t the worst thing RBG could have imagined. The worst thing is the exultant ways in which those ensuring that so many will suffer so a few can call themselves the victors would have been anathema both under her view of the Constitution and under her polite and anachronistically charitable worldview. And it is, I think, worth being mad about. I have gradually come to think that while RBG didn’t let herself be motivated by naked fury, she was propelled forward by injustice. And the injustice of having a seat filled by yet another president who lost the popular vote, and ratified by a Senate that subverts the minority vote, even as a majority of the country has no interest in rushing the vote? That injustice burns just as hot as any injustice RBG encountered, and perhaps even she would have given up on good-faith cooperation when good-faith cooperation took advantage of her.