Jurisprudence

The Quieter Reason RBG’s Death Is Such a Blow

A close-up of Ruth Bader Ginsburg with a slight, close-mouthed smile.
Justice Ruth Bader Ginsburg speaks in Bristol, Rhode Island, in 2018. Pat Greenhouse/The Boston Globe via Getty Images

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Dahlia Lithwick has covered the Supreme Court, and watched Ruth Bader Ginsburg, for a long time now. But it wasn’t until a few years ago that she realized Ruth Bader Ginsburg was also watching her. “She said she liked reading me because I was spicy,” Lithwick said. “That was the very first note I got: ‘I like reading that girl. She’s spicy.’ ” On Monday’s show, Lithwick remembers Ruth Bader Ginsburg and reflects on her legacy in a world where the ideals she espoused are already vanishing. Our conversation has been edited and condensed for clarity.

Mary Harris: I think a lot of people feel like they know Ruth Bader Ginsburgs story. She became a lawyer when a lot of women didnt become lawyers, and she transferred from Harvard Law to Columbia to follow her husband. But her husband ended up being one of her biggest advocates and really being a key to her arriving at the Supreme Court. She was a founding director of the Womens Rights Project at the ACLU. There are just so many threads to pull on. Im wondering if you could just take one that you cant stop mulling over.  

Dahlia Lithwick: One of the things that I always observed was that in some sense she was between generations, right? She was too old, in a weird way, for ’70s radicalism. She went to law school in the ’50s, not in the ’60s. She’s this very buttoned-down, utterly proper New York Jewish lady.

You called her the dork’s dork.

I think it goes to her fundamental conservatism that in the 1970s, when women were burning their bras, were arguing for the ERA, were pushing for liberation in a really physical way, RBG was just a brain in a vat. She was dispassionately laying out the architecture for a whole arc of cases that would forever change the way the Constitution treats women.

She could see the horizon, it felt like. She was just phenomenal at knowing her audience. Being a woman lawyer, knowing she was going to argue for womens rights in front of a bunch of men, she thought through, like, how do I make that argument to this particular group of people?

Early on, she likened what she did when she argued cases before all-male panels to being a kindergarten teacher, which I always kind of hated because I felt like that’s not a very empowered vision of her role as an oral advocate. Like, I’m going to explain really slowly to you at the Supreme Court why it is that gender bias affects men as much as women. But she was always very, very careful to say that that’s what she was doing. She was bringing men along in her early career. And I thought that was really interesting because at the one level, it does seem disempowering. It does seem so beneath what other oral advocates, male oral advocates, had to do. But in another sense, it really was the way she approached the world. She always said, Get the work done, but do it without making enemies.

Seems quaint.

Part of it is just pragmatic, right? If you’re talking to the Supreme Court, you just can’t go in there, rip off your bra, set it on fire at counsel table, and hope for the best. It seems so retrograde that she has to not just talk to them like she’s a kindergarten teacher but then bring them a male plaintiff because they couldn’t possibly imagine a case that impacted women. But even though it’s quaint, it was kind of radical genius.

She believed in systems and in changing systems. While she had a lot of patience for protest and cacophony and bodies on the streets, her world was never that. It was: How do I tinker, tinker, tinker, fiddle, fiddle, fiddle, persuade, persuade, persuade? Find male allies where nobody would look. And in so doing, alienate almost everybody who says, Youre doing it wrong. And yet hers endures.

We have to talk about what comes next here. Within hours of her death, it became clear that she had dictated to her granddaughter this dying wish that whoever replaces her not be seated until after the presidential election. And also within hours of her death, we have the president and Mitch McConnell saying they will not grant that wish. Theres been a lot of talk in the past couple of days about the hypocrisy of it, of the fact that Mitch McConnell held that seat open while Obama was in office but is now rushing to fill it. But in some ways, is that the argument we should be having?

I really felt like it was sort of a Jon Stewart–ification. You know, we’ll get some gotcha video and that will shame them. Oh, here’s Lindsey Graham saying something different. Here is Chuck Grassley saying something different. That didn’t work in 2016, right? We had videos of Orrin Hatch saying, who’d be great instead of Elena Kagan: Merrick Garland. And we thought that would somehow shame Republicans. I don’t know, maybe that works in, like, Murder, She Wrote. But it doesn’t work in contemporary politics to have video of someone saying the diametrically opposed thing four years earlier. I’m not sure that a ton of effort should be expended on trying to shame people into having consistent views because this was about power in 2016 and it was about power in 2020. It’s who controls the Senate.

It’s funny because in these last couple of days, I keep seeing quotes from Ruth Bader Ginsburg making the rounds, and they really underline what you’ve said about her, how she’s this sort of small-C conservative, really believed in the system, sort of pulling the levers one at a time, making logical arguments. There’s this one quote about [how] real change, enduring change, happens one step at a time. I compared that with what our colleague Jim Newell wrote about the political process that’s about to happen. He ended his piece on Friday night saying, “We’ve been in a slow-moving political crisis for a while. It’s about to get fast.” And it made me think how part of what we’re mourning with Ruth Bader Ginsburg is the ability of her approach to work. That slow, methodical work. That’s part of what we lost.

I love that because it reminds me of one of my favorite Ginsburg stories. Toward the end of his career, then–Chief Justice William Rehnquist pens this really arresting piece about the Family and Medical Leave Act. And he’s on her side of it. He writes this piece about basically what it’s like to be a caregiver and to be pressed and stressed and how you need to be able to take care of your family. While this is very much surprising from Rehnquist, it turns out it is totally informed by his real-life view of the world, because his daughter at that point was a single mom and was trying to raise kids and was juggling and he was living with that. And he really saw what her life was like and ends up writing this opinion that’s incredibly solicitous of women and caregiving and the juggle and the pressure. And she always told this funny story where she would say, Marty read the draft opinion and sort of hollered, Ruthie, did you write this for him, did you ghostwrite this thing?

And she always told it as a story of empathy and of how we can bring each other along. And that it’s never too late to change. She felt like her job was just to make that which is not visible, in this case to men, visible. Help people see what they don’t know. And she lived that dual life her whole life, right? She knew what Lilly Ledbetter suffered in terms of unequal pay. She knew what the women of Walmart suffered in terms of discrimination. All of those cases are the function of her living a double life, where she was both a jurist and a legal architect but also a woman who had been the victim of all those things. And what you’re describing is this act of persuasion: I’m going to try to draw a picture so that you can understand the thing that you can’t see, and maybe that will at some point lead you to write about the Family and Medical Leave Act in a way that understands what you didn’t see but do see. I think truly, every day, when she pulled her little stilettos on and went into the office, that’s what she was thinking. And you’re completely right that not only has that broken down at the court, but it’s broken down in Congress. But it’s also broken down in so many of our interactions with each other. That benefit of the doubt: Let me listen to what you are describing and see if I can make a space for that in my worldview. And so in a way, you’re quite right. I think what we are mourning is not this iconic gangsta rapper version of RBG who set the world on fire, but, for me, a much, much deeper, sadder belief in the art of empathy and persuasion as a means to get us to work together on things for the collective good. I don’t know if that makes sense, but I think that’s always what I think her project was. And I think it’s vanishing before our eyes.

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