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That’s what I yelled the moment I saw on Twitter that Ruth Bader Ginsburg had died.
I began to pace furiously around my apartment, shouting profanities at such a loud volume that I should probably apologize to my neighbors. I’m not sure how many times I cursed, nor did I take note of the level of creativity I put into the litany of profanity that poured from my mouth. It’s all a bit of a blur to be honest. I remember texting “RBG died” to my colleague Jessica Mason Pieklo and then flouncing onto my bed and screaming into my pillow.
While the news of her death was a nightmare come to life, it wasn’t a shock. There are only so many bouts of cancer that an octogenarian can handle. But although she was battling cancer—even participating in oral arguments from a hospital bed—she remained a powerhouse on the Supreme Court. For more than 20 years, Ginsburg had been a practical liberal jurist acting as a bulwark against the worst impulses of the conservative justices. But in recent years, she was elevated to cultural icon, primarily by other white feminists.
Not that I didn’t participate in the fun. I have two pairs of Ginsburg socks and a sweatshirt. I’ve got a Ginsburg prayer candle (it sits right next to my Sotomayor and Kagan prayer candles) that Jess bought me as a gift years ago. My best friend and roommate from law school—who, coincidentally, also became a reproductive rights law nerd—gifted me a desk plaque that reads, “Do everything with the confidence of Ruth Bader Ginsburg dissenting.” It’s the header for my Twitter profile.
I love RBG.
That said, she failed in certain areas, particularly related to racial justice and issues affecting Indigenous communities. She only hired one Black law clerk in her 27 years on the bench, for example. Some of her rulings related to Indigenous issues harmed Indigenous communities. And rather than joining Sonia Sotomayor’s scathing dissents when critical issues of racial justice were on the line, Ginsburg too often sat on the sidelines.
In Utah v. Strieff, for example, Sotomayor’s dissent included a section that has been called a “Black Lives Matter manifesto”; Ginsburg declined to join it. And in the most recent case about the Deferred Action for Childhood Arrivals (DACA) program that staved off the deportation of around 700,000 DREAMers, Sotomayor’s dissent argued that the DREAMers should be able to claim violations of the equal protection clause based on Trump’s myriad racist statements about immigrant communities.
Ginsburg left Sotomayor twisting in the breeze alone on that one, too. It was disappointing, given the passion with which Ginsburg spoke about diversity during her swearing-in ceremony, and her obvious understanding of the scourge of racism. (If you don’t believe me, read her dissent in Shelby v. Holder, the case where Chief Justice John Roberts basically decided that racism was over so no need for the Voting Rights Act anymore.)
And then there was that unfortunate comment about Colin Kaepernick which—to her credit as an 83-year-old white lady at the time—she eventually walked back, noting that her comments were “inappropriately dismissive and harsh,” and that it was inappropriate for her to say anything. (I wish more white people would follow suit and simply apologize and shut up when they say something daft about race.) But, certainly, I would have preferred she not say anything at all in the first place and that she understand why she shouldn’t have said what she did.
Yet despite her white feminist impulses—and I defy anyone to find a white feminist of any stripe who has not given into their worst white feminist impulses at one point or another—Ginsburg was rather forward-thinking.At her swearing-in ceremony in 1993, she said she had “no doubt that women, like persons of different racial groups and ethnic origins, contribute … a ‘distinctive medley of views influenced by differences in biology, cultural impact and life experience.'”
She understood that the way she engaged with and interpreted the law and the Constitution was shaped by her experiences as a woman, just as Thurgood Marshall’s was shaped by his experience as a Black man.
But her life experience was as a white woman. And as a Black woman, I can only relate to that so much because the rules that apply to white women don’t necessarily apply to me. And the rights that Ginsburg fought for applied differently to white women than Black women.
As Jill Lepore writes in the New Yorker, the rules that existed to exclude white women from positions of power were implemented for the protection of white women:
Ginsburg [wrote], “Neither legislators nor judges regarded gender lines as ‘back of the bus’ regulations. Rather, these rules were said to place women on a pedestal.” Thomas Jefferson had taken the trouble to explain that women had no part in the Framers’ understanding of the government devised by the Constitution. “Were our state a pure democracy,” he wrote, “there would yet be excluded from their deliberations … women; who, to prevent deprivation of morals, and ambiguity of issues, could not mix promiscuously in the public gatherings of men.”
No such concerns about purity and protection were extended to Black women. Black women were kept from positions of power—from positions as citizens—due to our perceived inferiority. We were dragged here as property. To work. And to breed. Not to be put on a pedestal. We weren’t considered people. We were treated worse than animals. And that weighs heavy on my mind whenever I engage with Ginsburg’s work.
At the same time, I think about how, in 1971, when white women, much less Black women, could barely earn respect, Ginsburg shared credit on a Supreme Court brief, in probably the biggest case of her pre-SCOTUS career, with Pauli Murray, a Black queer civil rights attorney.
The case is called Reed v. Reed, and, without digging into the weeds, it’s the one where Ginsburg co-wrote a brief arguing that the equal protection clause of the 14th Amendment bars discrimination on the basis of sex, just as it bars discrimination on the basis of race. It seems like the sort of argument to which you might respond, “No duh.” But it was groundbreaking at the time, and to understand why, it’s important to understand what the legal landscape was like when Ginsburg attended law school and began her career.
Ginsburg was one of nine women in a class of hundreds at Harvard Law School, where she began to her studies in 1956. She would ultimately move to New York with her husband Martin and finish her law degree at Columbia University, where she tied for first in her class. But she couldn’t get a job. Law firms weren’t hiring women.
By 1969, she was volunteering at the American Civil Liberties Union, where she co-founded the Women’s Rights Project to litigate cases that would persuade the Court to rule that the equal protection clause applies to women.
As Ginsburg was working at the ACLU, toiling to bring about some measure of equality between men and women, white men were in a blind panic at the mere prospect of women lawyers, much less a woman on the Supreme Court. Lepore writes:
In 1971, as Richard Nixon prepared to make two appointments to the Supreme Court, he faced a dilemma. Yet another Southerner he’d tapped had been nixed for an opposition to desegregation, so Nixon decided to look for someone who was, preferably, not a racist. He considered naming a woman. “I’m not for women, frankly, in any job,” he told his aides, in a little fit of hysterics. “Thank God we don’t have any in the Cabinet.”
You want to talk about white male fragility? Chief Justice Warren Burger at the time threatened to resign if Nixon appointed a woman. Ultimately, Nixon appointed Lewis Powell.
That’s what Ginsburg was dealing with. That’s the landscape Ginsburg changed when she burst onto the scene with her argument that the 14th Amendment bars sex discrimination.
But as is so often the case when it comes to ideas proposed by white people, this wasn’t an argument she concocted on her own. She used the framing that Pauli Murray developed in a 1965 law review article. In the article, Murray likened discrimination against women to Jim Crow laws, drawing a critical connection between discrimination on the basis of race and discrimination on the basis of sex. Ginsburg built on Murray’s work to convince the Supreme Court that laws which treated men and women differently violated the equal protection clause.
And so in recognition of Murray’s scholarship, when Ginsburg filed the ACLU’s brief in Reed v. Reed, she added Murray’s name, even though Murray had not helped write it.
This may not seem like a big deal, but as a former litigator, I assure you that lawyers are frequently territorial about whose name appears on a court filing and in what order, especially when it comes to important briefs being filed with the highest court in the land.
For Ginsburg to add Murray’s name to the brief is a gesture of grace that I’m not sure many white litigators or white people generally would extend now, much less in 1971. I recall how touched I was when Jessica Mason Pieklo and I co-wrote one of our first pieces together and she insisted that my name come first in the byline, remarking that people would erase my work from the piece anyway. “They’re going to think I wrote it,” she said. I knew that. But that Jess not only knew that, but took steps to do something about it, meant a lot to me.
I can imagine that sort of consideration and self-awareness meant a lot to Murray, too. Ginsburg didn’t have to put Murray’s name on the brief. But she recognized that the arguments she made in the brief were derived from the knowledge she gained from Murray—from Black feminist scholarship—and she didn’t simply co-opt it, the way so many white people would have.
So, despite her failings, Ginsburg will always have my unyielding admiration and gratitude: not just for the way she shaped the modern era of gender jurisprudence, but for her regard for the Black woman upon whose brilliant idea that jurisprudence is built.