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Yes, I am serious. Justice Ruth Bader Ginsburg reflected an older liberal center-left sensibility that is largely missing, or driven underground, in the current political fever. I offer in evidence three notable instances, while recognizing the last must be qualified. A Rolling Stone interview with the authors who created the Notorious RBG persona suggests they saw some of the same attributes I praise.*
Most recently, in February of this year, with politics already at fever pitch, Justice Ruth Bader Ginsburg shocked and discomforted the left at Georgetown Law School, as she participated in a program reflecting on ratification of the 19th Amendment. Recently, it became fashionable for Democrat-controlled states to claim they were now ratifying the 1972 Equal Rights Amendment. They expected to win by litigation, but Notorious RBG shot them down:
Speaking at Georgetown University Law Center at an event co-sponsored by the American Bar Association, Ginsburg poured cold water on the renewed hopes for the 1972 amendment becoming part of the U.S. Constitution after Virginia became the 38th state in January to ratify the measure that says “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
“I would like to see a new beginning,” Ginsburg told her interviewer at the event, Judge M. Margaret McKeown of the 9th Circuit U.S. Court of Appeals at San Francisco. “I would like to start over. There is too much controversy about latecomers [like] Virginia long after the deadline passed. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds’?”
Supporters of the ERA say the ratification deadline was invalid or that Congress could again extend the deadline, thus accepting the ratification. But as Ginsburg noted, five states that had ratified the amendment later rescinded their votes. In a Jan. 6 advisory opinion, the U.S. Department of Justice’s office of legal counsel concluded that the 1972 ERA measure had expired, and that Congress would have to start over.
See the Three Martini Lunch podcast episode “RBG & ERA, Bernie & Big Spending, Steyer & the Minimum Wage,” for more commentary on this event.
In another hot political season, Justice Ruth Bader Ginsburg called the NFL kneelers “really dumb.” Katie Couric interviewed the Notorious RBG for Yahoo! News early October 2016.
When asked by Couric how she feels about San Francisco 49ers quarterback Colin Kaepernick, and others athletes, refusing to stand for the anthem, Ginsburg replied, “I think it’s really dumb of them.”
“Would I arrest them for doing it? No,” Ginsburg elaborated. “I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act.”
Couric then asked, “But when it comes to these football players, you may find their actions offensive, but what you’re saying is, it’s within their rights to exercise those actions?”
“Yes,” said Ginsburg. “If they want to be stupid, there’s no law that should be preventive. If they want to be arrogant, there’s no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.”
Here, as with the ERA, Justice Ginsburg voiced a commonsense American perspective, not distorted by her own partisanship. Yes, she insisted on at least public self-deception about her and her fellow jurists’ lack of ideological preconceptions, masked by conflating two distinct measurements: party identification and ideology. Party identification measures how people choose to self-identify on a spectrum of Strong Republican to Strong Democrat, with Independent in the middle. This dates back to the earliest American National Election Surveys in the 1950s, an academic project that has nothing to do with Gallup and other horse-race polls. Political ideology, on the other hand, is traditionally cast as a scale from extremely liberal to extremely conservative, with moderate in the middle. Over time, liberal and moderate self-identification has been found to mostly align with Democrat self-identification, while conservative goes mostly with Republican self-identification. Chief Justice Roberts practices the same sleight of hand as did Justice Ginsburg, claiming that judges are not affected by the party of the president who nominated them for the bench.
Setting aside that rhetorical sleight of hand, we see a mature Ruth Bader Ginsburg, already in her eighth decade of life, publicly defending ideas that were already passing from the mainstream of Democrat politics. A 2015 interview of the Notorious RBG authors, Irin Carmon and Shana Knizhnik, has them pushing back on simple labels for Justice Ginsburg’s motivations.
Some people think of RBG as being a radical progressive, while others have characterized her as a moderate. “Ruth Bader Ginsburg cannot be called a liberal or a conservative; she has proved herself too thoughtful for such labels,” said Bill Clinton when he nominated her to the Supreme Court. So what is she, really?
SK: Both. In her principles, she’s much more radical than I think a lot of people realize. She’s fought for ideals that even today may seem pretty radical, and at the time were simply unheard of: the idea that marriage could be an egalitarian institution, the idea that gender norms really don’t mean anything and are not helpful to anyone. One of the quotes we have in the book is that if she didn’t have this sort of conventional, traditional life with a husband and children, she would be seen as a flaming radical because of what she was working for.
But at the same time, so much of her persona, so much of how she actually sees the work she’s doing and getting done, is by making compromises, by being tactical, by being pragmatic, and trying to figure out: What is the long-term strategy? How are we going to move toward a society that is more equal, more egalitarian, but without alienating the people who may disagree with you along the way?
Finally, we get to the point of qualified praise. In 2000, we saw the Democrats try to steal the presidential election by Democrats in Democrat precincts and counties finding ballots that they could claim were unclear and then divining the intent of the voters until the count came outright. A Democrat appointed majority state supreme court green-lighted the caper. The Notorious RBG joined a unanimous court decision that made the Florida Supreme Court redo their work in Bush v. Palm Beach County Canvassing Board. This was a technical case about the interpretation of state and federal law, the Florida Constitution, and the United States Constitution. Justice Ginsburg surely knew the end result would be a lesser chance of her ideology being advanced, through a Democrat appointing more ideologically like-minded justices to the federal bench. Yet, she joined the rest of the court in an initial united front.
Yes, shortly thereafter, we got to Bush v. Gore, where the leftists on the court all lined up on one side, including two foolishly appointed by Republican presidents, while the five moderate to conservative justices appointed by Republican presidents all voted to end the Hanging Chad Caper. Or perhaps it is fairer to grant “liberal” and “moderate” to the four and “conservative” to the five. In that case, it should still be no surprise that, when the chips were really down, the nine in black robes sorted as the general public does in serious surveys: “moderate” and “liberal” overwhelmingly aligning with “Democrat,” while “conservative” overwhelmingly align with “Republican” self-identification.
Republican Senators may show their true colors, and seek to throw the election to the Democrats so Mitch and his gang do not have to fulfill decades of false promises to pro-life and socially conservative voters. If so, we will see a 4-4 court or Roberts joining the left. to ensure there will never be any real future threat to the ruling elite’s social and political agenda. They will doubtless revel in citing the lengthy Ruth Bader Ginsburg dissent in Bush v. Gore. Do not doubt that Roberts will smile as he pronounces that Bush v. Gore is just not the sort of precedent that must be scrupulously followed.
As President Trump battles and seeks to drag the Senate Republicans across the finish line to finally keeping decades of promises, actually shifting the ideological balance of the court from center-left to center-right, he and his allies should remember to praise where praise is due.** Notorious RBG should be praised for her old-fashioned liberal positions, so far out of line with this year’s Democrats, including Biden-Harris 2020. Her 2016 position on anthem kneelers and her 2020 position on gaming the constitutional amendment process set her far apart from today’s Democrats. It matters whether leaders of opposing parties and ideological views believe the path to victory is through peacefully persuading other citizens or through violence and the threat of violence. Will the year ahead of us be full of compulsion, of government guns (criminal and civil law) turned on you and me, or of argument without the threat of death and destruction?
President Trump set the right tone in his initial remark, captured that very evening by his campaign in a tribute video, and in his official statement. The first reports of her death went out across the news media while President Trump was in the middle of a rally.
Remarks by President Trump Before Air Force One Departure
Issued on: September 19, 2020
Bemidji Regional Airport
8:13 P.M. CDT
Q Thank you, sir. Ruth Bader Ginsburg has died. Ruth Bader Ginsburg has passed away.
THE PRESIDENT: She just died?
THE PRESIDENT: Wow. I didn’t know that. I just — you’re telling me now for the first time.
She led an amazing life. What else can you say? She was an amazing woman. Whether you agree or not, she was an amazing woman who led an amazing life. I’m actually saddened to hear that. I am saddened to hear that.
Thank you very much.
Statement from the President on the Passing of Supreme Court Associate Justice Ruth Bader Ginsburg
Issued on: September 18, 2020
Today, our Nation mourns the loss of a titan of the law. Justice Ruth Bader Ginsburg served more than 27 years as an Associate Justice of the Supreme Court of the United States—notably just the second woman to be appointed to the Court. She was a loving wife to her late husband, Martin, and a dedicated mother to her two children.
Renowned for her brilliant mind and her powerful dissents at the Supreme Court, Justice Ginsburg demonstrated that one can disagree without being disagreeable toward one’s colleagues or different points of view. Her opinions, including well-known decisions regarding the legal equality of women and the disabled, have inspired all Americans, and generations of great legal minds.
A fighter to the end, Justice Ginsburg battled cancer, and other very long odds, throughout her remarkable life. Our thoughts and prayers are with the Ginsburg family and their loved ones during this difficult time. May her memory be a great and magnificent blessing to the world.
* Shana Knizhnik created the Notorious RBG meme on a Tumblr blog account, still active today but largely duplicated by the Instagram account of the same name. Compare to the Ted Cruz Thug Life meme originating in 2016.
The most prominent Ginsburg meme is that of “Notorious R.B.G.,” a play on the late rapper Notorious B.I.G., which features a visage of the justice wearing a crown and her trademark lace collar. It began as a blog by former New York University law student Shana Knizhnik in summer 2013, when Ginsburg delivered a scathing dissent in defense of voting rights in states with histories of racial discrimination.
** Granted we should all wish that the move would be in favor of a court majority consistently following the Constitution, rather than treating it as the basis for creative writing exercises, a point made by Henry Racette in “About that Vacancy…” I think the two things, political ideology and view of the Constitution, align much like political ideology and party identification.Published in