Welcome back to the Deep Dive. Today we are opening
up a stack of research that feels, you know,
incredibly familiar on the surface. But the deeper
you go, the more you realize that the popular
image, it might actually be hiding the real story.
We are talking about a figure who became a legitimate
pop culture icon in her 80s. We're talking about
the notorious RBG, Ruth Bader Ginsburg. Exactly.
And I think for most people listening, when they
hear that name, a very specific image pops into
their head. It's the memes, right? It's the notorious
crown on her head, the tattoos people got, the
coffee mugs with the dissenter collar. It's this
tiny elderly Jewish grandmother figure who somehow
became this. internet action hero. Which is a
fascinating cultural phenomenon in itself, of
course. But if we aren't careful, the meme can,
well, it can obscure the reality of who she actually
was and what she actually accomplished. Totally.
I mean, do you know there is a species of praying
mantis named after her? The Isle Mantis Ginsbergii.
I did see that in the notes. Yeah. It's a very
specific kind of biological tribute. It's incredible.
Scientists named it that because the neck plate
on the mantis. resembled her famous jabots, you
know, those lace collars she wore over her judicial
robes. Ah, I see the connection. And get this,
they identified this new species based on the
female genitalia instead of the male, which is
apparently very rare in entomology. Was a deliberate
nod to her fight for gender equality. Okay, that
is actually quite fitting. But you're right,
that's the pop culture layer. You have the mantis.
You have the Saturday Night Live sketches with
Kate McKinnon doing the Ginsbergs. You have all
the merchandise. But the mission of this deep
dive is to peel all of that back. Because long
before she was a meme, she was a strategic legal
architect who fundamentally, and I mean fundamentally,
changed the way American law understands gender.
And that's the part I really want to unpack today.
Because I think people see the I dissent caller
and they just assume she was always this. This
firebrand, you know shouting from the rooftops,
right a revolution But looking at the source
material at the case files in the biography her
actual career path was different. It was calculated
it was Slow. It was incremental. And that's a
key theme we need to explore today. We're going
to be looking at her biography, her career summaries,
specific case files, both dissents and majority
opinions. Right. And we're going to move past
the icon to understand the work. We'll look at
her origins, that incremental legal strategy,
the specific cases where she redefined discrimination,
and crucially, the complexity of reviews. Because
she wasn't always the liberal icon people imagined.
Not at all. She had some very pointed. critiques
of Roe v. Wade, for instance. She had a, well,
a complex record on Native American rights. She
was a deeply nuanced jurist. And a resilient
human being. The health battles alone are just
staggering. Absolutely. So let's get into it.
Let's go back to Brooklyn. Before she was RBG,
she was just Joan. Joan Ruth Bader, born in 1933
in Flatbush, a working class Jewish neighborhood
in Brooklyn. But the family didn't call her Joan.
Apparently there were too many Joans in her kindergarten
class. They called her Kiki. A nickname her older
sister, Marilyn, gave her because she was a kicky
baby. She was active, restless from the very
beginning. I love that. But her early life wasn't
just, you know, cute nicknames and kicky baby
stories. It was marked by pretty severe tragedy,
wasn't it? It was. And this is really essential
to understanding her drive. She lost her older
sister, Marilyn, to meningitis when Ruth was
just a toddler, about 14 months old. Wow. So
that made Ruth effectively an only child carrying
the full weight of her parents' hopes and dreams.
And then her mother, Celia, who was the absolute
driving force behind her education, battled cancer
throughout Ruth's entire high school experience.
And the timing of her mother's death is just...
It's just heartbreaking. It's awful. It happened
the day before Ruth's high school graduation.
The day before. So she didn't attend the ceremony.
She stayed home to grieve. But her mother left
this indelible mark on her psyche. Celia had
been a brilliant student herself, you know, graduated
high school at 15, but her family sent her brother
to college instead of her. That was the classic
story of that era. Yeah. The resources, the opportunities,
they all went to the sons because they were the
ones expected to be the providers. Precisely.
So Celia was determined that Ruth would have
the opportunity if she was denied. She constantly
pushed her to be independent. Be a lady, she'd
say, but be independent. And she pushed her to
read. And there's this layer of Jewish identity
here that seems really interesting and foundational
to her worldview. Yes. The Baiters weren't devoutly
religious in terms of ritual. They weren't keeping
kosher in a strict sense. But the cultural influence
was profound. I read about the concept of Tikkun
Olam in the files. Can you explain that? It means
repairing the world. It's a central tenet of
modern Jewish thought. The idea is that the world
is broken or incomplete, and it is a human duty
to participate in fixing it, to pursue justice.
That influenced her deeply. But she also felt
the sting of exclusion within her own faith,
right? She did. As a teenager, she wasn't allowed
to have a bat mitzvah because of orthodox restrictions
on women reading from the Torah or being part
of a minyan, the quorum for prayer. Which feels
like the first brick in the wall of things Ruth
is going to dismantle later. Even in the space
that gave her this powerful moral instruction,
she was being told she was secondary. Exactly.
It's a foundational experience of being an outsider.
And much later in life, she kept a framed artwork
in her Supreme Court chambers with the Hebrew
phrase, Zedek, Zedek, Tirdof. It means? Justice,
justice shall you pursue. It comes from Deuteronomy.
It was a constant reminder of her heritage and
her professional responsibility. For her, law
wasn't just a job. It was a calling. And it was
rooted in that early identity. So she heads off
to Cornell University. where she meets two very
important men who shape her future in very different
ways. One was a world -famous novelist, and one
was a tax attorney. The novelist was Vladimir
Nabokov. The guy who wrote Lolita. He was her
professor. The very same. She studied European
literature under him, and this is a really key
takeaway for anyone who reads her legal opinions
later. Nabokov taught her that words are precision
instruments. He hated vague language. He taught
that the placement of a single word, a comma,
changes the reality that a sentence describes.
You can see that so clearly in her legal writing.
It is dry. It is incredibly precise. And there
is zero fluff. It's all about clarity and impact.
And the tax attorney. That was Martin Ginsberg.
Marty. She met him when she was just 17, and
she famously said he was the first boy she ever
met who cared that she had a brain. Marty sounds
like a character. Oh, he was. By all accounts,
he was the opposite of her in almost every way.
He was outgoing, funny, the life of the party,
a bit of a class clown. Ruth was shy, serious,
incredibly intense. And they got married right
after she graduated from Cornell. They did. But
then they head to Harvard Law School in 1956,
and the reality of the 1950s hits. Well, it hits
hard. This is the part of her story that always
just blows my mind. She's at Harvard, one of
the most prestigious institutions in the world.
But you look at the class photos from that era,
and it's just a sea of men in suits. It was a
class of about 500 men and nine women. Nine.
That's not even 2%. It's basically a rounding
error. And the dean, Dean Erwin Griswold, the
story about him is legendary. It is. The story
gets told a lot, but we need to analyze the psychology
of it. Dean Griswold invites the nine women to
dinner at his house. So they are sitting there,
probably terrified, trying their best to fit
in. And he goes around the table and asks each
of them to their faces, why are you at Harvard
Law School taking the place of a man? It's just
breathtaking, isn't it? The sheer audacity. The
assumption being that a man would use the degree
to support a family. And these women were just
indulging a hobby, looking for a husband. Taking
up a valuable spot that a man deserved. So how
did she respond to that? She played the game.
She gave a polite, demure answer. She said something
along the lines of wanting to understand her
husband's work better so she could be a sympathetic
and supportive wife. That is strategic. She didn't
let him see he'd gotten to her. It was survival,
but internally. You have to imagine that moment
just fueled the fire. She realized that no matter
how smart she was, no matter how hard she worked,
to the institution, she was an interloper. And
speaking of fire, her workload at Harvard was.
It was superhuman. We hear about hustle culture
today, but this is on a whole other level. It
really was. In their second year of law school,
Marty was diagnosed with testicular cancer. And
in the 1950s, that was often a death sentence.
The treatment was massive, debilitating radiation.
He was incredibly sick. So Ruth just steps up.
She doesn't just step up. She takes over. She
attends her own classes. She attends his classes.
She takes notes for both of them. Both sets of
notes. Then she comes home, types up his papers
from his dictation because he's too weak to type
himself. She takes care of their infant daughter,
Judson. She prepares his meals. And this is the
part. That's just astounding. She does all of
this while making the Harvard Law Review. That
is the part that feels like a superhero origin
story. It just establishes this pattern that
we see throughout her life. When things fall
apart, Ruth works. Work was her sanctuary. It
was how she coped with chaos and grief. It was
the one thing she could control. Marty eventually
recovered, thankfully, graduated. and got a job
at a big firm in New York. So Ruth transferred
to Columbia Law School for her final year to
be with them. And she graduated from Columbia
tied for first in her class. Okay, so let's look
at the resume at this point. Top of the class
at Columbia, law review at Harvard, glowing recommendations
from her professors. In a pure meritocracy, this
person has their pick of any job in the country.
In a meritocracy, yes. In 1960 New York City,
she was unemployable. How is that even possible?
What was the reasoning? She had, as she later
put it, three strikes against her. She was a
woman, she was Jewish, and perhaps most damning
of all to employers at the time, she was a mother.
Why was the mother part the worst of the three?
Because the assumption was that a mother would
be distracted. She would need to leave early
if the kid was sick. She wouldn't be committed
to the firm in the way a man would. They thought
her attention would always be divided. So she
just got rejected everywhere. Everywhere. She
applied to virtually every top firm in New York
and got nothing. Not a single offer. She applied
for a Supreme Court clerkship with Justice Felix
Frankfurter, who was a progressive hero, by the
way. He rejected her explicitly because of her
gender. He asked her professors if she wore skirts.
He told them he wasn't ready to hire a woman
because he used, and I'm quoting here, salty
language in his chambers. And he thought a woman's
presence would inhibit him. Unbelievable. That
has to be just devastating to do. everything
right, to be the absolute best and be told you
simply are the wrong shape for this role. It
required, well, it required muscle, as she put
it, to break the door down. Her mentor at Columbia,
a professor named Gerald Gunther, basically had
to strong arm a district judge, Judge Edmund
Palmieri. What do you mean strong arm? Gunther
told him, if you don't hire her, I'm never sending
you a clerk again. And if she fails, she doesn't
work out, I will personally provide you with
a replacement. Wow, that is high stakes. That
is putting your entire reputation on the line
for your student. It worked. She got the clerkship
and she excelled, of course. But even later,
when she moved into academia at Rutgers Law School
in 1963, the discrimination was just blatant.
She found out she was being paid significantly
less than her male colleagues. And the reason
they gave her. The dean told her, Ruth, your
husband has a very good job. You don't need the
money. Oh, my God. The assumption was that women
only worked for pen money, extra cash or luxuries,
not for a living or a career. It's infuriating.
Yeah. But all of this, all these slights and
rejections, they're building the foundation for
the next phase of her life. She's seen the system
from the inside. She's felt the doors slam in
her face. But before she starts tearing down
those doors in America, she takes a little detour
to Sweden. That seems random. Yes. And this is
a detail that often gets left out of the biopics,
but it is absolutely crucial. In the early 60s,
she was asked to co -author a book on Swedish
civil procedure. She had to learn Swedish and
she spent time there observing their courts and
their society. And what did she see there that
was so different? It was a revelation. She saw
a society where women made up 20 to 25 percent
of the law students. She saw a female judge who
was eight months pregnant presiding over a trial
and nobody batted an eye. It wasn't a big deal.
It was just normal. It was normal. And that showed
her that the American status quo, where women
were expected to be domestic appendages, wasn't
natural. It wasn't inevitable. It wasn't biological
destiny. It was a choice, a series of policy
choices that could be unchosen. So she comes
back to the states, armed with this powerful
new perspective, and she co -founds the ACLU
Women's Rights Project in 1972. And this is where
we really get to her strategy. She didn't just
walk into the Supreme Court and say, hey, gender
equality now, please. No. And this is where the
notorious image can be a little misleading. She
wasn't a radical revolutionary in her methods.
She was a conservative. And I mean that with
a small C strategist. She used incrementalism.
You called it unraveling a sweater before. Exactly.
She didn't try to burn the whole sweater down
in one go. She picked at the loose threads. She
targeted very specific statutes that seemed minor
on the surface, but which upheld the entire legal
structure of gender discrimination. And her genius
was in her choice of plaintiffs. Yes. Yeah. The
choice of who would be the face of the case.
It was brilliant. She represented men. Often,
yes. It was a brilliant tactical move. You have
to remember the Supreme Court at this time was
nine men, mostly elderly men. They didn't really
believe gender discrimination was a serious constitutional
problem. They saw it as, you know, the natural
order of things. Civilry, even. Right. Protecting
women. So she needed to show them that these
stereotypes didn't just hurt women. They put
men in a cage, too. Let's talk about a specific
case. Weinberger v. Weissenfeld in 1975. This
is the classic example in the research stack.
It is. So Stephen Weisenfeld was a widower. His
wife, Paula, who was a teacher, died in childbirth.
He wanted to work part time and stay home to
raise his infant son. The exact thing society
told women they should do. So he applied for
Social Security survivor benefits to help him
do that. Exactly. But the law at the time said
those benefits were only for widows, not widowers.
What was the government's logic there? The government's
logic was. Men are breadwinners. If a man dies,
his family is left destitute. If a woman dies,
the man can still earn, so he doesn't need the
government's help. It was based on this rigid
1950s view of a family. So Ginsburg takes this
case. And how does she frame the argument? She
argued that this law was a double discrimination.
It hurt two people at once. Okay, walk us through
the two sides of that coin. First, it discriminated
against the deceased wife, Paula. She paid the
same Social Security taxes out of her paycheck
as a man did, but her contributions netted her
family less protection. Her labor, her earnings,
were legally devalued. So it discriminated against
the woman as an earner. Precisely. And second,
it discriminated against Stephen, the surviving
father, by denying him the opportunity to be
a primary parent solely because of his sex. The
law basically said, you're a man, go back to
work, you can't be a caregiver. So it framed
these traditional gender roles as a cage for
everyone, not just for women. Exactly. And she
won that case unanimously, nine to zero. It was
a huge victory that proved the government couldn't
rely on these broad, romantic generalizations
about sex. Speaking of the word sex, there's
a funny story about that, isn't there? She stopped
using it in her legal briefs. She did. Her secretary
at Columbia, a woman named Flo Kennedy, actually
suggested it. She said, Ruth, every time you
say the word sex to these male judges, they aren't
thinking about the 14th Amendment. They're thinking
about. Well, you know. Giggling like schoolboys.
It's distracting, the secretary said. So she
suggested using the word gender instead. It sounds
more grammatical, less biological, more academic.
And it stuck. It was a small change, but a very
savvy one. That is such a practical, brilliant
adjustment. Okay, another big one from this era.
Craig v. Boren in 1976. This is the beer case.
The beer case, right. This was about a very strange
Oklahoma law that let women buy low alcohol beer,
3 .2 percent beer at age 18. But men had to wait
until they were 21. What was the justification
for that? Because young men are reckless and
drive drunk. That was the state's entire argument.
They had statistics that showed a tiny fraction
more men between 18 and 20 were arrested for
drunk driving than women. But Ginsburg, who filed
an amicus or friend of the court. brief challenged
this. And the result was huge for constitutional
law. The court established intermediate scrutiny.
OK, let's break that down for us. We need to
get a little technical here because this is really
her legacy as a lawyer. What is intermediate
scrutiny? OK, so in constitutional law, there
are different tiers of review the court uses
to look at laws. At the bottom, you have rational
basis. The government just needs a rational reason
to pass a law. Most laws like traffic rules,
tax codes, they just need to be rational. It's
a very easy bar to clear. And at the other end?
At the very top, you have strict scrutiny. This
is used for laws that discriminate based on race
or religion. To pass this test, the government
needs a compelling state interest, and the law
must be narrowly tailored. It is incredibly hard
for a law to survive strict scrutiny. Where was
gender on that spectrum before Ginsburg? It was
at the bottom, rational basis. As long as the
state had some reason, any reason at all, they
could pass laws that treated men and women differently.
Ginsburg's goal was to get gender treated like
race, to get it up to strict scrutiny. But she
didn't quite get that. She didn't. But in Craig
v. Bourne, the court created a brand new middle
tier just for gender, intermediate scrutiny.
Which means what exactly? What's the test? It
means that for a law that discriminates based
on gender to be constitutional, the state must
have an exceedingly persuasive justification.
It's not as tough as compelling, but it's a whole
lot tougher than rational. It raised the bar
massively. So thousands of state and federal
laws that were based on old stereotypes suddenly
became unconstitutional overnight. It was a sea
change. So she didn't get gender treated exactly
like race, but she moved the needle in a huge,
huge way. She did. During this. era at the ACLU,
she argued six cases before the Supreme Court
and she won five of them. Her friend and later
colleague, Justice Scalia, called her the Thurgood
Marshall of women's rights. And that's not hyperbole.
Not at all. Thurgood Marshall strategically dismantled
legal segregation as a lawyer before he ever
became a justice. Ginsburg, in the exact same
way, strategically dismantled legal gender discrimination
as a lawyer before she ever became a justice.
So let's fast forward. In 1980, President Jimmy
Carter appoints her to the D .C. Circuit Court
of Appeals, which is often seen as a stepping
stone to the Supreme Court. Right. It's the second
most powerful court in the country. And then
in 1993, President Bill Clinton nominates her
to the Supreme Court to replace Justice Byron
White. Now, looking back at the confirmation
hearings for her, it's really interesting. She
was confirmed 96 to 3. 96 to 3. That is a margin
you just do not see today. It's unthinkable.
It is. And at the time, she was viewed as a moderate,
a consensus builder. She was good friends with
conservatives on the D .C. circuit like Antonin
Scalia and Robert Bork. Clinton wanted someone
who was eminently qualified, but also confirmable.
And she fit the bill perfectly. But she did set
a very important precedent during those hearings,
didn't she? The Ginsburg rule. Yes. She refused
to answer any questions about how she would vote
on specific issues that might come before the
court like abortion or affirmative action. And
her reasoning. She said she would give no hints,
no forecasts, no previews. She argued that to
do so would compromise her judicial independence
and show that she had a prejudged opinion. Ironically,
that precedent has been used by conservative
nominees ever since to avoid answering tough
questions about things like Roe v. Wade. So she
gets on the court. She's the second woman ever
after Sandra Day O 'Connor. And for a while,
she is that moderate consensus builder people
expected. But then comes 1996 and United States
v. Virginia, the VMI case. This is her masterpiece
as a majority opinion writer. The Virginia Military
Institute was a prestigious, state -funded military
college that had only ever admitted men. And
their argument was that their special training
method wouldn't work with women. Exactly. They
called it their adversative method, which was
basically... Brutal hazing, zero privacy, intense
physical discipline. They claimed that the presence
of women would destroy this unique culture. So
as a compromise, they offered to create a separate
school for women, right? The Virginia Women's
Institute for Leadership. They did. A classic
separate but equal argument. And Ginsburg, writing
for the 71 majority of the court, just... Took
it apart, piece by piece. How so? She looked
at the proposed women's school and said, this
is not equal. It didn't have the same prestige,
the same endowment, the same powerful alumni
network, the same resources, or the same rigorous
military curriculum. It was a pale imitation.
So she applied that intermediate scrutiny standard
she'd helped create. She did. She said the state's
justification was not exceedingly persuasive.
It was based on generalizations about women,
not on the capabilities of individual women.
women. She wrote that generalizations about the
way women are estimates of what is appropriate
for most women no longer justify denying opportunity
to women whose talent and capacity place them
outside the average description. Women seeking
and fit for a VMI education cannot be denied
it. That line stuck with me. Exactly. It was
the combination of her life's work as an advocate.
It cemented the idea that the law must look at
the individual, not the stereotype. So she's
writing these powerful majority opinions. But
then, over the next decade, the court starts
to change around her. It shifts right, significantly.
In 2006, Sandra Day O 'Connor, who was often
the swing vote, retires. She's replaced by the
much more conservative Samuel Alito. So suddenly,
for a few years, RBG is the only woman on the
bench. She is. And she finds herself in the minority
more and more often. The court's conservative
bloc solidifies. And this is when the great dissenter
is born. This is when the speckled collar comes
out. The dissenting collar. She actually had
a specific black collar with gold embroidery
and rhinestones that she would wear when she
was reading a dissent from the bench. It was
a visual signal to the courtroom and the press.
I disagree, and I'm going to tell you why. One
of the most famous and impactful of those dissents
was Ledbetter v. Goodyear in 2007. This case
just makes my blood boil a little bit. Lily Ledbetter
worked at a Goodyear tire plant for years. Almost
20 years. She was getting paid significantly
less than her male colleagues who were doing
the exact same job. But she didn't know it. Right.
Because of pay secrecy. It was against company
policy to discuss salaries. She only found out
years later, right before she retired, because
someone left an anonymous note in her mailbox.
So she sued for pay discrimination. She did.
But the Supreme Court majority, in a 5 -4 decision
written by Justice Alito, said she was too late.
The law said you have to file a claim within
180 days of the discriminatory act. They interpreted
that to mean 180 days from the first bad paycheck
she received nearly two decades earlier. Even
if she had no possible way of knowing. Even if
she couldn't have known. Ginsburg's dissent was
scathing. She read it aloud from the bench, which
is a rare and powerful move. She basically said
the majority was completely out of touch with
the reality of the workplace. What's her core
argument? She pointed out that pay discrimination
happens in secret. It's not a one -time event
like being fired. It's a series of small, hidden
injuries. You can't sue for something you don't
know is happening. She said the court's interpretation
ignores the reality of wage discrimination. And
she didn't just complain. She actually called
for action. She did. She ended her dissent by
explicitly inviting Congress to fix the court's
error. She said the ball is in Congress's court.
And it worked. It did. When Barack Obama took
office, the very first bill he signed into law
was the Lilly Ledbetter Fair Pay Act of 2009,
which effectively overturned the court's decision
and said the 180 day clock resets with. Every
new discriminatory paycheck. That is a real world
impact. It is. It shows that a dissent isn't
just shouting into the void. It's writing to
the future. It's providing a roadmap for the
legislature to correct what the dissenter sees
as the court's mistakes. Another really big dissent
was Shelby County v. Holder in 2013. This was
about the Voting Rights Act of 1965. One of the
landmark pieces of civil rights legislation.
The court, in a 5 -4 decision, struck down the
heart of it. The preclearance requirement. And
what was that? It was a formula that required
states and counties with a history of racial
discrimination in voting to get approval from
the federal government before they could change
their voting laws. It was a preventative measure.
Exactly. And the majority, led by Chief Justice
Roberts, argued that the country had changed,
that racism wasn't the pervasive issue it used
to be. And so this extraordinary federal oversight
was no longer needed. And Ginsburg had a perfect
metaphor for that logic. She did. It's one of
her most famous lines. She said throwing out
the preclearance provision because it had been
working to stop discrimination is like throwing
away your umbrella in a rainstorm because you
are not getting wet. That line is just so good.
It's so clear and powerful. It cuts through all
the legalese. And sadly, given the wave of new
voting restrictions that passed in many of those
same states immediately after the decision, many
would argue she was prophetic. Now, we've painted
a pretty clear picture of a liberal hero. But
the deep dive is about the whole picture. And
the source material shows that RBG wasn't always
marching in lockstep with the modern progressive
movement. There's a lot of nuance here. Absolutely.
And there's no better example of that than Roe
v. Wade. Yeah, this surprises people. She was
pro -choice, obviously. But she had some serious
critiques of the Roe decision itself. She did.
She thought the legal reasoning was shaky. Roe
was built on a right to privacy, which the court
found in the Constitution. It focused on the
doctor -patient relationship. Ginsburg believed
it should have been built on the 14th Amendment's
guarantee of equal protection. Her argument was
that it's a gender equality issue. Exactly. That
laws restricting abortion access impose a massive
burden on women that is not imposed on men, and
that this denies women full and equal citizenship.
She thought an equality argument would have been
a much stronger, more durable foundation. And
she also thought the court moved too fast, too
far. She did. This goes back to her incrementalist
streak. She believed that in 1973, there was
a democratic movement happening in the states
to liberalize abortion laws. New York, Hawaii,
others were already moving in that direction.
She felt the court stepped in with a sweeping
nationwide ruling that halted that political
process in its tracks. And that created a backlash.
A massive backlash. It galvanized the anti -abortion
movement and made the issue a central front in
the culture wars. She wondered if a more gradual
judicial approach, one that maybe just struck
down the most extreme anti -abortion law in Texas
might have built a more durable public consensus
over time. That is that same incrementalist thinking
we saw from her ACLU days. She preferred measured
motions. It's who she was. She was an institutionalist
at heart. What about her views on criminal justice?
It was a mixed bag. On the Fourth Amendment,
which protects against unreasonable search and
seizure, she could be a very strong defender
of individual rights. There's the famous strip
search case, Safford Unified School District,
Vera Redding. 2009 this is the one where a 13
year old girl an honor roll student was strip
searched by school officials because another
student said she might have ibuprofen ibuprofen
not heroin, over -the -counter pain medication.
During oral arguments, some of the male justices
were, well, they were making light of it, suggesting
it wasn't a big deal, that kids change for gym
class all the time. And Ginsburg was not having
it. She was furious. She later told an interviewer,
they have never been a 13 -year -old girl. She
understood the profound humiliation and trauma
of that experience, and her perspective was crucial.
The court ultimately ruled 8 -1 that the search
was unconstitutional. But then there are areas
where her record is more complicated for liberals,
especially on Native American law. Yes. This
is a prime example of her complexity. In 2005,
she wrote the majority opinion in City of Cheryl
v. Oneida, Indian Nation. This one is a very
difficult ruling for indigenous rights advocates.
It is. The Oneida Nation had, over time, bought
back land on the open market that was historically
part of their reservation. They argued that because
it was their ancestral land, it should be sovereign
tribal land again, exempt from local taxes. And
Ginsburg wrote the opinion saying no. She did.
She used concepts like the doctrine of discovery
and the legal principle of latches, which basically
means you waited too long. She argued that the
area had been governed by New York for so long
and so many non -Indians now live there that
returning it to tribal sovereignty would be too
disruptive. Too disruptive. A very pragmatic
argument. It was. But it was seen by many as
relying on colonial legal doctrines to deny justice.
However, to show the complexity, fast - forward
to near the end of her life in 2020. She joined
the majority in McGirt v. Oklahoma, a landmark
decision that affirmed that a huge portion of
eastern Oklahoma was, in fact, still Native American
reservation land. So her views on this clearly
evolved, or at least the application of her principles
depended heavily on the specific facts of the
case. It just goes to show you can't put these
justices in a simple ideological box. They contain
multitudes. No, you can't. OK, let's pivot from
the law. to the person behind the robes. Because
you can't really talk about Ruth without talking
about Marty. Their marriage was truly modern
before its time. We mentioned he was the outgoing
one, the social butterfly. He was also the chef.
Ruth couldn't cook. By all accounts, she was
a terrible cook. Their children basically staged
an intervention and banned her from the kitchen.
Marty took over the cooking completely and became
a renowned amateur chef. And he was her biggest
cheerleader professionally. Our absolute biggest.
In the 1990s, when there was a vacancy on the
Supreme Court, he was the one campaigning for
her to get the nomination. He was calling in
favors, working his network of lawyer and politician
friends. He knew she wouldn't promote herself,
so he did it for her. A true partnership. A 50
-50 partnership in an era when that was all.
And in true RBG fashion, she was back on the
bench the very next day. She was. She said work
was what he would have wanted, and work was how
she coped. It was her sanctuary. And then there's
the other man in her life, Justice Antonin Scalia,
the ultimate odd couple. They disagreed profoundly
on almost every major legal question. But they
were the best of friends. They vacationed together,
right? They did. They spent New Year's Eve together
every year. There are famous pictures of them
riding an elephant together in India. And the
opera? They were both absolute opera fanatics.
They even appeared as extras in productions together.
There's a whole comedic opera written about their
friendship called Skoliagensburg. What does that
friendship tell us? In today's polarized world,
it seems impossible. It tells us that they valued
intellect and collegiality over ideology. They
could fight tooth and nail about the Constitution
in the morning and share a bottle of wine and
a good meal in the evening. Scalia once said,
I attack ideas. I don't attack people. Ruth appreciated
that. She famously said that Scalia made her
opinions better because he would read her drafts
and find all the weak spots in her arguments.
Iron sharpens iron. Exactly. It's a lesson in
civility that feels very distant right now. Now,
we also have to talk about her physical resilience.
Because looking at her, especially in those later
years, she looked so frail. But she was. She
was a tank. An absolute tank. She survived five
different bouts of cancer. Colon cancer in 1999.
Then pancreatic in 2009. She had a stent put
in her heart. She had cancerous nodules removed
from her lung in 2018. And then the pancreatic
cancer came back. And through it all... She rarely
missed oral arguments. She'd schedule chemotherapy
for Fridays so she could recover over the weekend,
be back on the bench Monday morning. It was an
unbelievable display of will. And the pushups.
We have to mention the workouts. The pushups.
After her first cancer bout, she hired a personal
trainer, Bryant Johnson, a former Army Special
Forces guy. She started training with him twice
a week. At age 80, she could do 20 push -ups.
She can barely do 20 push -ups now. Most people
can't. It became part of her legend. The RBG
workout became a book, a phenomenon. It was this
act of reclaiming physical strength when her
body was under assault. She wasn't just a brain
in a jar. She was physically fighting to stay
in the game. And all of that, the descents, the
workouts, the resilience, it all feeds into the
notorious RBG persona. How did she feel about
all that? The t -shirts, the tattoos, the memes?
She loved it. She completely owned it. She had
a supply of the t -shirts in her chambers that
she would give out as gifts. She thought it was
hilarious that a law student blogger had connected
her, this tiny, serious octogenarian judge, to
the rapper Notorious B .I .G. It bridged the
gap, didn't it? It made the Supreme Court feel
relevant and, dare I say... Cool to a generation
that might not have paid attention otherwise.
It absolutely did. But it also created a complication
because when you become an icon, a superhero,
people expect you to be invincible. And that
leads us to the final and very difficult chapter
of her story. The retirement question. This is
the elephant in the room of her legacy. During
the Obama years, specifically around 2013 and
2014, there was a lot of pressure from liberal
commentators and legal scholars for her to retire.
And the logic was what? The logic was she was
in her early 80s. She'd had cancer twice already,
and the Democrats held both the White House and
the Senate. It was the perfect window for President
Obama to appoint a young liberal successor who
could serve for decades. And she refused. She
did. She famously invited Obama to lunch at the
court, but she did not step down. Her argument
essentially was, who would you prefer? She looked
at the political climate, the rise of the filibuster,
the intense gridlock, and she genuinely didn't
believe Obama could get a true progressive confirmed.
She thought the nominee would have to be a compromise
candidate. She thought she was still the best
person for the job. She did. And she wanted to
emulate justices like Brandeis and Stevens, who
served until they were very old, as long as she
felt she was mentally sharp. And by all accounts,
she was sharp until the very end. She was. But
she was making a gamble. A huge gamble on the
2016 election. She expected Hillary Clinton to
win and to name her successor. It did not happen.
No, Donald Trump won. The Republicans held the
Senate and Ruth held on. She fought through more
cancer. She fought through broken ribs from a
fall. But on September 18th, 2020, she died.
On the evening of Rosh Hashanah, the Jewish New
Year. Yes. There is a Jewish teaching that the
most righteous people die at the very end of
the year on Rosh Hashanah because they are needed
until the very last moment. It felt deeply poetic
to her admirers. And she was honored for that
service. She was the first woman and the first
Jew to lie in state at the U .S. Capitol. A historic
honor. But the political aftermath was immediate
and brutal. Her dying wish, which she dictated
to her granddaughter, was that she not be replaced
until a new president is installed. But we were
just weeks away from the 2020 election. And that
wish was. not honored. Amy Coney Barrett was
nominated and confirmed in record time just days
before the election, cementing a 6 -3 conservative
supermajority on the court. It was the exact
scenario that Ginsburg and her supporters had
feared and tried to prevent. It was. And by staying
on the bench, she inadvertently allowed it to
happen under a Republican administration. It's
a tragic irony in a career that was so defined
by foresight and strategic thinking. It is. And
it certainly complicates her legacy. But as you
say, it doesn't erase it. No, it doesn't. So
let's wrap this all up. When we look at this
entire stack of research, what is the ultimate
takeaway from the life and law of Ruth Bader
Ginsburg? The takeaway, I think, is that she
changed the world for American women. and for
American men. And she didn't do it by waving
a magic wand or leading a protest in the streets.
She did it by sitting in a library, reading thousands
of pages of case law, by finding the perfect
plaintiffs, and by knitting together a legal
argument, stitch by careful stitch, over decades.
From the woman who couldn't get a job to the
justice who redefined the very meaning of equality
under the law. Precisely. She proved that the
law is not static. It can be moved. But you have
to be willing to do the slow, patient, meticulous
work. So here's the thought I want to leave all
of you with today. RBG was the master of the
long game. She believed in incremental change,
in consensus, in measured motions. But in her
final years, she became an icon of resistance
in a polarized, fast -paced, mean -driven world.
The question is... Is her style of patient, strategic
legal architecture still possible? Or has the
era of the consensus builder truly passed? In
a world that seems to demand instant results
and radical shifts, can an incrementalist still
change the world? Something to think about. Thanks
for diving in with us. Thank you.