The Notorious — Ruth Bader Ginsburg

The Notorious

Ruth Bader Ginsburg

September 20th 2020

1933 was the deepest moment of the Great Depression. FDR told the American people they had nothing to fear but fear itself, and while it gave the people some resolve, it was nonetheless one of the most frightening times in US history.

It was also a time when, despite Reconstruction, most African-Americans found it difficult if not impossible to vote, own property, or enter most places of business. Restaurants sometimes had signs, “We Don’t Serve Jews” and of course Jews were banned from most country clubs and golf courses. Other visibly ethic people endured discrimination ranging from stereotypal jokes to treatment as poor as that afforded blacks and Jews.

Women had only won the right to vote a dozen years before, but could not have their own credit, own property in some states, and were effectively banned from most professions. While nursing and teaching are anything but menial, they were seen as being menial enough for women to perform such tasks.

In addition to being female and Jewish and born in 1933, RBG had a fourth strike against her: she was diminutive. I doubt she ever weighed more than 100 pounds.

Beating a lot of odds, she grew up to be a lawyer. And her first legal act as such was to write a brief in a tiny Idaho estate case, wherein the parents of a deceased teen wrangled over who should be executor. Idaho law said that a male should be executor in wills, and the mother disagreed. Ginsburg’s brief carried the day, and helped strike down the “males-only” rule in Idaho estate law. Courts had never invalidated a sex-based law like that one before. Indeed, less than 100 years earlier, the Court had banned women from even being lawyers, ruling that “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”

Yes, Dorothy, that is why we have separation of church and state. It reduces the idiocy factor.

Ginsburg herself was fond of saying she rode on the shoulders of giants. The metaphor, often attributed to Isaac Newton, actually came from Bernard de Chatres in the 12th century.

For Ginsburg, it was particularly apt, because she brought her love of fairness, justice and equality to the legal profession just at the time when a tidal wave of change was sweeping the country. Civil rights expanded, destroying the walls of segregation and Jim Crow, and sweeping outward to eliminate thousands of rules and laws that held women down, or worse, “protected them.” In the beginning of the 60’s, the Supreme Court upheld a law barring women from jury duty, arguing that they were “the center of the home and family life” and simultaneously too frail to be subject to the horrors of the criminal life.

Her first case argued before the SC, Frontiero v. Richardson. Spouses of female soldiers—then still quite a rarity—had to prove they were dependent on the income of said soldiers in order to qualify for the same benefits that spouses of male soldiers received without question.

Her most influential and consequential brief came in 1976, Craig v. Boren, a case about different drinking ages for men and women which led to the Supreme Court setting rigid criteria for determining the constitutionality of cases where the law varied based on gender. Ginsberg was no ideologue for women: she cheerfully took up the gauntlet to fight laws that discriminated against men, as well. Her’s wasn’t a battle of the sexes; it was a battle for fairness.

Her entire legal career was devoted to that tenet, and spanned hundreds of cases, both in the Supreme Court and in the lower courts. Her love of law and passion for justice was so formidable that

Bill Clinton, upon nominating her for the court, compared her to Thurgood Marshall. It was a comparison notably missing from descriptions of the man who actually replaced Marshall on the Court.

As her health declined, her courage and determination, already legendary in legal circles, became known to the public, and this tiny and seemingly frail little old lady was seen as a wall against the rise of fascism in America. Nobody would have blamed her if she had laid down the mantle five years before, but she understood the thinking of the American right—who thought of her as a “fast-talking Jew from New York” all too well. She understood that she stood to be replaced by a snarling bible-beater who would hold equal rights in withering contempt. She fought far beyond what could be reasonably expected of anyone in holding that off.

She may have won this last, final battle. Her dying wish was that her replacement be named by the President taking office in January, a reasonable request given the “no SC nominations during an election year” history that the Republicans hold so dear. Trump wants another Bill Barr on the Court. Biden will select an actual lover of the Constitution. She may have survived long enough to make it impossible for enough Republicans to replace her with fascist trash. For her, it wasn’t partisanship or even ideology; it was love of justice, and the fairness of the law.

She stood on the shoulders of giants, and did them proud, moving forward.

Now we must stand on her frail, tiny shoulders, and move forward, and make her proud.

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