Max Stearns
After my father passed away in 2013, just shy of turning 80, and shortly before she herself passed away at the same age nearly two years later, my mother told my sister and me to mourn each of our parents as human beings, with strengths and flaws, not as mythic figures devoid of mistakes. I consider this profound wisdom—one that I plan to pass onto my own children—among my mother’s greatest gifts. When respected historical figures pass on, this wisdom is often lost. Commenters too readily deify those regarded as leaders or role models, and yet doing so risks weakening a legacy by disconnecting our constructed memories from the more complex, and richer, realities of those we lost.
I’ve been heartened to see the generous tributes to the Notorious RBG across the political divides. Friends and acquaintances, liberal and conservative, libertarian and progressive, have taken the time to celebrate a woman whose remarkably timed death, on the eve of Rosh Hashana, the Jewish New Year, is certain to complicate the pending presidential election, with implications for our nation’s history and for the composition, perhaps even the size, of the Supreme Court. Beneath the benign reminiscences, however, I worry something more sinister is lurking. It is easy, costless really, to celebrate a woman whose career has stood for principles so many paying tribute entirely reject, claiming to admire her commitment, tenacity, and dedication, only to immediately work toward displacing so many of her accomplishments with a replacement sharing RBG’s commitment, tenacity, and dedication to entirely opposing constitutional values.
As a constitutional law professor, I tend not to lionize Supreme Court Justices. Like everyone else, I have my favorites and those I regard less favorably, but mostly I try to remain fair, an equal opportunity critic. And over the years, this center-left constitutional scholar has both commended and critiqued RBG.
I expect RBG will long be remembered for two major contributions. This remarkable woman stood on the shoulders of a, likewise, remarkable man. As a lawyer, Thurgood Marshall, the first African-American Supreme Court Justice, had helped mastermind the strategy of chipping away at the outer edges of Plessy v. Ferguson (1896), with the goal of achieving Brown v. Board of Education (1954). Brown formally, if not empirically, marked the end of constitutionally sanctioned state race-based public school segregation. Marshall recognized the importance of case orderings, setting about a strategy of creating landmark precedents in less contentious cases, typically challenging graduate programs available only to whites. The gifted NAACP lawyers then relied upon these beachhead precedents in their progression toward the ultimate target, ending race-based public school segregation.
As a lawyer and Columbia law professor, Ruth Bader Ginsburg followed a parallel course. Her goal was to rid the nation of longstanding acceptance of the secondary status of women, in careers, access to government benefits, and, ultimately, as independent moral agents. Textually and historically, it was far less obvious that the Fourteenth Amendment would perform the same work in the context of sex—now “gender”—as in the context of race, especially since the Fourteenth Amendment embedded an adverse sex-based distinction and was overwhelmingly motivated to provide a means by which to eradicate Black Codes. This helps explain why even as RBG pushed her Equal Protection agenda in the courts, and later as Associate Justice, she continued to hope the Equal Rights Amendment (ERA) would become part of the Constitution.
Scholars debate whether RBG’s strategy truly mimicked Marshall’s, with some early cases challenging discrimination not against women, but against men. A recent alternative account holds that RBG sought about ending gender stereotyping, encouraging the Court, and us all, to as much imagine men as nurses or dependent homemakers as we should imagine women as lawyers, doctors, and one day, Supreme Court Justices or President of the United States. My only quibble is uncertainty that one must choose. By whichever manner the RBG story is told, with two possible reinforcing accounts, it is truly a remarkable and wonderful achievement despite the obvious work still to be done.
RBG is also apt to be remembered for a particular landmark case in this very body of law that she authored for the Supreme Court, United States v. Virginia (1996) (the VMI case). There she applied a somewhat strained version of a test known as “intermediate scrutiny” to strike down the Virginia Military Institute’s exclusion of women, since it began in 1839. Along the way, RBG roundly criticized the Virginia Women’s Institute for Leadership (VWIL), a cooperation-based program to train women leaders, housed at Mary Baldwin College. At the time, I recall those involved with VWIL, including, coincidentally, the sister of a student in my class at George Mason Law School, where I was then teaching, were offended. There is some irony that RBG was less subtle in acknowledging different teaching protocols without the need to disparage either even as she determined that these state programs, if available at all, must not discriminate based on sex. Instead, RBG analogized VWIL to the law school struck down in Sweatt v. Painter (1950), a Texas law school for blacks that the Supreme Court rightly held incomparable in every way that mattered to the elite University of Texas Law School, which had excluded blacks based on race. Ginsburg also recognized the programmatic changes that VMI would require to enroll women. To accomplish this she so modified intermediate scrutiny, the equal protection test for gender classifications, as to make it functionally equivalent to “strict scrutiny,” the test used in assessing laws discriminating on the basis of race. Although the VMI holding remains good law, her reformulated test has not clearly withstood the test of time. A persistent challenge that remains is the Court’s toggle over how to apply intermediate scrutiny in cases involving “real sex differences,” on one side, versus “overbroad generalizations” concerning sex roles, on the other.
One of RBG’s greatest insights as a jurist arose in her famous dissent in Holder v. Shelby County (2013), which upended § 4 of the Voting Rights Act. That provision set the formula by which federal courts determine whether a state jurisdiction is subject to “administrative preclearance,” a process of preapproval before implementing a change in voting laws that risks undermining minority voting strength. Some commenters have emphasized her accessible umbrella analogy (no one removes an umbrella during a storm simply because while standing beneath it, she is no longer getting wet). For me, her opinion deserves notice for a deeper insight. Although she didn’t use the phrase, RBG implicitly recognized what game theorists and evolutionary biologists, inspired by Lewis Carroll, refer to as a Red Queen Game. Strategies on race have been reciprocally persistent, revealing an ongoing battle in which each benign volley is countered with a move undermining the resulting gains. The game produces a seemingly unending race to combat discriminatory policies, and to respond in new creative ways, akin to the famous scene in which Alice and the Red Queen must run ever faster, not to get further ahead, but just simply to remain in place.
I’ve long regaled students with the story of how RBG, or actually her secretary, changed the meanings of sex and gender. Her secretary found the repeated use of sex prone to “distracting associations.” When RBG asked for an alternative, her secretary offered up the now ubiquitous grammatic term gender in place of sex.
Surely the hardest part of RBG’s legacy is this: Had RBG retired, as some had advised, immediately following Obama’s reelection, given her age and her health challenges, her seat may have remained secure in the hands of a like-minded jurist, even if a somewhat more moderate one given the Senate composition, fully for another generation, providing a generally reliable liberal vote on such issues as abortion, affirmative action, gender equality, voting rights, and the list goes on. Before passing, RBG pushed back, asking “When that suggestion is made, I ask the question: Who do you think the president could nominate that could get through the Republican Senate? Who you would prefer on the court than me?” Of course the issue wasn’t who one might have preferred. The concern was who would make the eventual decision on her replacement. Part of wisdom is recognizing that when it comes to institutions, no one, ever, is truly irreplaceable.
Even so, this much is clear. Had she then stepped down, we likely would not be mourning a woman of such iconic status, with fans obsessing over her planking and push-up routines, and placing her visage on t-shirts, coffee mugs, and even action figures. Of course, RBG could not have anticipated that Obama’s successor would be Donald Trump and all that brought about. Even so, failing to acknowledge this part of her story would be to treat RBG as an icon, not a person. My mother, may she rest in peace, would not have approved. She would be right.
May RBG’s memory forever be a blessing.
I welcome your comments.