On Ruth Bader Ginsburg

Monday would have been the late Justice Ruth Bader Ginsburg’s 88th birthday. Which meant a lot of tributes from the left side of the political spectrum. The California legislature’s concurrent resolution is a good example:

This measure would declare that the Legislature honors the life and legacy of Justice Ruth Bader Ginsburg, and proclaims March 15, 2021, as Justice Ruth Bader Ginsburg Day, a day of remembrance and education to ensure that all Californians always honor and remember a vibrant guardian of equality for all.

I can’t help but feel really conflicted about all of these tributes, though. Not because they’re inaccurate—Justice Ginsburg was a trailblazing fighter for women’s rights whose accomplishments are worth celebrating! But I can’t help but see them as a continuation of the last several years of putting the Justice on a pedestal. It’s always dangerous to make even very admirable public figures into unquestionable heroes, especially while they remain in positions of responsibility, and it didn’t escape my notice that the “Notorious R.B.G.” memes and similar propaganda really kicked into high gear starting in 2013 and 2014. Those years being, as it would turn out, the last chance Ginsburg had to retire and be replaced with an ideologically congenial successor.

Looking through the resolution I linked above, it didn’t escape my notice that the last majority opinion referenced therein was in 1999. I’ve been following the Supreme Court since I was in eighth grade, and that’s before my time. Most of the really solid Ginsburg decisions I’ve seen handed down in real time have been dissents, and while quite a few of them were unanswerably brilliant, they’re not the law of the land. (A lot of people seemed to get warm and fuzzy feelings about Ginsburg dissents, which is bizarre to me given how they tended to accompany the country getting fucked over by the majority.) I had some hope that Ginsburg would get some majority opinions to go out on in 2016, but obviously Sen. Mitch McConnell blocked that. So the only hope of those dissents getting adopted by the Supreme Court rests on control of the Court flipping in the future. And unfortunately for us, by failing to retire in 2014 Justice Ginsburg ensured that that’s probably only going to happen in my lifetime if Democrats add four seats to the Court, or if Democrats hold the White House and Senate concurrently for over a decade, or if, say, Justices Alito and Kavanaugh get in a freak mutual golfing accident. Don’t hold your breath.

I don’t think it’s fair to have somebody’s worst decision overshadow an otherwise exemplary life and career. But life isn’t fair. And at the very least, I feel that it’s dishonest to discuss Ginsburg’s legacy without acknowledging that her replacement was Amy Coney Barrett, and it didn’t have to be, and we, the living, have to live with that for the next few decades. Hopefully Justice Breyer will avoid the same mistake.