Justice Ginsburg's Greatest Hits Reminds Us of the Virtues of Dissent

by Megan Volpert

5 October 2017

 
cover art

My Own Words

Ruth Bader Ginsburg

(Simon & Schuster)
US: Oct 2017

“[A] sense of humor is helpful for those who would advance social change.”

Ah, the notorious RBG—as affectionate and cool a nickname as any Supreme Court Justice will ever have. But for what exactly is Ruth Bader Ginsburg so notorious and what is the actual source of our affection for her? With the help of her longstanding biographers, Mary Hartnett and Wendy W. Williams, Justice Ginsburg will herself attempt to answer these questions in My Own Words.

A bombshell tell-all this book is not, with a few warm jabs at her dear friend, the late Antonin Scalia, notwithstanding. Ginsburg is a sitting Justice on the highest court in America, and perhaps the only one of the three branches of our government still trying to maintain a sense of decorum. Plus, she’s a lawyer—a very personable one, but still, the bulk of her own words have always adhered to a certain juridical standard. Her memoir, if we can call it that, is no exception.

Is My Own Words a memoir? Of sorts. I’d said it’s closer to a collection of greatest hits, though many of the hits were previously only performed for a small, exclusive crowd. The contents are both chronological and themed. There are very few new words here beyond the short introductions to each chapter; most of the book is a lightly edited and expertly arranged in a series of things she has previously published as decisions or has spoken about as a guest at various luncheons and awards ceremonies. The biographers say, “Striking to us is the way the Justice would give a speech, adapt it to other occasions, use its various points in different contexts, and, in one or more iterations, add footnotes and usher it into print. […] A similar process was evident in the briefs lawyer Ginsburg wrote for the gender equality cases she brought to the Supreme Court in the 1970s, briefs that organically grew or shrank, changed in emphasis, or altered in their details over the course of years” (193).

Taken together, these fragments serve as an excellent reminder of why we hold RBG so very dear—and picked apart—we still have a long way to go for equal dignity under the law that Ginsburg kept a steady eye on long before her nomination to the Court in 1993. She wrote in 1971 that “the attention to feminist organizations and activities is not misplaced, however, for in the current decade a less submissive majority seems certain to develop” (124). Of her work as a professor and advocate at the ACLU, she says, “work progressed on three fronts: we sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine” (155). This three-pronged strategy, which Ginsburg helped to pioneer and then proliferate through all three means, is still the basis for progressive activism today.

Progress toward female equality has hardly been swift. Instead of counseling patience, Ginsburg relies upon incrementalism and her funny bone. She counsels that “a sense of humor is helpful for those who would advance social change” (71). Of the Supreme Court figure she most admired before her own career there, she reflects, “Justice Benjamin Cardozo said, ‘Justice is not to be taken by storm. She is to be wooed by slow advances’” (184). Indeed, seldom do the real heroes of progressivism fathom themselves as such. Of her work on the landmark equal protection case Reed v. Reed, she notes that “Sally Reed was not a sophisticated woman. […] She probably did not think of herself as a feminist, but she had the strong sense that her state’s law was unjust, and faith that the judiciary could redress her grievance” (159).

Faith in the judiciary is above all the theme of My Own Words. This is not to be conflated with Ginsburg’s faith in herself. She is neither a braggart nor a grandstander, despite the fact that, as a lawyer, professor, ACLU activist, judge, and ultimately Supreme Court Justice, she could lay uncontested claim to having personally done more to advance the equal protection of women under the law than any other figure in American history. Her husband Marty says, “All in all, great achievements from [the Moritz] tax case with an amount in controversy that totaled exactly $296.70” (129). From these small potatoes came immense changes in the lives of women, but Ginsburg never got bogged down by big feelings or historical tides, especially after she was seated on the Court.

Of her nomination, she said, “What has become of me could happen only in America” (182). Of her early work there, she recalls, “I sought Justice O’Connor’s advice [on writing my first opinion]. It was simple. ‘Just do it,’ she said. […] That advice typifies Justice O’Connor’s approach to all things. Waste no time on anger, regret, or resentment, just get the job done” (90).

And yet, the wellspring of her feelings is clearly quite deep. With over two decades on the Court under her belt now, she clings to a particular high water mark. “I had the heady experience once of writing a dissent for myself and just one other Justice; in time, it became the opinion of the Court from which only three of my colleagues dissented. Whenever I write in dissent, I aim for a repeat of that experience. Much more often than not, the conference vote holds, but hope springs eternal!” (282). The biographers say, “To Justice Ginsburg, history teaches that the Court should avoid either impeding, or leaping too far ahead of, the political process, instead engaging in a ‘temperate brand of decisionmaking’ that proceeds incrementally, ordinarily deciding what is required by the case before it and leaving further development to later cases” (196). Americans have come to view dissent as a radical immediacy, but in fact, Ginsburg makes an argument for dissent that more closely approaches a pragmatic incrementalism.

The overall effect of My Own Words is a sense that Justice Ginsberg remains a cogent and agile mind devoted to a singular life-long mission. As a history of her good deeds and right thinking, this book showcases in precise detail how the hard work of equality has been moved forward under Ginsburg’s judicious hand. What she told the Senate Judiciary Committee as they prepared to question her before confirmation feels like the perfect way to endorse this book: “[My complete body of published material] is the most tangible, reliable indicator of my attitude, outlook, approach, and style. I hope [the committee] will judge my qualifications principally on that written record” (185). Yes, My Own Words proves the notorious RBG is fully qualified for her prime place in American history.

My Own Words

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