Ruth Bader Ginsburg: A Life

by Jane Sherron De Hart
Reviewed date: 2020 Dec 9
733 pages
cover art

A Life. A Biography. A Hagiography.
To hear Jane Sherron De Hart tell it, RBG is a liberal saint. She is perfect and never made a mistake. She is always right. Everyone who opposed her is narrow-minded, partisan, bigoted, and wrong.

I read this book because I wanted to know why RBG was so beloved. I think I understand why. First, she made important contributions to the women's rights movement as an advocacy lawyer. Later, unable to further advance her goals as an activist, she sought out a judgeship and later a position as a Supreme Court Justice, where she used every bit of influence available to her in order to shift the law to where she wanted it to be. She was a master at rhetoric and when she found herself in the minority on the Court, she issued forceful dissents that influenced the public and Congress, and brought her some notoriety. She seized on that fame and played it up, becoming the first and perhaps only celebrity Supreme Court Justice. (The woke liberals ate it up--RBG was a progressive New York cosmopolitan, after all.) Through it all she was a genuinely nice human being, who treated everyone with love, warmth, and dignity. I believe that her entire career as a judge was in some ways dishonest and wrong--I don't believe she was ever committed to being a judge who was a neutral arbiter of the law, which is what it should be--but she was nonetheless a truly wonderful human being. The world needs more people like Ruth Bader Ginsburg--just not on the Supreme Court.

Preface: An American Icon
The author lionized RBG. She highlights certain themes that came out in her research on RBG. First, the "sheer difficulty of the struggle for equality under the law" (page x.) Second, the "dynamic interaction between progressive social movements and the conservative counter-movements they trigger" (page xi). Finally, the "dynamics of the Supreme Court itself" (page xi, xii). The author betrays a blatant bias against originalism and a neutral Court. I do not expect this book to be a fair analysis of RBG's legal ideas, but it can still be useful.

Chapter 1
RBG was raised Jewish. Her mother Celia encouraged her and pushed her to excel and get the education that Celia was denied. The Jewish patriarchal customs did not treat women as equals, particularly regarding religious customs and ceremonies around Ruth's mother's death. The strict and unjust treatment of her father after Celia's death lead Ruth to reject religion and become a secular Jew. Nevertheless, Jewish thought was a part of her.

She was a feminist from a young age, even as a schoolgirl.

Chapter 2
At Cornell she studied under Nabokov, who taught her the importance of words (p. 33-34).. Robert Cushman taught her the value of "spare, clear prose" (p. 35). She was a dedicated student, who knew "logic and reason" and who had "intellectual discipline and self-discipline." She did not seek leadership, but "her strength of character and intelligence" lead others to thrust leadership upon her. (p. 38)

This was an era where women were treated differently. Most went to college to meet a man and get married. When she married Marty Ginsburg, she lost her scholarship because the regulations treated married women differently than single women, or than married men. RBG was offended when "bureaucratic regulations mask prejudice and deny legitimate need." (p. 50)

Her husband, Marty Ginsburg was astonishingly feminist. His family was generous, welcoming, and also accommodating and gracious. Her in-laws gave remarkable support to her career ambitions.

Chapter 3
Now we get into legal theory. The new fashion was process theory, an offshoot of legal realism. Legal realism assumes that law is influenced by social, political, and economic forces, rather than being fixed rules. Judges are not neutral, especially when the law is unclear.

What process theory does is require judges to build a logical framework upon which to hang their decisions. First start with neutral principles, build on precedents and statute, and use a reasonable elaboration to make policy.

This is now the courts usurp the role of the legislature. This cloaks the policy-making objective that underlies the decision-making. At least process theory is more intellectually rigorous than legal realism, which scarcely tried to make a reasoned argument from the law. But it seems to me that process theory is less honest, because it tries to hide the agenda.

RBG could not agree that the process of how the case is decided is more important than the substance of the decision. This indicates to me that even then, in school, she had an agenda. The law was her vehicle to enact it.

Chapter 4
After graduation, she got no job offers. "A woman, a Jew, and a mother to boot" were "a bit much." Her Columbia professor got her a clerkship with Palmieri. Later, Palmieri tried unsuccessfully to get her a clerkship with Frankfurter. She did eventually get job offers, but it was still hard for women. She had to work harder to compensate.

She got an assignment to study Swedish law, and in doing so she came to believe that Americans should learn from foreign legal systems. (I disagree. How can we? Surely precedent cannot apply, and the process cannot be so different, can it? So how does this even work?)

Regarding abortion: "Ginsburg questioned the criminalization of a medical procedure in the United States that seemed so fully warranted" and was legal in Sweden. And thus we come to embrace murder and child sacrifice. Brilliant legal mind my ass. Can't see the human being right in front of her.

She was a professor at Rutgers, and volunteered at the ACLU to get litigation experience.

Chapter 5
RBG began studying women's law, to represent women in court for equal rights. And there were a lot of rights to go after: The EEOC (Equal Employment Opportunity Commission) didn't take women's complaints seriously, marital rape wasn't illegal, discrimination was commonplace in academia, contraception was illegal, women would not even choose to keep their names upon marriage. Black citizens would not be tried by an all-white jury, but women could be tried by an all-male jury.

Under the law, men were treated as individuals with full rights, women were treated as a special class in need of paternalistic protections. There were arbitrary restrictions on their rights. RBG started a class on women's rights, and she knew she was opening a whole new frontier in legal advocacy.

Chapter 6
RBG took on the Moritz case, where a man was denied a tax deduction that would have been granted under the tax code had he been a woman. She tried to prove that a sex-based rule violated the Constitutional rights to equal protection and due process.

Previously, equal protection applied when comparing one man to another man, one woman to another woman, not when comparing a man to a woman. Men and women were in separate classes, separate categories.

Chapter 7
RBG keeps citing foreign law. She did this to show judges that times are changing, that these ideas are not radical, that this is normal, that the norms upon which the laws is interpreted are changing. (p. 159)

In Reed v. Reed the Supreme Court struck down a law that discriminated on the basis of sex, saying it was a violation of the 14th Amendment.

Chapter 8: Setting up Shop and Strategy
RBG sets up the women's rights litigation office of the ACLU, staffed mostly with her students.

Author De Hart hates Rehnquist and his strict constructionist view of the law, and does not even pretend to give him or it a fair presentation. She says Rehnquist is a Nixon stooge to politicize the Court and advance a Republican agenda.

I say, Rehnquist is prescient when he writes of a desire on the left to erase all distinction, even physical and biological, between men and women. (p. 166).

RBG's biggest hurdle was educating men--and women--on how sex discrimination hurt women, and how even neutral policies can result in discriminatory outcomes due to inherent differences between men and women.

Her challenge: to manage the overall case litigation strategy, picking good cases to advance the cause of women's rights incrementally. It was hard to organize when too many organizations were pursuing women's rights, not all organized--unlike the civil rights movement which had been more organized.

Chapter 9
RBG took the case of Susan Struck case, who was forced out of the military when she became pregnant. RBG felt this forced women into an unfair dichotomy: full motherhood or full career, with no middle way.

Also, author De Hart doesn't seem to understand anything. On page 191 she says opposition to abortion was based on thinking that abortion was "an exercise in moral laxity, female self-indulgence, and abdication of maternal responsibility." This is not a neutral historian. She is an advocate and a champion.

Struck case was dismissed and could not be a basis for Roe v. Wade which led to a poorer decision in that case. (RBG always felt it was a poorly reasoned decision.)

Chapter 10
The Frontiero case, a woman denied a housing allowance when she got married, because her husband was not automatically considered a dependent. De Hart goes into the weeds on the Supreme Court Justice's deliberations. RBG didn't get the sweeping decision she wanted, which led her to adjust her legal strategy to get more "middle ground" rulings. Basically, RBG had hoped to get the Court to adopt the ERA before it was even passed. Some Justices wanted to do so as well, out of fear that it would not pass. (And indeed it didn't.)

Chapter 11
RBG lost the Kahn case, about an unequal Florida tax break that was available to widows but not widowers. Again De Hart goes into details on the Supreme Court deliberations.

Chapter 12
The Wiesenfeld case extended Social Security survivor benefits to widowers, not just widows.

Chapter 13
More Court victories, more legislating from the bench. The ERA still doesn't pass. Courts refuse to go as far as RBG wanted in changing the law. She would have to become a judge herself.

Chapter 14
Conservative resurgence prompted RBG to apply for a judge position in the expanded federal courts under the Carter administration.

This is rich! (p. 282) RBG is lauded for her "objectivity and moderation" when she had been a radical tempered only by competence and the wisdom to pursue change incrementally. (p. 286) It's like RBG thinks she's owed a spot on the bench to continue her advocacy work. That's not a judge's role.

Conservative fears of a feminist with an agenda on the bench seem founded. RBG wanted the position so she could make law. She played a moderate on the appellate court, always with an eye on the Supreme Court. Moderate indeed!

Chapter 15
RBG's approach is "pragmatism" not rules. (p. 305) So much for the rule of law. From page 321, Senator Willian Cohen: "There is some suspicion in some circles … that you are basically a political activist who's been hiding in the restrictive robes of an appellate judge, and that those restrictions will be cast aside when you don a much larger garment." Yes!

Only after RBG was appointed to the Supreme Court was a women's bathroom added. O'Connor had been on the court twelve years.

Chapter 16
She starts relatively centrist, then writes a great VMI opinion forcing the Virginia Military Institute to admit women.

Chapter 17
VAWA, Bush v. Gore. De Hart truly loathes the conservative Justices. Also, I still think it likely that Bush got more votes than Gore in Florida, liberal anger notwithstanding.

Chapter 18
RBG wrote a scathing dissent in the Carhart case upholding the Partial-Birth Abortion Ban Act. She may be right on Constitutional and precedent grounds, but she is defending murder.

RBG still wants to rewrite Roe v. Wade to base it solidly on equal protection grounds.

More dissents. Boy are we lucky she never had a solid liberal majority. And De Hart is so liberal it hurts. Everything Roberts does is an evil conservative plot. Wow.

De Hart hates Bush. Oh, and the deification of Barack Hussein Obama.

I'm still not sure why RBG was so loved and beloved by liberals if she so rarely got her way on the big important cases?

Chapter 19
De Hart doesn't even pretend to be fair to Republicans. She is so woke it hurts.

RBG dissented in Citizens United and Heller. Ledbetter dissent. De Hart keeps coming back to this. RBG influenced people and even Congress through her forceful dissents. RBG thought the minority could be more influential by speaking as one, so she tried to get all the minority justices to sign onto a single dissent.

De Hart keeps speaking of the Court's move to the right, which I'm not sure is true, and for which she provides no evidence or support.

p. 422: As always, RBG's moderate views were calculated to achieve long-term radical change by pushing the envelope incrementally. Boil the frog, so to speak. (De Hart criticizes Roberts for what she sees as a conservative attempt to do this, not seeming to understand that she's lionizing RBG for doing so in the opposite direction.

RBG's radical liberal bent is unleashed in her dissents. She relished her status as a liberal icon. She maintained good relations with reporters, which helped get her favorable coverage. (Also being a genuinely nice person, a good and thoughtful friend to many, didn't hurt.) She cultivated and nurtured her image as a liberal icon.

Chapter 20
RBG dissented in Fisher; she wants race-based affirmative action. De Hart gives us a long, biased history of the Voting Rights Act. De Hart presumes the worst of every Republicans and every conservative. RBG dissented in Shelby, the VRA case.

Chapter 21
Perry struck down the Defense of Marriage Act (DOMA). Windsor struck down Proposition 8. Obergefell legalized and mandated gay marriage nationwide.

RBG was a master at rhetoric, changing and influencing national policy even in her dissents. She dissented as much--or more--for the press and the public as she did for the legal aspects. RBG was never in it for the law. The law was only ever a tool to reshape society to be what she wanted it to be.

She was great at turning a phrase. "Skim milk marriage." "Throwing away your umbrella in a rainstorm."

She became a celebrity. She was the Notorious R.B.G. She played it up, celebrated it. More than any Justice, she really seemed to crave the celebrity aspect, probably for the influence it gave her. Her small size helps. The image of a tiny woman in robes wielding huge power and being compared to the Notorious B.I.G. is amusing.

Chapter 22
p. 493, she spoke out against Trump. "Had she become too outspoken with her increasing celebrity?" Uh, yes. Yes. She forgot her role as a neutral arbiter of the law. Actually, no, she never intended to be one. It was only ever an act for her. She was an advocate and an activist.

p493. Oh man, all her European travel. She is such a New York cosmopolitan. That's OK, I guess--New York cosmopolitans are people too--but it makes it hard to relate.

Chapter 23
Gorsuch sounds like my kind of guy. Lots of immigration, deportation, detention cases. RBG managed to cobble together majority rulings on some cases, notably citizenship, and to punt some cases like Masterpiece Cakeshop back to lower courts. Kennedy's support helped.

RBG was a law professor, a women's rights advocacy lawyer, a District Judge, a Supreme Court Justice, and a celebrity Justice. And through it all, she was a genuinely nice, caring individual who treated everyone with love, warmth, and dignity. (I still don't think anybody should have let her anywhere near a judgeship.)

The book is OK up until RBG becomes a judge. Before that, it explains her background, her formative experiences, and her thoughts and worldview. After that, the book is largely silent on RBG and devolves into an extraordinarily partisan recitation of recent political history and a dry recounting of important SCOTUS cases.

Kavanaugh replaces Kennedy, who was more conserative than liberal after all.

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