Let us now praise Ruth Bader Ginsburg. There is ample grist available for hagiography: in the year 2018 alone, a slew of glowing retrospectives celebrated Ginsburg’s status as a feminist heroine and champion of women’s rights. There was Ruth Bader Ginsburg, a biography by U.C. Santa Barbara history professor Jane Sherron De Hart. There was a Netflix documentary about Ginsburg’s career, simply entitled RBG. And the list goes on. But these accounts paid a price for their relentlessly laudatory tone. Missing was any serious appraisal of her professional legacy, its place within larger judicial and legislative debates, and its implications for the shifting and often conflicting roles of women in modern society.
To give RBG’s triumphs some context, we may compare her with the subjects of George Vaillant’s Adaptation to Life (1977), a report on the lives and careers of 268 men who attended Harvard just before World War II. From an early age, Ginsburg exhibited all the chief virtues and strengths of the most successful graduates described in that book. She was blessed with high intelligence, unwavering self-discipline, a distinct lack of any major neuroses, and a tireless appetite for work. Though reserved and unassuming, she attracted friends from across the political spectrum, including her nemesis on the Supreme Court, Antonin Scalia. She demonstrated stoical persistence in the face of setbacks and unfair treatment early in her career. And her work ethic was unmatched: to this day, one of her abiding mantras is, “think about what you want, then do the work.” Finally, like many of the most well-regarded men in Vaillant’s book, Ginsburg has always defied the common misconception that career success must come at the expense of other kinds of fulfillment. Even during her meteoric rise to fame she cherished her friendships, loved her family, traveled widely, and spent evenings at the opera. As the quintessential high-functioning, well-rounded individual, Ginsburg would have been among the most impressive of Vaillant’s case studies had she been male.
Throughout her long life, Ginsburg has filled four major roles—student, litigator, judge, and female celebrity/icon. She was born in 1933 as Ruth Bader—a self-described “lucky girl who grew up in Brooklyn.” The petite, demure, dutiful daughter of religiously observant Jewish immigrants, she occupied a stable and traditional pre-war home. Her mostly happy upbringing was marred by the premature death of her beloved mother and the business failures of her charmless, depressive father. Despite these difficulties, there is no question that her haut-bourgeois background provided a solid foundation for the rich, eventful life to follow.
As an undergraduate at Cornell University, Ruth Bader soon met the man who would become her husband, Marty Ginsburg. She chose well. Though it was unconventional in those days for a woman to seek legal training, Marty’s generous and open-hearted family not only embraced Ruth’s decision to attend Harvard Law School but even paid her way. Marty, who attended Harvard Law with her and became a prominent tax expert, was her constant, devoted husband during more than 50 years of marriage. He appreciated and praised her achievements, cooked her meals and made sure she ate, looked after their two children, kept track of the nanny taxes, changed jobs to accommodate her career, and presided over their shared social life with impish good humor. Before he died of cancer in 2010 he wrote her a letter on yellow legal pad paper, which De Hart reprints in her biography. It’s impossible to read Marty’s final message of devotion with dry eyes.
Ginsburg excelled at law school from the start. Female students were then regarded as strange and singular creatures to be patronized and laughed at, but RBG was undaunted. Nor was she fazed by her responsibilities as the mother of a young daughter. She forged lasting bonds with a few inspirational professors—including the formidable Erwin Griswold, then the dean of Harvard Law and later an ally in the judicial nomination process. He once asked Ginsburg, at a dinner given in honor of female students, how she could justify taking a man’s place at the law school. (The moment is depicted melodramatically in Mimi Leder’s 2018 biopic, On the Basis of Sex.) Her shrewd and cagey response was that she had decided to study law “to know what my husband does, so I can appreciate him better.”
When her husband contracted testicular cancer in his second year, Ginsburg attended many of his classes as well as her own and enlisted fellow students to provide notes for the rest. All this while she was taking full responsibility for their daughter, Jane, a toddler. Ever upbeat, Ginsburg later told friends that the experience, though worrisome and stressful, had revealed to her how much she was capable of. And in fact, despite the pressures of her personal life, Ginsburg was one of only two women in her class to make law review (an honor her husband repeatedly—and annoyingly, to his fellow students—predicted would be hers).
After transferring to Columbia Law to follow her husband when he took a job at a New York firm, Ginsburg hit the familiar snags facing women lawyers in the 1950s. Despite her high class-rank and enthusiastic recommendations, brand-name judges repeatedly rejected her clerkship applications. (Learned Hand and Felix Frankfurter explained that her presence would compromise their freedom to swear.) When she began teaching at Rutgers Law School in 1961, she was told she would be paid less than her fellow male professors because her husband had a good job. With her eye ever on the main chance, she then agreed to go to Sweden for several months and coauthor a book about Swedish civil procedure, leaving her daughter behind to be cared for by her husband and his family. Eventually Jane came overseas to join Ruth.
Upon her return to Rutgers, Ginsburg volunteered with the American Civil Liberties Union, which exposed her to a steady stream of complaints from women about discrimination. At a time when women’s rights litigation was in its infancy, she spearheaded many of the first efforts to challenge double standards based on gender. An eventful decade of litigation ensued, including the founding of the ACLU’s influential Women’s Rights Project. These were Ginsburg’s glory days, in which she devoted herself to advancing what she called “the constitutional principle of the equal citizenship stature of men and women.” Deploying her signal knack for selecting and framing cases, she helped show the Supreme Court how legal gender distinctions, seemingly benign and protective, often harmed and limited women. As she put it, the “pedestal” on which the law placed women too often functioned as a “gilded cage.” Although she achieved some early successes, her effort to scrub legal rules of gender distinctions and stereotypes was an uphill battle. The law had long indulged generalizations and group-based distinctions that, although not fitting every case, were roughly accurate. Racial generalizations of this kind had been discouraged by the civil rights amendments. But in other cases it was standard practice to leave group distinctions undisturbed, unless they were found to be completely arbitrary and without “rational basis” for existing.
Ginsburg thus had to confront widespread acceptance of gender-based legal stereotypes and the lenient standards of legitimacy to which they were held. Her first formal effort to do so was the Moritz tax case, brought to her attention by her husband. An IRS rule allowed single women, but not single men, to deduct the cost of hiring caretakers for elderly dependents. Despite the government’s protestations that invalidating the IRS allowance would jeopardize hundreds of legal provisions, the Tenth Circuit Court of Appeals struck the rule down in Moritz v. Commissioner (1972), finding that it lacked any rational basis. Ginsburg’s victory in that case was unexpected and unprecedented. As one of the first times when the federal Constitution was found to forbid a legal gender distinction, Moritz was also a harbinger of things to come.
The case revealed to Ginsburg and her fellow litigators that male plaintiffs might be particularly effective at commanding the sympathy of judges, who were mainly middle-aged men. Operating on this principle, she searched for and found her ideal plaintiff in Stephen Wiesenfeld, a young man left to care for his infant son after his wife, the family breadwinner, died in childbirth. Wiesenfeld was barred from collecting a Social Security survivor’s benefit designed to help support children of deceased workers, because the law made that money available only to widowed mothers and not to widowers. The key to success in Weinberger v. Wiesenfeld (1975) was highlighting that Congress’s purpose had been to enable a widowed mother to stay home and care for her children. This fact had previously been overlooked in the legislative record, but it was unearthed by Ginsburg’s enterprising law clerk Marsha Berzon (later a high-profile women’s rights attorney herself). Although Congress’s decision seemed to favor women (by reserving widows’ benefits for them), Ginsburg cleverly showed that it actually hurt them by eliminating a payment on a deceased mother’s Social Security account that would have enabled her husband to stay home and care for her child. The Supreme Court bought the argument: even the conservative Chief Justice William Rehnquist agreed that depriving the Wiesenfeld baby of his father’s care was arbitrary and served no rational purpose.
A similar argument prevailed in Califano v. Goldfarb, a 1977 case in which a widower objected to a rule that granted survivors’ benefits automatically to widows while requiring widowers to prove prior financial dependency on their wives. Although the rule appeared to be based on an accurate generalization—women tended to be financially dependent on their spouses far more often than men—Ginsburg won the case by convincing the Court that the rule, like the one in Wiesenfeld, arbitrarily hurt women workers by diluting the value of their Social Security accounts.
These cases helped Ginsburg develop a strategy for striking down double-edged gender distinctions that, though designed to benefit women, sometimes penalized them or locked them into stereotypical roles. But though this strategy was responsible for some of RBG’s signal victories, it didn’t work well for gender rules that appeared all upside for women. For instance, a property tax exemption for widows in Kahn v. Shevin (1974), and a more generous method for calculating Social Security benefits for women in Califano v. Webster (1977), were upheld by the Court on the basis of administrative convenience and the reality of women’s more precarious financial status. Challenges to pregnancy-based discrimination also fared poorly. Taking a strictly formal approach, the Supreme Court held that because pregnancy was voluntary and only women could become pregnant, a company’s refusal to treat pregnancy as a physical disability did not count as gender discrimination. That outcome was eventually overridden in 1978 when Congress passed the Pregnancy Discrimination Act, which mandated that pregnancy be treated like other medical conditions.
Despite these ups and downs, statutory and constitutional protections for women steadily evolved and expanded. Gender classifications were viewed with growing suspicion, sexual harassment was recognized as potentially actionable gender discrimination, and pregnant women received unprecedented job protections. Although Ginsburg failed to persuade judges to subject gender distinctions to the same level of exacting scrutiny as racial ones, she did manage to nudge the courts away from the rational basis test to a stricter requirement that all gendered distinctions stand up to “intermediate scrutiny.” Gradually the standard was raised still further, until gender discrimination needed an “exceedingly persuasive justification” in order to stand.
Ginsburg’s appointment to the prestigious D.C. Circuit Court in 1980 ended her illustrious litigation career. In the relative calm of the Circuit, technical questions of administrative law dominated the docket and contentious, high-profile issues were rare. On the bench, she displayed her talent for analytical rigor, methodical reasoning, and lawyerly attention to detail. She burnished her reputation as an ideological centrist and temperamental moderate with little taste for dramatic legal gestures. And she forged alliances with a wide range of jurists, including Scalia. All this would serve her well in her quest for a Supreme Court seat.
That quest came to fruition in 1993, when President Bill Clinton appointed her to the seat vacated by Byron White. Despite her reputation as a careful and even-handed thinker, her appointment did not enjoy smooth sailing. President Clinton told Senator Daniel Patrick Moynihan: “the women are against her.” The reason was the Madison Lecture she had delivered at the New York University Law School two months before. In it, she criticized both the successful litigation strategy and the Court’s majority opinion in Roe v. Wade (1973), which invalidated laws outlawing abortion nationwide. Ginsburg had long opined that reproductive rights, including access to abortion, should be guaranteed by constitutional principles of equality, not by the right to privacy as in Roe. But in the Madison Lecture she went further, accusing the Roe decision of “halt[ing] a political process that was moving in a reform direction” and fomenting a “prolonged divisiveness and deferred stable settlement of the issue.” Although feminist ire threatened to derail her appointment, Ginsburg ultimately prevailed. By dint of her husband’s tireless networking, and with the support of key allies like her former dean Erwin Griswold, she secured the nomination and the quick confirmation that elevated her to the nation’s highest Court. Her staid, impeccable personal style and old-fashioned manner of dressing, which she had retained since girlhood, did much to make her appealing as a nominee. Though she had quietly defied a host of traditional expectations, she was never a firebrand, and her conventional demeanor rendered her acceptable to many who might otherwise have found her history of activism alarming.
On the Supreme Court bench, Ginsburg deployed the new “exceedingly persuasive justification” standard for legal gender discrimination to great effect. This was a pivotal point in one of her most important cases, United States v. Virginia (1996), known as the Virginia Military Institute (VMI) case. The majority opinion, written by Justice Ginsburg herself, mandated the admission of women to the venerable state-sponsored military academy. But VMI and similar cases also revealed another obstacle to Ginsburg’s agenda: the legal principles used to vanquish gender discrimination sometimes conflicted with those involved in improving the lot of racial minorities. Some civil rights advocates worried that more exacting judicial scrutiny of gender-based distinctions—which were often defended as “benign” compensation for societal disadvantages—would jeopardize racial affirmative action, often similarly justified as a form of salutary recompense for past mistreatment. For these very reasons, the legal status of such “positive” discrimination remains contentious today.
Ginsburg’s decades-long tenure on the Supreme Court has thrust her into the limelight. Her juridical opinions, however, contain few surprises. Her main concern has been to increase the number of individual rights guaranteed by the Constitution. In doing so, she has largely followed the “living Constitution” script written by the likes of Harvard Law Professor and fellow Justice Stephen Breyer, Harvard Law Professor Laurence Tribe, and Chicago Law Professor David Strauss. Like them, Ginsburg has argued that the Constitution must be reinterpreted in light of new developments in language and moral understanding. The debate between that point of view, and the originalist commitment to reading the founding documents as they were understood when written, has been raging for decades and remains heated today. But Ginsburg’s writings and speeches as a litigator, judge, and Justice are largely devoid of memorable contributions to that debate. Neither temperamentally suited to abstract disquisition nor intellectually equipped for it, she has stuck to using law as an instrument for advancing women’s rights and defending the interests of the downtrodden more broadly.
Her tenure on the Court reveals that she sees plenty of downtrodden everywhere—more and more as time goes by. Her abiding assumption, expressed with increasing openness, is that racism, sexism, and homophobia run deep and wide in our society, requiring aggressive legal intervention. Her articulations of this view can be found in opinions on voting rights, pay discrimination, single-sex education, affirmative action, pregnancy protections, gay rights, gay marriage, and criminal law enforcement. In Shelby County v. Holder (2013), for instance, the Court decided that changes to voting law in Southern states no longer needed to be pre-cleared and reviewed for racial bias at the federal level. Despite scant evidence of any such bias existing, Ginsburg wrote in her dissenting opinion that “[t]hrowing out preclearance when it has worked and is continuing to work…is like throwing away your umbrella in a rainstorm because you are not getting wet.” Her clear assumption was that racial discrimination remains ongoing and omnipresent in 21st-century American society, requiring constant vigilance and legal intervention to keep it at bay. Likewise, in cases involving pay equity, parental benefits, abortion, and other women’s issues, Ginsburg has consistently voted for generous readings of legal protections to secure women’s equality at work and in society generally. She has spoken in favor of expansive legislation and aggressive government intervention along the same feminist lines. Most recently, she ruffled feathers by disparaging then-presidential candidate Donald Trump, earning raised eyebrows on the Left and vocal criticism on the Right: like a number of others, she threatened to move out of the country if he were elected, but has not done so to date, to some people’s disappointment.
Despite having been diagnosed and treated for two forms of potentially fatal cancer, Ginsburg continues to hang on at 86 and so far has missed only one Court session this term. Her tenacity continues to evoke wonderment. In the last chapter of her life, she has come to be regarded as “the Notorious RBG,” an “icon” for American women. The Oxford English Dictionary defines icon as “a person or thing regarded as a representative symbol or as worthy of veneration.” The veneration part is hard to argue with, but holding Ginsburg up as a “representative symbol” for women is a more complicated matter. To do so is to raise inevitable questions about where Ginsburg’s life-long efforts have brought women, where they stand today, and what lives await them in the future.
Ought we to regard Ginsburg as an ideal feminine type—an exemplar of what women should aspire to be? Should she be valorized as a model for young women to emulate? The fact is that there are vanishingly few women, even very smart and educated ones, who would willingly choose to live Ruth Bader Ginsburg’s life or find happiness following her path. Likewise, her idyllically egalitarian marriage—which was so critical to her relentless rise—has proven extremely unusual, in large part due to women’s own choices and desires. The trait that comes through most clearly from Ginsburg’s biographies is her unrelenting willingness to work long hours for protracted, uninterrupted periods, sometimes well into the night. Chief Justice John Roberts, in a recent tribute, took note of her “total disregard for the normal day-night work schedule adhered to by everyone else since the beginning of recorded history.” When Marty Ginsburg was alive, he regularly had to urge her to stop working and come home. She didn’t always listen, routinely staying at her desk well into the evening hours as her husband, children, and dinner awaited her late arrival. (Her son, James, even wrote a poem about it.) Even as a devoted young mother and wife, she had no compunction about leaving her young daughter behind in the United States for weeks while pursuing an abstruse and all-consuming project in Sweden.
When it comes to Ginsburg as icon and role model, it must be acknowledged that her careerism makes her an extreme rarity among her sex. How many women would value work over motherly duties and domestic priorities in this way? How many would work long hours on a regular basis, content to leave their husbands at home tending the children? And how many could achieve a marriage tilted so decisively toward their own work priorities? Women like Ginsburg are what feminist writer Felice N. Schwartz calls “career primary”—deeply involved in and devoted to their work, highly ambitious, and disposed to think and act “like men.” In fact, Ginsburg is an updated version of what was once known as a bluestocking—the emerging 19th-century version of today’s hard-driving careerist. Born into a more emancipated era, and by dint of her extraordinary talents and felicitous marriage, Ginsburg has been able to combine her professional ventures with a family and children, attaining almost perfect gender equality in her own life. But that trick still eludes the vast majority of women today.
What Women Want
What the work of British sociologist Catherine Hakim and others reveals is that the career primary/bluestocking pattern remains unusual even among the best-educated women. Most notably, it is rare that women, regardless of their profession, ability, or training, are willing to work long hours routinely and consistently. The vast majority of women, and certainly more women than men, want to spend significant amounts of time on family, children, friends, leisure, and civic-minded pursuits. This holds good even among the most talented. As David Lubinski and his team at Vanderbilt University have shown in a decades-long study (released in 2014 by the Association for Psychological Science), gifted boys and girls express different preferences for ideal work hours and attention to work versus family. These preferences carry through into adult life: women work fewer hours and are less single-minded in the pursuit of professional goals. That most women are willing to sacrifice career ambitions to domestic pursuits is confirmed by the findings of Alexandra Killewald and her Harvard University researchers. In studies for the Upjohn Institute for Employment Research, Killewald has shown that most mothers today, and especially the most educated and affluent, choose to leave the workforce for a while or to work “at reduced intensity.” According to Killewald, this reflects what mothers want. She notes that “a plurality of Americans [view] mothers’ part-time employment as ‘ideal’ for young children, and the same is true when mothers of minor children are asked what their ideal work situation would be.” These findings are consistent with patterns observed in a 20-year study of University of Virginia Law School graduates by John Monahan and Jeffrey Swanson, published last year in the Journal of Empirical Legal Studies. Monahan and Swanson found “[m]arked gender differences in the professional lives of respondents: women, far more often than men, leave the workforce or work part-time for protracted periods to care for children.”
Similarly, research on marital and domestic divisions of labor reflect dominant patterns that are far from purely egalitarian. More than two thirds of husbands out-earn wives, with greater imbalance among the most educated, affluent families. Women’s preferences play a significant role in fostering these patterns: most women are what demographers describe as “hypergamous,” which means they choose to marry older men with higher earning power. Those choices contribute to role distinctions within families, where husbands act as hard-working breadwinners and women shoulder greater domestic responsibilities.
What does all this have to do with Ruth Bader Ginsburg, the iconic role model and exemplary female type? However accomplished and admirable, RBG is, in important respects, an atypical woman—a breed apart to the point of being sui generis. But that suggests an unhealthy side to the Ginsburg cult. As the essayist and novelist Mary Eberstadt remarked in Commentary (October 2019), today’s women are continually given the message “that they must perform like men—that men are the standard by which women should be measured.” Glorifying those who “behave in stereotypically male ways” implicitly downgrades those “who would persist in traditional female ways.” Although perhaps she inspires a few women to greater heights, RBG and the worship that attends her may lead others to feel ashamed of the lives they have chosen or of what they really want from work, men, and family life. Dahlia Lithwick, in her article on Ginsburg for the Atlantic (February 2019), declared that RBG represents “what we dream of for our toddler daughters.” Has Lithwick never considered that her daughter might not dream the same dream? What if she ends up staying home, or working a less demanding job, to care for her children and support her breadwinner spouse? How would Lithwick regard her daughter then, and how would her daughter see herself? In fact, many top-tier women choose those options, eyes wide open, over the kind of life Ginsburg has lived. The vast majority of even the best and brightest cannot be, and will not be, RBG. Who will serve as icon for them?
The tensions between Ginsburg’s example and the reality, between feminist aspirations and most women’s lives, and between incremental progress and dramatic transformation, are indicative of larger fault lines in feminism that Ginsburg has barely addressed in her career, writings, or opinions. Ginsburg has always been primarily an “equity feminist.” She has pushed for formal equality and for greater access to arenas from which women were previously excluded, expecting greater access to yield greater parity. She proceeded in this way because she envisioned women as a match for men not just in legal formalisms, but in outcomes and roles. Yet despite pushing conventional limits and challenging gender stereotypes at home and at work, she favored a targeted legal path to fixing gender inequality, not a revolutionary transformation of all aspects of society. She had little interest in recasting basic institutional design or disrupting workplace hierarchies: she accepted longstanding, conventionally masculine standards for education, legal procedure, analysis, and argumentation. In a speech to women judges in 1986, she argued against preferences and special treatment for women in such areas as pregnancy and child rearing, warning that those efforts would reinforce stereotypes. In these respects, at least, she wanted women to be more like men.
And though she is frequently billed as a pragmatist, Ginsburg in her writings reveals an optimistic, idealistic vision of harmoniously egalitarian families, political precincts, and workplaces. Without ever confronting the question deeply or directly, she implicitly accepts the basic premises of blank-slate progressivism: that the present realities of gender, including women’s and men’s differing preferences, choices, capacities, and desires, are the remnants of a benighted and oppressive past that can be vanquished and eliminated by getting law and policy right. She has often asserted that such reforms would benefit both sexes, so that her quest for women’s rights is also one for human rights. But this win-win conception carries limitations and creates blind spots. Fueled by her own fortunate situation and the insular elite domains she occupies, Ginsburg has failed to confront the real tradeoffs that might be entailed in expanding women’s rights. She has never stopped to consider that the nature of womanhood and the intricacies of family relations might impede equality of outcomes, or that interchangeable roles for men and women might not be attainable, or even desirable, for the great majority of people of either sex.
In recognition of these insights, there emerged in the 1980s a different strain of feminism from the one Ginsburg championed. Designated “difference feminism,” this alternative philosophy acknowledges women’s unique vulnerabilities, traits, and needs, calling upon society to recognize, accommodate, and even cater to the ways in which women are not exactly like men. Within the legal profession itself, the contrast between equity and difference feminism was presaged, strikingly, by the government’s argument in the VMI case. The state proposed that a separate military education program be developed at Mary Washington College as a gentler and less “adversative” substitute for the rigorous demands of a VMI education. In his counterargument, Deputy Solicitor General Paul Bender cast aspersions on the state’s assertion that women couldn’t handle the harsh regime at VMI. On the very same logic, he suggested, “a new women’s law school” would have to be set up with “a much warmer, a much more embracing environment”—a notion, he implied, both risible and demeaning.
But ironically, quite similar proposals were advanced in the same year by feminist Lani Guinier, now a Harvard Law professor, in a University of Pennsylvania Law Review article. According to Guinier, the Socratic method, with its emphasis on logic, rigor, fine analytic distinctions, and public performance, was personally intimidating and psychologically traumatic for women. Male-oriented pedagogical techniques interfered with women’s ability to learn and accounted for the then-measured gaps between males and females in law school performance, class participation, and subjective self-evaluations. Guinier urged law schools to adopt more “female-friendly” educational methods that were better suited to women’s wants and needs. Unlike Ginsburg, who demanded entry to male precincts and permission to perform on men’s terms, Guinier asked that the contours of the field, and the playbook for the game, be radically revised. This same impulse has now motivated calls to revise basic rules in politics, science, the entertainment industry, the military, journalism, and other male-dominated workplaces.
The future of women in American society will undeniably be shaped by how it responds to these demands, and how that response affects men’s and women’s lives. Ruth Bader Ginsburg, for her part, has mostly avoided grappling with difficult questions about the nature and source of sex differences, their malleability or intransigence, and their implications for the world of work, sexual relations, and family. Despite RBG’s many successes, these questions remain her legacy for future generations to address. They will be with us for a long time.