by Michael C. Dorf
"President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016.
"[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius.
It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing their schemes for how they intend to reshape the post-RBG Court, if not out of common decency then perhaps because appearing to take time to grieve would be good politics. Call me naive.
I shall no doubt have much to say about whatever comes next, but for today I want to take a moment to celebrate Justice Ginsburg in broader perspective. I shall do so using a trope that my father, who also died in this annus horribilis, often invoked. My dad was a couple of years older than Justice Ginsburg and, although they did not know each other, moved in some of the same circles. That included overlapping for a couple of years at Cornell when she was an undergrad and he was a graduate student here.
My dad studied philosophy and liked to use an image from the English philosopher Henry Sidgwick: the point of view of the Universe. Sidgwick was a utilitarian who embedded that turn of phrase in a claim that one oughtn't to favor one's own interests over those of others (except to the extent that one knows one's own interests and is better able to advance them than to advance those of others). My dad and Justice Ginsburg were both notable for putting the interests of others -- both those close to them and strangers -- ahead of their own interests in many ways, but my dad, who knew what Sidgwick meant, liked to use the term in a different way. When dealing with one of life's minor or not-so-minor setbacks, he would say that it helps to see it from the point of view of the universe. He used the phrase less as a utilitarian and more as a stoic (in the original sense, not in the colloquial sense of joyless).
RBG was undoubtedly a stoic too. Given her repeated triumphs over cancer, it was tempting to see her as a kind of benevolent version of Rasputin: unkillable. But RBG did not think of herself that way. She repeatedly accepted the cards she was dealt and played them more successfully than one would think possible, by applying her enormous intelligence, sound and sensitive judgment, and phenomenal work ethic.
I did not know RBG nearly as well as those of my friends who clerked for her. I clerked at the Court when she was still on the DC Circuit. Still, I like to think of myself as connected in some way. As a teacher of two subjects that were dear to her (civil procedure early in my career and constitutional law throughout), I studied and assigned her many important opinions and dissents. We shared affiliations with the same four universities (Cornell, Columbia, Harvard, and Rutgers). And I did have the good fortune to talk to her on occasion. I'll relate one.
Some years ago, we were on a panel together. I don't now remember the topic, but in the course of my remarks I repeated the conventional wisdom that RBG had cleverly chosen a litigation strategy of bringing to the Supreme Court claims for sex equality with male plaintiffs. Unoriginally, I said that this was clever because such cases both appealed to the then-all-male members of the Court and underscored how legal distinctions based on sex that relied on stereotypes disadvantaged everyone, regardless of their sex.
When it was her turn to speak, Justice Ginsburg corrected me. I don't have a transcript, but I remember her saying something very much like this: Michael, you know everyone says that, but it isn't true. We had plenty of female plaintiffs. It just happened that in a few of the key cases the plaintiffs happened to be men.
I was happy to be corrected and have no reason to doubt that Justice Ginsburg was accurately recounting her triumphs as a lawyer. And yet, I think she sold herself short. Her legacy includes the proposition that sex-role stereotyping--regardless of who nominally benefits--is the central evil at which the sex equality norm takes aim.
We scholars and pundits make much of the fact that Justice Anthony Kennedy, a conservative, authored all of the Court's leading gay rights cases, and that Justice Gorsuch wrote and Chief Justice Roberts joined the Court's Bostock decision this past term, finding that sexual orientation and gender identity discrimination are forms of sex discrimination. All three deserve the praise they have received for those opinions and votes. But let's not overlook what is taken for granted--that of course the liberal justices, including RBG, would vote for the LGBTQ+ plaintiffs in such cases. And they did.
Well, isn't that just what it means to be a liberal? Sure, it is now, but it wasn't always that way. Long after Stonewall, the Supreme Court, including Justices we regard as liberal, didn't see LGBTQ+ rights as continuous with other civil rights struggles. That only changed beginning in the 1980s, when four Justices dissented in Bowers v. Hardwick. It changed, I want to suggest, in no small part because of how RBG had changed the conversation. It would be another 17 years before the Court overruled Hardwick, but the groundwork had been laid much earlier.
RBG has been justly called the Thurgood Marshall of the women's rights movement. She may also rightly be called the Charles Hamilton Houston of the LGBTQ+ rights movement--as one whose initial work was crucial to what came after.
Was it all for naught? If four or more Republican Senators cannot be found to balk at the hypocritical plans of Mitch McConnell, Neil Gorsuch will become the median Justice. If Trump somehow wins re-election, that position could next be held by Brett Kavanaugh or even someone to his right. Will a Court that moves far away from Justice Ginsburg's views on abortion, affirmative action, campaign finance regulation, capital punishment, guns, and so much much more mean the end for her legacy?
No. For one thing, the Supreme Court is a lagging indicator of public opinion. On the question that mattered most to her--sex discrimination--there is unlikely to be more than a little backtracking at the margins.
More importantly, we ought not and do not measure anyone's accomplishments by the failures of their successors. We remember Marcus Aurelius as the philosopher-king. No one thinks less of him because later Roman emperors did not follow his path, much less because Rome eventually fell.
Some day the American Republic too will be no more. Maybe it will take a thousand years or perhaps it will happen on and after November 3 of the current wretched year. From the point of view of the universe, it matters hardly at all.
If, as Keynes said, in the long run we're all dead, what then, does matter? It is not my place to offer a definitive answer to a question with which the greatest minds in history have struggled. I'll conclude by saying that I've long thought the best answer is a kind of existential one that the best-lived lives exemplify. Here is how Ronald Dworkin put the point in one of his last essays: "It is important that we live well," he said, "not important just to us or to anyone else, but just important."
RBG lived well. She worked extremely hard. She served her country with courage and determination. She stood up to power on behalf of the powerless. Those of us who take inspiration from her life will do what we can to build on her accomplishments, but nothing that comes next can change or undercut what she did.