By Rowena Kosher, Co-Editor of RightsViews and student at Columbia’s School of General Studies majoring in Human Rights with a Concentration in Gender & Sexuality Studies.
On September 18, Justice Ruth Bader Ginsburg died at 87, after serving on the Supreme Court of the United States (SCOTUS) for 27 years. Ginsburg, popularly known as RBG, and in her most recent fame “The Notorious RBG,” is a feminist icon. This is for good reason—she accomplished a number of “firsts” in her lifetime and her work contributed to groundbreaking progressive legal changes, particularly regarding gender.
Ginsburg graduated top of her Columbia class and became the first woman to be appointed as full professor at Columbia Law. As Director of the ACLU’s Women’s Rights Project, she litigated over 300 sex discrimination cases before working on the D.C Court of Appeals for 13 years. Ginsburg joined SCOTUS in 1993, where she served until her death. During this time, Ginsburg rose to mainstream fame, becoming well known for her blistering dissents and constant advocacy as one of the vital liberal justices on an increasingly conservative court.
Following Ginsburg’s death, the media blew up with condolences, concerns about political implications, and articles commending Ginsburg on the successes of her career. Yet in this barrage of (justifiable) abounding praise, I couldn’t help but think about what happens when a person, a human, becomes an icon so coopted by a movement that her humanity becomes erased. In truth, Ginsburg was a person, and people are not perfect. What do we lose in this black and white thinking about legacy?
A caveat: in this article, I will offer a critical overview of Ginsburg’s legacy. In doing so, I do not intend to discredit or ignore the vastly important implications of the decisions that she made over the course of her career, particularly for women. Rather, I hope that this article presents the opportunity to, amongst our mourning and praise, also think deeply about who benefits from RBG’s legacy, and more importantly who falls to the wayside: namely poor, queer, Black and Indigenous People.
Ginsburg’s Feminism was for White Women
Ginsburg was director of the Women’s Rights Project during the height of second wave feminism, a time characterized by calls for women’s equality to men. Also known as “sameness feminism”, this camp challenges anything that could be perceived as treating women as the “lesser sex.” Ginsburg based her entire legal career on reasoning that adhered to this model. Her cases on sex discrimination followed a formula: anything that appeared to be treating a member of one sex differently from a member of the other sex was either sex discrimination, or in the case of her 1 in 4 male plaintiffs, reverse sex discrimination.
Although on face value, this version of feminism intuitively makes sense, its historical context and practical application mean that in practice, it only really benefits one group: white women. Of which, of course, Ginsburg herself was a member.
As Muqing Zhang points out in a 2019 article in The Establishment, equality to men is an easy point of view for an upper-middle class white woman to have because sexism is often the only form of discrimination that white women face. Yet, maintaining a sameness-based sex equality argument obscures, and even worsens, the experiences of, for instance, poor, Black, queer women, whose marginalizations are plural. In fact, it was the very prominence of the consistent exclusions resulting from a sameness feminist model that led to the development of Critical Race Theory.
Ginsburg’s appeal to white feminism is clear and with this in mind, Ginsburg’s popularized successes in court take on a different tone. Zhang argues that Ginsburg’s formulaic equality framework resulted in the consistent and lasting elimination of any preferential policies towards women—results that were successes for only white women. Cases such as Weinberger v Wiesenfeld (1975) and Califano v Goldfarb (1977), ended policies on federal aid that benefited women specifically. Although aligned with a white feminist model of success, eliminating preferential policies leaves the poor, queer, non-white women who rely on these programs stranded. The results of these decisions are not racist in intent, but they do say something about the challenges of her positionality as a wealthy white woman. Zhang writes, “Although it may not have been Ginsburg’s explicit intent to harm the most marginalized of women, part of the insidiousness of white feminism is that it convinces its believers that the white woman’s experience is the universal experience for all women…in the end, it is not the intent, but the devastating impact that matters.”
Ginsburg was not entirely oblivious about the challenges that she did not herself face. At her swearing-in ceremony in 1993, Ginsburg said: “A system of justice will be the richer for diversity of background and experience.” In 1994, Jerome McCristal Culp Jr. wrote and published “An Open Letter From One Black Scholar to Justice Ruth Bader Ginsburg” in which he reminded Ginsburg that diversity on the court does not automatically ensure that diverse voices are heard before the court. Further, understanding one form of oppression (gender) does not mean that one can or will understand another (race), or their intersections. “Privilege does not mean that the holder cannot hear the voices of the oppressed,” writes Culp Jr., “but it does suggest that one possessing such privilege ought to take care to examine where she is in relation to others and where she and others are going.” As with Crenshaw, Culp Jr. cites the challenges of applying an equality model to racial settings. The Equal Protection Clause of the 14th Amendment is a model that at best maintains the status quo, and at worst reinforces existing racialized inequalities.
When Ginsburg engaged with issues of race directly, it came across with mixed messages. One such example is her hiring record. At her confirmation hearing, Senator Hatch questioned Ginsburg about the fact that over her 13 years at the DC District Court, out of 57 employees, not a single one was Black. Ginsburg replied by saying, “I am going to try harder, and if you confirm me for this job, my attractiveness to Black candidates is going to improve.” Yet, over her 27 years on SCOTUS, she only hired one Black law clerk. Granted, law clerks for SCOTUS justices are notoriously white across the board—85% since 2005. However, a systemic problem is not an excuse for a lack of revision of hiring practices, and it is still disappointing to read of Ginsburg’s poor record.
Ginsburg made headlines again in 2016 for her insensitive response to Colin Kaepernick kneeling for the National Anthem as a protest to police violence and in support of Black Lives Matter. In the original interview, Ginsburg calls the protest “dumb and disrespectful” and compares it to flag burning. Ginsburg quickly apologized after massive media blowback. Although it appears that Ginsburg was taking issue more with the action of political speech that Kaepernick chose to take than with the cause he was protesting for, it’s frankly surprising that she was “unaware” of the nature of these protests and further, demonstrates a tendency in the legal world to interpret political actions along a hierarchy of value. Progressive values are structured to favor some political spaces (like campaigns) over others (like sports). And the very spaces that are favored are the spaces that are already structurally exclusionary to BIPOC. Where is the space for voices against racism when the easily accessible platforms to denounce it are valued less than the institutions that gatekeep?
In her world in the courtroom, Ginsburg didn’t stand out on cases related to race but generally sided with the other liberal justices in condemning white supremacy & racial discrimination. After all, the civil rights framework that challenges racism is the same as her well-worn equality framework for gender discrimination. For example, as an attorney, Ginsburg credited the work of Black queer civil rights attorney Pauli Murray in Reed v Reed. She authored an amicus brief for Coker v Georgia writing, “the death penalty for rape is an outgrowth of both male patriarchal views of women…and gross racial injustice created in part out of that patriarchal foundation.” Ginsburg also clearly addressed the intersections of voter suppression and race in her famous dissent, Shelby County v Holder.
She ruled in favor of several important cases regarding the rights of the incarcerated, although it is not clear that these decisions were based on her awareness of mass incarceration as an issue with disproportionate effect on BIPOC. Yet Ginsburg also supported increased barriers for prisoners seeking rights in federal courts and joined the majority in Overton v Bazzetta, upholding draconian visiting restrictions. Definitely a mixed record.
One interesting case study of Ginsburg’s lack of engagement with race is her Utah v Strieff (2016) dissent. An equal protection 4th amendment case about warrants and unlawful stops, Justice Sonya Sotomayor wrote a harsh dissent critiquing the ruling, which included what is now colloquially referred to as Sotomayor’s “Black Lives Matter Manifesto.” In this condemnation that also cited Black scholars and activists Michelle Alexander and Ta-Nehisi Coates, Sotomayor wrote “[the decision] implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.” Ginsburg signed onto all of Sotomayor’s dissent except this section. Ginsburg ruled on the liberal side, and yet stopped herself at Sotomayor’s explicit discussion of race. Why did she pass up an opportunity to use her platform as a prominent white woman in power to express solidarity with BIPOC?
Indigenous Rights: RBG’s Biggest Regret
When it comes to Indigenous Rights, Ginsburg likewise does not have a strong record of support. The legal field itself contributes to this. US law is based primarily on individual rights, a reflection of Western neoliberalism. This comes in conflict when dealing with Indigenous Peoples, whose rights are collective. Further, education about Indian Law is poor across law schools; only a few states include it on their Bar examinations. As a whole, the American legal system is rooted in the history of systemic genocide, exclusion, and erasure of American Indians. Given this, it is upsetting but not surprising that in her confirmation hearing, Ginsburg stated that “I cannot pretend to any special knowledge in this area of the law.” The Marshall Project does note that Ginsburg’s decisions on cases regarding Indian Law improved over the course of her time on the court. For example, her very last Indian Law case, McGirt v Oklahoma (2020), importantly ruled that a majority of Eastern Oklahoma is Indian Country—a landmark recognition of tribal sovereignty. However, backtracking to some of her earlier decisions, we see a number of cases where Ginsburg restricted Indian rights, such as US v Navajo Nation (2002) and Strate v A-1 Contractors (1997). Perhaps the most notorious, however, is City of Sherrill v Oneida Indian Nation of New York.
Ginsburg authored the 8-1 2005 Sherrill decision, ruling against the Oneida Indian Nation regarding their claim to tax-exempt status on traditional Oneida land which NY had acquired as the result of an illegal transaction in the 19th century, and then was repurchased by the Oneida Nation in 1997-98. Ginsburg’s reasoning rested on longstanding racist legal doctrines such as the “Doctrine of Discovery.” Ginsburg argued that the “longstanding Non-Indian character” of the land and the Oneida’s delay in seeking relief kept the tribe from “rekindling the embers of sovereignty that long ago grew cold.” This decision was heavily and rightfully critiqued.
It is clear that Ginsburg took these critiques to heart. In May of 2020 she confided in some of her clerks and peers that Sherrill was the single decision in her time at the court that she regretted the most. She paired this with a declaration of hope that the next SCOTUS nominee be a Native American woman.
What does all of this tell us? It tells us that Ginsburg made countless valuable progressive, life changing decisions that benefitted hundreds of thousands of Americans. It tells us she has the capacity for growth and critical thought and the humility to apologize. It also tells us that she made some really bad decisions, too. In other words, she wasn’t perfect. Nobody is. Legacies are complicated, and the legacy of a judge on SCOTUS even more so.
We experience a general failure to recognize Ginsburg’s complicated history because she has been elevated to icon status in the pervasive white feminist narrative. As Si’iyda Shabazz writes, “painting her as a superhero on a pedestal” by the ever-impervious white feminist umbrella means we forget (or are prevented from realizing) that at the end of the day, RBG made mistakes. Just as her successes deserve to be shouted from the rooftops, the less rosy side of her record ought to be available for critique. We can only become better citizens, better feminists, and better advocates by knowing that mourning and critical analysis are not mutually exclusive, and in fact can strengthen each other and provoke us to turn Ginsburg’s legacy into justice-oriented action.