Sisters in Law (37 page)

Pretending to believe lies, Ginsburg says, is the shame of the legal profession: “Or as a legendary critic of lawyers put it, ‘If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind . . .' Only that kind of legal mind
could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

As she had said repeatedly (were they never going to learn?), there is no need to obfuscate, because affirmative action is not unconstitutional: “I have several times explained why government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,' the legacy of ‘centuries of law-sanctioned inequality.'”

There is a certain irony in Justice Ginsburg being the speaker for the constitutionality of affirmative action. On a superficial level, laws that helped women, such as bigger Social Security benefits, which she had challenged in the '70s, might also be framed as affirmative action. The difference was that the laws she challenged in her litigation years, such as excusing women from jury service, often concealed their repressive effect with a seductive guise of beneficence. As she always said, it took some hard looking to distinguish the cage of being stereotyped as dependent from the gilt of more benefits.

By contrast, she early recognized that affirmative action had a proper place in realizing the equality principle, not “to confer favors” but to “ensure that women with the capacity to do the job are set on a par with men of a similar capacity.” Above all, she was clear that unlike the protective laws for women, programs that looked like they benefited black people, such as giving them extra consideration in college admissions, usually actually benefited them rather than being designed to keep them in a place created by rabid historical injustice. The legacy of history was always prominent in Ginsburg's analysis.

The vote for obfuscation, professional misbehavior, and constitutional error in
Fisher
was 7–1. But she was not talking to her brethren. She was talking to the future.

The next day she got up and did it again.

On Tuesday, June 25, Chief Justice Roberts announced that the section of the Voting Rights Act of 1965 requiring states such as Alabama to check with the Justice Department when tinkering with their election laws—a process called “preclearance”—was
unconstitutional. After all, look at how many African Americans are voting in Alabama now, he crowed. Surely it was no longer rational—and therefore unconstitutional—for Congress to refuse to release those southern states long targeted by the feds.

Ginsburg dissented. After a long and harrowing recitation of the endlessly resourceful campaigns to keep black people from voting, the most recent example being from Alabama in 2010, she concluded: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

It was June 2013. She put her dissent in a bottle and floated it to an unknown Court to come.

A second-year law student at NYU, Shana Knizhnik, thought the author of the dissent in
Shelby County v. Holder
deserved something a little more up to date than a headline in
The
New York Times
. Starting with her sarcastic throwaway line during the oral argument in the gay marriage case (“there's full marriage and then there's sort of skim milk marriage?”) earlier that spring, Justice Ginsburg was becoming, well, notorious, for her take-no-prisoners rhetoric on behalf of the marginalized and excluded. Sort of like the late rap singer Christopher George LaTore Wallace, a tall, heavy guy who performed under the name of Notorious B.I.G. Like RBG, B.I.G., too, was born in Brooklyn and was an outstanding student before he became Notorious.

Knizhnik had seen the Web phenomenon
Texts from Hillary
transform the sixty-something diplomat with the pastel pantsuits into a shades-and-smart-phone boss lady with thousands of followers. The day Ginsburg delivered her dissent in
Holder
, Knizhnik opened a page on the Internet blogging site Tumblr:
Notorious R.B.G.

Her first post was the umbrella line from the dissent in
Holder.
But of course, once she got going the hits just kept on coming: ostriches from the dissent in
Fisher v. University of Texas
; her colleagues' self-fulfilling prophecy that re-counts wouldn't work from the dissent in
Bush v. Gore
; the YouTube video from Ginsburg's appearance with Diane Sawyer, where she suggested that nine would be a nice number for female justices
.
Before the day was out the first T-shirt appeared, a conventional image of the justice
in her robe with the frilly collar. Twenty-four hours later, a Notorious T. Then a picture of her with the BIG crown and sparkly stars. The day after that,
New York
magazine's “The Cut” reported that Ginsburg had joined Beyoncé and Hillary as an Internet phenom. Before a week was out, the trend spotter BuzzFeed was on it: “19 Reasons Ruth Bader Ginsburg Is Your Favorite Supreme Court Justice—R.B.G. is a complete and total boss. Plain and simple.” Bluewater Comics published a Ginsburg volume in its comic book series
Female Force
.

And so the year went by. There was an entry for every holiday. The annual Halloween contest in the gossipy website
Above the Law
displayed R Baby Ginsburg in its crib with a white lace collar around a black robe, a tiny pair of round glasses, and a gavel where the rattle would normally be.

And Christmas witnessed the birth of Ruth Slayder Ginsburg, superhero with a judicial robe cape and a white jabot. You violated the Fifth Amendment, the RBG Valentine proclaimed in February, when you took my heart without due process.

Justice Ginsburg knew right away that she was Notorious. Her clerk Josh Johnson's wife saw the Tumblr page as soon as it went up and the clerks took it to the justice. Once her law clerks explained who Notorious had been, she was all over it.

When an old Ginsburg friend, Janet Benshoof, heard about it over at the women's rights organization Global Justice Center, she told her interns they should make a rap video, and she would send it to the justice. They decided to use Notorious B.I.G.'s insurgent song “Juicy” as their model. The brainy girls Kelly Cosby and Elizabeth Gavin set about learning everything they could about the justice, including some fairly obscure stuff such as her encounter with Dean Erwin Griswold and her wardrobe of symbolic collars. Gavin had a friend who did sound recording and knew a guy who actually made and edited music videos. The kids closed the Global Justice Center for a day, and everyone pitched in.

Where Notorious B.I.G. had dedicated his work “to all the teachers that told me I'd never amount to nothin',” “RBGuicy,” performed by two tea-sipping brunettes, Kelly Cosby and Beth
Gavin, in RBG T-shirts, sunglasses, and jeweled collars, is dedicated

           
to all the judges that told me I'd never amount to nothin' because of my gender, to all the people that lived in their ivory towers that I was hustlin' in front of,

               
that tried to buy me off by putting Susan B. Anthony on the dollar,

               
and all the women in the struggle, you know what I'm sayin'?

Ginsburg loved the attention. In the reception area for the New York City Bar Association's annual Ruth Bader Ginsburg Distinguished Lecture on Women and the Law, where she was going to introduce the speaker, Justice Kagan, the rap song was playing on a giant video screen. Ginsburg admitted to Janet Benshoof that she watches it when she's feeling down.

NO TRUTH WITHOUT RUTH

Many justices dissented. But Justice Ginsburg was the only dissenter in history who had a rap song. The RBGuicy raps, “Now I'm in the limelight cuz I decide right.” The law students who turned her into a cultural icon were not just enamored of her lace gloves. They put her in the limelight, as the rap song went, cuz they thought she decided right. At a moment when the Court was firmly in the grip of a conservative majority, the eruption of support for the tiny old rich grandmother with the radical principles was a political act, even though in 2013 she was losing on almost every issue she cared about.

Changing the culture on subjects such as affirmative action, defendants' rights, and employment discrimination is an agonizingly long process. That process depends in turn on the election of a president and a Senate inclined to seek appointments of a different mind-set. Before that can happen, the minds of people likely to seek office and the voters who elect them must change. But it's no
wonder that sixty years elapsed after Justice Harlan warned his brethren that separate could never be equal before the Court ordered desegregation in 1954.

Dissents are the seeds of that process. The dissent is made for the Internet: it is inherently confrontational. Armed with life tenure and disinclined by nature to try to patch together a centrist compromise, Justice Ginsburg repeatedly produced radically confrontational rhetoric directed at her retrograde male colleagues. Listening to her flay them with her logic made the viewer feel genuinely empowered. In the demographics of the Supreme Court even the visuals—the three women and their male ally, Justice Breyer, on one side and five male conservatives on the other—work perfectly.

In any story of power in the twenty-first century, the power of the Internet to make social change is the wild card. The creator of the Notorious R.B.G. phenomenon is gay as well as liberal. (The individuals behind
Texts from Hillary
are also gay.) And no social movement in America has made better use of social media than the gay revolution. Ruth Bader Ginsburg's emergence as a cultural icon actually started in the spring of 2013 with her indignant interrogation of the lawyer for the Republican Congress defending the antigay Defense of Marriage Act about real marriage and skim milk marriage. That summer she became the first Supreme Court justice to perform a same-sex marriage ceremony. And she was well aware of the message her decision conveyed. “She wasn't saying there was a constitutional right to marriage,” her clerk Josh Johnson says. “Washington, D.C., had already made that decision. They were entitled to be married. But she was clear on how her actions would play in the public realm.”

THE DISSENT AS ARIA

A year after she went viral on the Web, Ginsburg issued her most potent dissent, disagreeing with the stunningly antiwoman decision allowing employers to exclude birth control from their health insurance,
Burwell v. Hobby Lobby.
Ginsburg's dissent in
Hobby
Lobby
is a veritable “Se vuol ballare,” the incendiary aria that Mozart penned for the upstart servant Figaro in his opera
The Marriage of Figaro
just before the French Revolution. Like Figaro, Ginsburg reminds the men in power, the majority, that they may now hold the power, but, as Figaro says, in time: “If you want to dance, my dear little Count, / It is I who will call the tune, / If you'll come to my school, / I'll teach you how to caper!”

The majority had ruled that the billion-dollar Hobby Lobby craft store chain did not have to cover contraception for its female employees under the federal health-care law. Some contraception, such as the widely used IUD, struck the owners as somewhat like an early abortion and thus violated their sincerely held religious beliefs. Despite its grounding in disputes about religious freedom,
Hobby Lobby
was not a First Amendment case. Rather, the Court held, it was applying the Religious Freedom Restoration Act, a 1993 federal law, which mandates that “government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.” To exempt Hobby Lobby from the health-care law, the Court had to take some pretty bold steps. First, it found that profit-making corporations, just like real human beings, could be “persons” who had religion. Then it found that although women's health, including their contraceptive needs, might be a serious-enough matter to warrant restricting religion, the United States had not shown that the health-care law was the least restrictive means to protect that interest. Maybe the insurance companies Hobby Lobby used could just pay for the women's IUDs, Justice Alito suggested. Or the government itself, if it was so interested in women. Maybe in the form of a tax credit. Some of these oblique approaches were already being used by churches, which had gotten an opt out.

Ginsburg dissented. The Hobby Lobby owners' sincerely held religious beliefs were too attenuated from the use of contraception to be harmed by the health-care law's requirements. After all, “the decisions whether to claim benefits under the plans are made not by Hobby Lobby . . . but by the covered employees. . . . Should an employee . . . share the religious beliefs of the [owners], she is of
course under no compulsion to use the contraceptives in question.” Even if the Hobby Lobby folks were properly upset, she continues, there is no viable less restrictive scheme. Hobby Lobby and the other health-care resisters refused to concede that they'd be satisfied with letting their insurers cover the dreaded birth control methods indirectly, the deal Congress gave to churches. Resistance to that accommodation for the churches was, at the time, already making its way to the Supreme Court. With nothing left but letting the government pay for Hobby Lobby's belief system, she concludes, the health-care law was not set up to dump the uninsured employees of religious hobby store chains onto the public fisc. It's cumbersome, expensive, and not fair to other employers.

But none of this was the real point of Ginsburg's pointed dissent. She was fighting the latest battle of her lifetime war to have women treated the same as any other social group. Although both Justice Alito, for the Court, and Kennedy, concurring,
say
they recognize women's health as a compelling government interest, in fact, Hobby Lobby carves out a special exemption from the health-care law for those who object to benefits for women. And nothing else. Ginsburg calls the majority on it in graphic terms: “Where is the stopping point to the ‘let the government pay' alternative? Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage,” she asks, citing the cases where exactly those arguments were made (and rejected). Why, a religious organization even tried to use its beliefs to get out of according women equal pay for substantially similar work.

“Would the exemption,” she asks, that the Court extends to “employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?”

On these issues which do not harm women exclusively, she
notes, “The Court . . . sees nothing to worry about.” The Court expressly said that its “decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” What is this, the reader can hear her saying, a one-off that allows the Court just to punish women?

Jonathan Mann, the Internet song-a-day guy, promptly turned the opera-loving feminist's great dissent into a song, uploaded it to the
Notorious
site, and broadcast it over YouTube.

GINSBURG AND KENNEDY

The long confrontation between Ginsburg and Kennedy over the emancipation of women is always on the table. In
Hobby Lobby
, the majority said it took women's health as a compelling interest. Kennedy, making the crucial fifth vote, was at pains to describe the government's compelling interest in providing insurance coverage for birth control on the grounds that “There are many medical conditions for which pregnancy is contraindicated.” Ginsburg's dissent makes clear the universe of difference between Kennedy's concern for women with, for example, severe heart disease and the real reason contraception matters to women: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” she wrote, quoting Kennedy's own opinion in
Planned Parenthood of Southeastern Pa. v. Casey
. “Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women's needs.”