DIVERSITY CORNER
The Notorious , Glorious RBG
KATHRYN LEWIS PERRIN
When Ruth Bader Ginsburg passed away in September , the country lost not only a Supreme Court justice , but a pop-culture phenomenon . Yet Justice Ginsburg was hardly a household name when she joined the Court in 1993 . How , then , did a tiny , reserved jurist , whose name and opinions were virtually unknown outside the legal world , see her fame explode exponentially over the past decade ? How did Ruth Bader Ginsburg become a social media icon , known as “ the Notorious R . B . G .?”
Much has been written about Justice Ginsburg ’ s early work , including her creative – and effective – approaches to advocating against sexist legislation . Her opinion in United States v . Virginia is required reading in almost any constitutional law class . But it wasn ’ t her past activism or even her majority opinions that catapulted her into stardom . It was her dissents – and , particularly , the way she used her dissents to remind the country that Supreme Court decisions are more than academic exercises . They have real consequences for real people , and those real people are often women and minorities .
After Justice Sandra Day O ’ Connor retired in 2005 , Justice Ginsburg found herself on a Court shifting markedly to the right , jeopardizing much of what she had worked for her entire career . She was also the only woman left on the bench . It was around that time that Justice Ginsburg ’ s writing — and her behavior — seemed to change . When the Court upheld a ban on certain late-term abortions in Gonzales v . Carhart , Justice Ginsburg passionately read her dissent aloud from the bench – an uncommon practice in 2007 , and a contrast to what one of her friends described as her usual “ ameliorative , very conscious of etiquette ” style . i
Justice Ginsburg ’ s next major dissent was in Shelby County v . Holder , which struck down provisions of the Voting Rights Act of 1965 . The Act required certain state and local governments , referred to as “ covered jurisdictions ,“ to obtain “ preclearance ” from the federal government before modifying their voting laws or practices . The Act applied the preclearance requirement to any covered jurisdiction that had historically established prerequisites to voting ( such as literacy tests or poll taxes ), and which had corresponding low voter registration or turnout . The Supreme Court held 5-4 that the preclearance formula was unconstitutional because it was based on “ decades-old date and eradicated practices .” ii The decision effectively gutted the Act , allowing covered jurisdictions to change their voting laws and practices without any federal oversight . Many of these jurisdictions quickly shuttered polling places in predominantly Black communities , iii purged voter rolls , iv and enacted other laws that would not have been possible without the ruling in Shelby .
Justice Ginsburg , writing for the minority , framed her objection to the majority ’ s logic in plain but stark terms . “ Throwing out preclearance when it has worked and is continuing to work ,” she wrote , “ is like throwing away your umbrella in a rainstorm because you are not getting wet .” v The rest of the dissent reads as a traditional legal analysis , but it was that simple analogy that spurred a young law student to crown the Justice “ the Notorious R . B . G .” and to author a blog in her honor . And as Justice Ginsburg ’ s pop-culture popularity began spreading , she authored what may be her most vehement dissent in Burwell v . Hobby Lobby Stores , vi which affirmed the right of certain corporations , citing religious reasons , to deny their employees ’ health care coverage for contraceptives . Although she meticulously rebutted the majority ’ s reasoning , perhaps it was something else that resonated with young women : the Justice ’ s simple recognition that “[ t ] he 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 .” vii Maybe scores of young women were inspired by Justice Ginsburg ’ s willingness to treat the issue at hand in Hobby Lobby not as some abstract theoretical exercise , but as a real decision with real consequences for real women .
The Hobby Lobby case cemented what
Gonzales had begun seven years earlier :
the idolization , and “ memeification ,” of Ruth Bader Ginsburg . Suddenly , t-shirts , stickers , and pins bearing the likeness of “ the Notorious R . B . G .” and her famous lace collar were everywhere . She was the subject of documentaries and late-night sketches . Even as she deteriorated physically , she was seemingly indestructible ; no hospitalization or bout of cancer could keep her out of her chambers for long or dull the sharpness of her writing , especially when she was upholding the rights of women , Black Americans , and other historically oppressed persons – and in the process , fearlessly and plaintively reminding us that there are real people on the other side of every Supreme Court opinion . For that , she became – and will remain – the Notorious R . B . G .
Kathryn Lewis Perrin practices guardianship and probate litigation with the law firm of Kitroser & Associates .
i
Lithwick , D . Justice lolz grumpycat notorious R . B . G . Slate . com ( Mar . 16 , 2015 ) ( https :// slate . com / human-interest / 2015 / 03 / notorious-r-b-g-history-the-origins-and-meaning-of-ruthbader-ginsburgs-badass-internet-meme . html ) ii
Id . at 551 . iii
Vasilogambros , M . Polling places remain a target ahead of November elections . PEW ( Sept . 4 , 2018 ) ( https :// www . pewtrusts . org / de / research-and-analysis / blogs / stateline / 2018 / 09 / 04 / polling-places-remain-a-target-aheadof-november-elections ) iv
U . S . Comm ’ n on Civil Rights . An assessment of minority voting rights access in the United States , 144-57 ( Sept . 12 , 2018 ). v
570 U . S . at 590 . vi
573 U . S . 682 ( 2014 ). vii
Id . at 741 .
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