Excerpt: "The 86-year-old justice can't live forever, and it increasingly looks like women's freedoms won't either."
Ruth Bader Ginsburg. (photo: AP)
28 August 19
The 86-year-old justice can’t live forever, and it increasingly looks like women’s freedoms won’t either
ou can find her face on enamel pins, tote bags, posters, and greetings cards. She stares at you from T-shirts, from stickers, from stationery, from inside embroidery hoops, her face rendered in tiny squares of thread. She is shown stern faced, eyes impenetrable behind her oversize glasses; or with the tiny smile of someone who knows a secret. Sometimes she is shown with a toy crown on her small head, cocked slightly askew in reference to a famous photo of the Brooklyn rapper Biggie Smalls. Underneath, the word “Notorious”.
These tributes have come under ridicule and rebuke, often by men, as an argument arises on the American left that Ruth Bader Ginsburg, 86, should retire from the US supreme court – or, preferably, should have retired during the Obama administration. Ginsberg has pancreatic cancer, Americans learned this week, and it’s not the first time recently the court has made announcements about her health. In November 2018, she fell and broke three ribs. When she had a CT scan for that injury, it was discovered that there was cancer on her lungs. She had surgery and went back to work. It’s what she’s done for years: the first time she was diagnosed with cancer was 20 years ago, in 1999.
The cult of personality that has sprung up around Ginsburg, making her a hero to liberal American women and a beloved figure of pop culture lionization, has something to do with how much she has endured on the bench, how much she has suffered to be there, and her tenacious, implacable refusal to step down and retire in the face of her illness. It has something to do, too, with the content of her career and her public statements, in which she has advocated strongly for women’s place in public life and for their full and equal citizenship. Before the court, in her career as a lawyer, legal academic, and activist, she worked to extend the 14th amendment and the Civil Rights Act to women; she was founder of the ACLU’s women’s rights project and an ardent opponent of laws that sought to treat women as lesser than men. With the possible exception of Catharine MacKinnon, no legal mind has been so influential on the subject of gender.
Since she was appointed to the court by Bill Clinton, Ginsburg has been a vote to protect the increasingly besieged rights to abortion, to contraception, and to anti-discrimination laws that extend women sex-based protections. This has been the central belief of her career, a belief that is less popular and more heatedly endangered than it once was: that women are subjects of American democracy just as men are, and that they should be as free as men are. “I’m sometimes asked when there will be enough,” she once said, referring to a question she gets with some frequency about the number of women on the supreme court (there are currently three). “And I say, ‘When there are nine.’”
On the symbolic level, the drama of her fight to remain on the bench is the drama of women in American democracy. Many people do not want her there, and are eager for her to leave; dark and unremitting forces are at work to remove her. But she stays. In a recent interview with NPR’s Nina Totenberg, she spoke defiantly of her own endurance. “There was a senator, I think it was after my pancreatic cancer” – Ginsburg has had pancreatic cancer once before – “who announced with great glee that I was going to be dead within six months. That senator, whose name I have forgotten, is now himself dead. And I am very much alive.”
Ginsburg’s perseverance in the face of her own pain and enemies’ eager anticipation of her death is what has made her a beacon, ripe for idolization and symbolism by American women. After all, women’s rights and citizenship is in as precarious and endangered position as Ginsburg’s health. The Trump administration has effectively gutted the title X federal family planning program, and six states have only one abortion clinic remaining.
The Trump administration supports religious exemptions to the Affordable Care Act’s contraception coverage mandate, and those exemptions are likely to be so broadly defined as to essentially make the mandate moot. Sexual harassment persists in public and in the workplace, and a massive conservative movement, led by organizations like the Federalist Society and assisted by the calculating dishonesty of Senate majority leader Mitch McConnell, has conspired to transform the judicial branch of the federal government into an activist force of reaction.
The White House is occupied by a man who has bragged about committing sexual assault and been credibly accused of rape, and the last supreme court vacancy was filled by Brett Kavanaugh, a beer-drinking rightwinger who has been multiply accused of sexual assault and who seems eager, along with his conservative colleagues, to strike down Roe v Wade. Meanwhile, the 2005 case Castle Rock v Gonzales ruled that women have no affirmative right to protection from domestic violence from the police, not even if they have a restraining order against their abusive partner – a case that some legal scholars argue effectively ended the extension of the 14th amendment’s equal protection clause to women. Ginsburg herself dissented in that case, along with Justice Stephens, but she was in the minority. She usually is.
What does it mean when one ageing jurist comes to represent the political participation of an entire sex? What does it mean when that one ageing jurist seems frailer and sicker than ever before, just as the forces of misogyny are emboldened and ready to restrict women’s rights? No one who has spent much time thinking about Ginsburg can doubt her resolve, and her commitment to the principle of women’s full citizenship seems as steadfast and uncompromising as ever. But she is very sick, and one day she will retire, or die. American women may learn that making one woman a symbol of their citizenship rights was as unsustainable an idea of having just nine people appointed to protect those rights. Ginsburg can’t live forever, and it increasingly looks like women’s freedoms won’t, either.
