When the cult of Supreme Court Justice Ruth Bader Ginsburg first surfaced five years ago, it felt light-hearted and fresh: an irresistible mix of buttoned-up legal geekery with punchy Internet humor. Each time Ginsburg issued a dissent, social media lit up with memes of her now-iconic beaded jabot and a cocked crown under the sobriquet “Notorious RBG.” The bespectacled 5’1″ Jewish grandmother was refashioned in the image of 300-pound rap legend Notorious BIG as a testament to her formidable legal mind.
Lately, though, the fawning over Ginsburg has taken on a cloying aftertaste. In the opening scene of the new Ginsburg biopic, “On the Basis of Sex, a sea of white men in indistinguishable dark suits gives way to a wide-eyed, red-lipped Felicity Jones, her hair in soft waves bouncing against her periwinkle skirt suit. The message is clear, if heavy-handed: Ginsburg is a singular feminine force in the once male-dominated legal elite. The more wide-ranging but equally exultant 2018 documentary RBG likewise paints her as peerless.
The pop-culture phenomenon of Ginsburg includes Saturday Night Live sketches and operas, along with a landscape of merchandise so vast it would give Marie Kondo a headache. The fascination is premised on Ginsburg as outspoken objector, a living icon in the twilight years of her life. There are dissent-themed necklaces, T-shirts, children’s books, and the RBG documentary’s tagline is: “Hero. Icon. Dissenter.”
Her health scares—which she’s had an unfortunate share of lately—have prompted a clockwork cycle of liberal hyperventilating over her mortality. Of course the future ideological balance of the Supreme Court is worrisome—but need the news items really be followed by semi-delusional braggadocio over her senior-citizen workouts?
This isn’t to downplay Ginsburg’s formidable career. As the co-founder of the Women’s Rights Project at the American Civil Liberties Union, she did truly shrewd, visionary, and game-changing work in dismantling a vast network of laws that discriminated “on the basis of sex,” including successfully arguing four cases in front of the Supreme Court.
But the hyperbole her fan club spreads helps no one. Their prevailing narrative—that frames Ginsburg as a dissenter with a capital D—isn’t just inflated: It obscures the contributions of those that were and are more active dissenters, and in particular, radical women of color.
It was in 2013 that Ginsburg broke out as the Supreme Court’s most popular voice of objection. She read her dissent on Shelby County v. Holder, which gutted the Voting Rights Act, out loud in court—a rare and righteous act, but one she has taken to more as the Court has swung rightward. The decision, which Representative John Lewis called “a dagger in the heart of the” VRA, shocked civil-rights activists, and in Ginsburg’s dissent, the bereaved found a vessel for their outrage.
Overnight, the soft-spoken centrist jurist was reborn as iconic liberal firebrand, and ensuing dissents, including Schuette v. Coalition and Burwell v. Hobby Lobby, secured her position in the liberal hall of fame. Still, standing up for voting rights is hardly, at this juncture and with the preponderance of evidence, progressive. It is the bare minimum we should demand in a democracy.
Her fans have cherry-picked a handful of dissents and superimposed their idol’s rightfully celebrated achievements as a young litigator onto her body of work as a much more cautious Supreme Court justice. “On or off the bench, she has always been steadfast, and when the work is justice, she has every intention to see it to the end,” Notorious RBG, a chirpy millennial-oriented biography with scrapbook pastiche, declares.
This isn’t quite the full story. In a draft of her Bush v. Gore dissent, Ginsburg alluded to possible black-voter suppression in Florida, which sent Justice Scalia into a rage, accusing her of using provocative “Al Sharpton tactics.” In a move that could hardly be described as steadfast, she acquiesced to Scalia and removed the footnote. Ginsburg’s moderation was never exactly a secret. “On the bench, she’s been restrained and nonideological, showing little of the passion that so fueled her earlier work,” wrote Newsweek when she was nominated to the Supreme Court.
As many liberal lawyers and court observers have pointed out, Ginsburg has a mixed record on one of the most pressing and newly understood civil-rights issues of our day: criminal justice. She wrote the majority opinion on McCoy v. Louisiana affirming that the Sixth Amendment guarantees that criminal defendants have the right to maintain their innocence at trial even against their counsel’s advisement.
But as David Kinder catalogues in Current Affairs, Ginsburg did not take the “fierce” position on any number of cases on police authority, including joining Justice Anthony Kennedy’s concurrence on Davis v. Ayala characterizing solitary confinement as potentially unconstitutional.
“Sorry, Notorious R.B.G. groupies,” wrote Mark Joseph Stern in Slate about a case on unreasonable force. “Justice Ruth Bader Ginsburg…has a bit of a law-and-order streak.” It was Justice Sonia Sotomayor, not Ginsburg, who issued the fiery dissent, but without the social-media fanfare that usually accompanies those of her more famous colleague. “When it comes to understanding the systemic flaws and violent behavior of America’s criminal justice system, there’s no one quite like Justice Sonia Sotomayor,” Stern writes. You wouldn’t know that by surveying the mountain of Ginsburg merchandise hailing her—and only her—as liberal savior.
Ginsburg, it turns out, is safe packaging for liberal causes. She has spoken about the importance of being “a lady” and always conducting herself “civilly,” never letting emotions “like anger or envy get in your way.” Unlike, say, a Black Lives Matters protester, the diminutive Ginsburg, noted lover of opera, lace gloves, and scrunchies, does not read as threatening to a good portion of the population. Much like Gloria Steinem, another feminist whose iconography could be attributed in part to her looks, she was a beauty in her day, as evidenced by the young portraits her fans like to circulate, and still takes care in her dress, which is elegant and pleasantly feminine.
Ginsburg’s enviable 56-year marriage to Martin “Marty” Ginsburg, played by the hunky Arnie Hammer in On the Basis of Sex, was unconventional in ways that now seem adorably quaint: He shared domestic duties and supported her career, including lobbying to get her name on Supreme Court short list.
It’s easy to see why young feminists and law students might be thrilled by the symbology of a stylish, female Supreme Court justice with an impeccable academic record and a doting husband who cooked her dinner. Beautiful, brilliant, and accomplished, she really did seem to have it all, and today, none of that is controversial.
Ginsburg’s extraordinary life certainly has a cinematic quality. But so does that of Pauli Murray, a brilliant black female lawyer whose law-review article arguing that the Equal Protection Clause in the 14th Amendment applies to women was later used by Ginsburg. An orphan, who taught herself to read at age 5, Murray was the first African American to receive a JD from Yale Law School and laid some of the theoretical legal groundwork for both the women’s-rights and civil-rights movements. She helped Betty Friedan found the National Organization for Women, socialized with Langston Hughes, Eleanor Roosevelt, and James Baldwin, and later became a poet and Episcopal priest.
Unlike Ginsburg, she actually was an activist, starting as a child when she refused to ride segregated streetcars and later was arrested for sitting in the front of the bus. But no movies or mugs bear her visage, and she is very far from being a household name. The RBG cultists don’t help: In their heroine-worship, they end up erasing those women of color, who may not fit any conventional feminine standards, and their righteous, often more brave contributions to the cause.
To her great credit, Ginsburg herself insisted on naming both Murray and another feminist lawyer, Dorothy Kenyon, in one of her landmark briefs to acknowledge that her work built on theirs. But the filmmakers of On the Basis of Sex reduced Murray’s role to a moot-court cameo, while Kenyon, played by Kathy Bates, is a recurring presence and portrayed as the only predecessor for Ginsburg’s legal theory, including a made-up interaction that never happened in real life. The movie separates the civil-rights cause from that of women’s rights, eliding the fact that there were women whose daily lives were affected by both and framing the legal advancement of gender equality as one intellectually pioneered by white women.
Ginsburg has pronounced that “real change, enduring change, happens one step at a time.” That is a partial truth. There have been times when white-glove incrementalist steps have pushed social movements forward, and others when bolder, angrier, and unladylike action was required—although that kind of revolutionary striding doesn’t win anyone the mass approval of contemporaries.
In the end, Ginsburg’s most controversial decision may turn out to be one not delivered in court, but her decision to stay on it altogether, potentially endangering the court’s political makeup for a generation. For years, liberal commentators have battled over her decision not to retire under President Barack Obama when he could have named a successor—now, with the radical right-wing Federalist Society screening judicial appointments and a Senate leaning rightward, this seems hopelessly naive.
Ginsburg has maintained that she will continue working “as long as I can do the job full steam.” Her supporters have characterized Ginsburg’s high-minded detachment from the political realities of judicial appointments as some kind of admirable quality. Her more conservative colleagues certainly don’t ascribe to these lofty notions of the hallowed Supreme Court as an apolitical entity. Justice Anthony Kennedy reportedly even negotiated the timing of his retirement with Trump officials to secure a suitable replacement: former clerk Brett Kavanaugh.
“I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one,” former New York Times Supreme Court correspondent Linda Greenhouse told Slate. “I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons.” That doesn’t quite seem all that bold.