2 years ago
Former U.S. Ambassador Swanee Hunt is a longtime supporter of women’s rights, funder of Democratic causes, and admirer of Ruth Bader Ginsburg. But she recently found it difficult to look squarely at images of Ginsburg’s face.
Hunt didn’t know the late Supreme Court justice well, but she looked up to her and everything she stood for. As ambassador to Austria during the Clinton administration, Hunt hosted the relatively new Supreme Court justice at her residence, going with her to the opera and inviting locals to a breakfast in her honor.
“I did have a huge appreciation and felt like I got a closer view,” says Hunt, who went on to serve as the founding director of the Women in Public Policy Program at Harvard’s Kennedy School. “Especially presenting her in another country as an example of an American who we were very proud of.”
At 72, and having spent a career inside circles of power, Hunt is not exactly the target demographic for the Notorious RBG gear that became ubiquitous during Ginsburg’s late-life emergence as an unlikely Millennial meme machine. But over the years, she wound up with a couple of mugs depicting the champion of women’s rights, who died in 2020.
Recently, though, Hunt decided she didn’t want to see them. With the Supreme Court poised to reverse Roe v Wade, Ginsburg’s decision not to step down during the Obama administration looms large in the estimations of some of her admirers, who see it as enabling the destruction of large parts of Ginsburg’s legacy. The unintended — but not unforeseeable — result was that Donald Trump was able to name Ginsburg’s successor, who may wind up as the fifth vote to overturn the landmark 1973 abortion-rights ruling.
“What I wanted to do was pack it away. I thought, ‘I don’t want to look at it,’” Hunt says. “I want to put it away for my children and my grandchildren. That took work. I’m 72, and if there’s something that grieves me, I want to get it out of my life. I didn’t want to see it again. It was too painful. I felt betrayed.”
That constellation of emotions has been increasingly common since POLITICO’s report this month of a draft opinion reversing Roe. Much of the wistfulness is felt not by disappointed idealist purchasers of lace-collar Halloween costumes or RBG refrigerator magnets, but by people who might have been the justice’s peers — people well established in law, politics and public service, many of whom can empathize with the complicated feelings involved in calling it quits.
“It’s certainly hard for me, now, to think of her work and of her — and not to, these days, work up a degree of regret and anger,” says Dorothy Samuels, who authored The New York Times’ legal editorials during her 30 years on the paper’s editorial board. “This is so multilayered because she cared so passionately about advancing equality for everybody. She figured out a way to get women to be part of the constitution. And yet, what she has helped to give us is a court that for a long, long time is going to be undoing the equality rulings that she was part of.”
Samuels heard the same thing from former clerks and other inner-circle members while researching a book in the years before Ginsburg’s death. “It was an extraordinarily self-centered thing to do.”
“She gambled,” says Michele Dauber, the outspoken Stanford law professor, speaking of Ginsburg’s apparent calculation that Hillary Clinton would be in the White House to appoint her successor. “But she didn’t just gamble with herself. She gambled with the rights of my daughter and my granddaughter. And unfortunately, that’s her legacy. I think it’s tragic.”
Anyone looking to hide from Ginsburg’s image will have a hard time. Nearly two years after her death, the capital, and the country, remain awash in Ginsburgiana: Murals in New York, San Antonio, Kansas City, Denver, Baltimore, San Jose and beyond; a U.S. Navy ship; a New York hospital; a new species of praying mantis. According to data from Bookscan, sales of Irin Carmon and Shana Knizhnik’s Notorious RBG — the ur-text of Ginsburg’s transformation from jurist to secular saint — appear unaffected by the draft-ruling bombshell.
Ditto the ubiquitous RBG merch. “We still carry a bunch of stuff with her image on it,” says Bradley Graham, who owns Washington’s Politics & Prose bookstore. “A cup, a doll, a candle. The sales on these kind of ebb and flow, but we haven’t detected any particular falloff. We’re still carrying them and still selling some. We just hear from some people that they’re mad at her.”
The connection between Ginsburg’s status as a pop-culture phenomenon and the choices she made about retirement, in fact, have become part of the posthumous finger-pointing. Was the cult of RBG one of the factors that propelled her to stick around instead of retiring at a politically safe moment?
“I’ve heard, before her death and after, the argument that, ‘Why have you people made her this demigod?’” says Debbie Levy, the Washington-based author of two largely laudatory children’s books about Ginsburg. “I say, maybe somebody made her a demigod, I didn’t make her a demigod. I view her, I still view her, as a great person. This idea that if by elevating her as an example, we’ve done this disservice. I would say, disservice to whom?”
The timeline also doesn’t quite work. Carmon and Knizhnik’s book only came out in 2015 — while Obama was still president, but after the Democrats had lost the Senate. The Tumblr on which it was based launched in 2013. But the first calls for Ginsburg to retire for safe-replacement reasons came before the 2012 elections, by which point the justice had already gone through bouts of colon and pancreatic cancer. Those early calls for retirement were met with Ginsburg’s very same, characteristically stubborn, refusal to heed people telling her to get out.
Still, Ginsburg’s singular cultural status today adds a certain potency to the portions of the draft opinion where Justice Samuel Alito cites Ginsburg’s own publicly stated disagreements with Roe v. Wade (she had issues with aspects of the judicial and political approach, not the result). The asides enraged Ginsburg admirers, but also point to something that the justice’s feminist critics have noted in recent weeks: that the focus on RBG obscures scores of other movement colleagues — including ones who may have had the better of her in certain arguments.
“She was very smart and very clever and very energetic, but she wasn’t the only game in town,” says Linda Hirshman, the lawyer and author of a dual biography of Ginsburg and Sandra Day O’Connor.
Another thing the societal ardor for Ginsburg has done is make criticism of her choices more fraught. In 2014, Erwin Chemerinsky, now the dean at the University of California’s law school, wrote a POLITICO column urging her to step down. “I received a very angry response, including indirectly (through others) from Justice Ginsburg,” he told me by email. Same with Dauber, who sent a number of caustic tweets about “RBG cult members” and the legacy of her choice to stay.
“Her clerks, women law professors, and women in society in general really felt that she is above criticism,” she says.
The fact is, people looking to cast blame for the rollback of abortion rights have a pretty long list of culprits before getting to Ginsburg: The justices who may write the decision, the presidents who appointed them, the GOP Senate that blocked Barack Obama’s third judicial nomination, the Democrats who didn’t pass a national abortion-rights bill when they had large majorities, the filibuster, the electoral college and on and on. You could even cite another judicial retirement decision: In 1991, Thurgood Marshall stepped down, declaring himself “old and falling apart.” Marshall wound up living until four days after Bill Clinton’s inauguration — meaning that if he’d somehow stayed put, Clarence Thomas might never have joined the Court to eventually vote down Roe.
“I find it very hard to find fault with Ruth Bader Ginsburg for any kind of sin against the women’s movement,” says Susan Estrich, the lawyer and longtime Democratic insider. “What we need to recognize is that she was there for all those years, not that she unfortunately succumbed to illness before she planned.”
“Before Ruth Ginsburg was ever on the court, she was an advocate who helped teach America about the meaning of equal protection and of gender justice,” says Reva Siegel, a Yale law professor who says her office contains a depiction of Ginsburg accompanied by the words “may her memory be a revolution.” “Another way we can understand her legacy is to look outside of the United States Supreme Court today and see the future of reproductive justice growing in state legislatures and in state courts and in the streets where a new generation of Americans is going to give new constitutional expression to liberty and equality.”
To Hirshman, whose coverage of Ginsburg was generally but not uniformly positive, the bigger issue than one person’s unwise choice is her view of why Ginsburg made the decision — a factor that’s relevant to all sorts of Washington players these days: Ginsburg’s age. Hirshman, who is 78, believes the justice had lost her “connection to the existing zeitgeist” in the country. Someone more in touch, she says, would have had a clearer understanding of the radicalism of her opponents and their willingness not to abide by old norms.
“It’s a very difficult question — should people be braying about how it’s all Ruth Bader Ginsburg’s fault?” she says. “The more interesting question is, how did we get to this point where all of these old people are making these decisions? I’m not saying that only having people in their 50s and 60s guarantees a good outcome. I’m just saying it raises the odds….You really don’t want to gamble with the fate of the most powerful Democratic republic in the world.”
In retrospect, Hirshman says, taking a gamble against actuarial odds will lead to undoing much of Ginsburg’s work. Not taking that bet, in other words, could have helped preserve that legacy: “Retiring might have made her more important than every decision she wrote on the Supreme Court.”
English (US)