Ruth Bader Ginsburg Isn’t Even Pretending to Be Impartial

By Ian Tuttle

Wednesday, May 20, 2015

Since there was no bride to be the “belle” at the ritzy D.C. wedding of Shakespeare Theater Company artistic director Michael Kahn and Manhattan architect Charles Mitchem this weekend, Ruth Bader Ginsburg, who officiated, was happy to play the part. And she did so with panache, says Maureen Dowd:

    The most glittering moment for the crowd came during the ceremony. With a sly look and special emphasis on the word “Constitution,” Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States. . . . The guests began applauding loudly.

For a sitting Supreme Court justice facing a case on precisely this divisive issue, her remark seems — let’s put it mildly — injudicious. But Ruth Bader Ginsburg is not just some Supreme Court Justice. She is “Notorious R.B.G.”

The coinage, a mashup of Ginsburg and murdered rapper The Notorious B.I.G. (a.k.a. Biggie Smalls), was the brainchild of then–NYU law student Shana Khiznik in 2013, shortly after Justice Ginsburg issued much-feted dissents in Fisher v. University of Texas, an affirmative-action case, and Shelby County v. Holder, a case dealing with the 1965 Voting Rights Act. Since then she has become an Internet sensation: ubiquitous meme, Halloween costume for infants, arm tat, the likeliest candidate on the Supreme Court to be made into an ice-cream flavor. In February, U.S. News & World Report recalled how Ginsburg drank before the 2015 State of the Union (!), once rode an elephant (!!), and another time went parasailing (!!@#$%!!!) — all dredged up “just in case you need more reasons to love Notorious RBG.”

I’m good, thanks.

Cults are a fixture of American political life — the current president, recall, framed himself with a mock Greek temple in 2008 — but outside the halls of law schools, cults of personality have tended not to form around Supreme Court justices. The arrangement of the judicial system is supposed to favor impartiality, which is a virtue that does not lend itself to popular acclaim. Few people actually want objectivity in a judge; they want a judge who will side with them.

Which is why Ginsburg has occasioned such celebration. This weekend was not the first time Ginsburg has spoken less than discreetly about a hot-button issue. When she criticized Roe v. Wade at the University of Chicago in 2013, it was not because of anything the decision had or had not done; it was because it “stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures.” “It seemed to stop the momentum” toward the reduction of abortion restrictions, she lamented.

When the feminist outlet Jezebel reported this remark, it worried in passing that Ginsburg might be “hesitant to pass anything broad-sweeping when it comes to marriage equality rulings.” Precious. Not only is Ginsburg the go-to justice for same-sex-wedding officiating, but she is currently featured in advertisements by the Human Rights Campaign. “Supreme Court Justice Ruth Bader Ginsberg [sic] agrees Americans are ready for marriage equality,” the ad declares.

For Ginsburg, the law is an instrument toward political ends. When she declared in her 1993 confirmation hearing that her reading of the Constitution relied on “the climate of the age,” she was offering not an interpretive rule, but a political one. The jurist who thinks there are “populations that we don’t want to have too many of” (three cheers for Roe for helping out with that!) is really just waiting for the climate of the age to catch up with her fevered pursuit of justice. Someday we yokels will see that a good eugenics program is just what we need.

The acclaim for Ginsburg’s distinguished legal career is, then, really acclaim for her unorthodox political career. Go back to those dissents. If you read reports from left-wing media, Ginsburg is the Jon Stewart of Supreme Court opinions: her dissents are “ferocious,” “withering,” “blistering,” “barbequing,” and (my personal favorite) “disemboweling.” Justice Scalia, eat your heart out!

But Ginsburg gets her dissents made into songs not because they actually eviscerate opponents’ arguments, but because she is already an icon. The whole arrangement is backwards, to wit: She is not a feminist hero because she is (in the words of Rebecca Traister, writing at The New Republic) “bone-crushingly robust yet simultaneously appealing”; she is “bone-crushingly robust yet simultaneously appealing” because she is a feminist hero.

Without seeking to eviscerate Justice Ginsburg’s career — which ought not to be done; she has won victories aplenty for the rule of law, too — the source of Ginsburg-mania is the source of the fandom for every recent feminist political icon: a specific, highly partisan vision of modern Western womanhood. That is clear from Traister’s treatment of the “Notorious R.B.G.” trend: “Images and hashtags and scraps of lyrics [are used] to invert old prejudices about vulnerability and maternity and femininity into embodiments of brawn and might” — embodiments that include, in Traister’s reckoning, not only Ginsburg but Hillary Clinton, Michelle Obama, Elizabeth Warren, and Wendy Davis (remember her?).

Notice any similarities among those women?

The vision of womanhood that celebrates Ginsburg, Clinton, et al. has no place for Kristi Noem, Nikki Haley, Susana Martinez, or Kelly Ayotte. The “crucial expansion of the American imagination with regard to powerful women” is so expansive that it can encompass Laverne Cox — but not Carly Fiorina.

“The Notorious R.B.G.” is not the beneficiary of a grand expansion of imagination, a leap to a higher plane of Being. She is the result of an ideology of womanhood that has been militantly enforced on American politics and culture over the past half-century, not by latter-day Susan B. Anthonys but by knockoff Betty Friedans. Ruth Bader Ginsburg’s own service has been to impose that ideology on the law not from a seat in the legislature, but from her perch on the judges’ bench. By doing so, she has helped to legitimize the reduction of the Constitution and the entire judicial apparatus to an instrument for political gain, and to enshrine a vision of modern womanhood that cheerfully eviscerates any woman who believes otherwise. The Left thinks that is something to be celebrated?

I dissent.