How Ginsburg Went From Equality Trailblazer to #NotoriousRBG

(Bloomberg Businessweek) -- When Ruth Bader Ginsburg began making the case for gender equality in the 1970s, she was anything but notorious. The page 10 New York Times story announcing her victory in the first case she argued before the Supreme Court didn’t even mention her name. It wasn’t until four decades later that she morphed into “the Notorious RBG,” a rock star in black robes, a role model for women and girls, and a cultural icon. How this happened says something about celebrity in the internet era, but it also underscores some essential aspects of a remarkable career devoted to promoting equality—one that ended on Sept. 18 when Ginsburg died at the age of 87.

Already in her ninth decade when fame found her, Ginsburg went viral. Little girls dressed up like the justice on Halloween. Young women got RBG tattoos. Her public appearances drew cheering standing-room-only crowds. RBG, an Academy Award-nominated 2018 documentary co-directed by one of us (Julie), and On the Basis of Sex, a 2018 feature film starring Felicity Jones, offered examinations of her life. Comic actress Kate McKinnon performed her own amped-up take on Ginsburg as a trash-talking, sexy-dancing motormouth in a recurring skit on Saturday Night Live.

All of this marked a big change for Ginsburg, who, even after joining the Supreme Court in 1993, remained relatively obscure outside legal circles. One of us (Paul), a former Supreme Court correspondent for the Wall Street Journal, can recall a dinner in 1995 with Ginsburg and her late husband, Martin Ginsburg, during which the justice spoke of the importance of the court’s doing its business out of the public’s eye.

The celebrification of a jurist who in reality was soft-spoken and deliberate in manner can be traced to her role in an important 2013 voting rights case called Shelby County v. Holder. By a 5-4 vote, the Supreme Court’s conservative majority struck down as unconstitutional a part of the Voting Rights Act that required federal “preclearance” of changes to election procedures in certain states and counties—including Shelby County, Ala.—with a history of denying racial minorities the right to vote.

Ginsburg, the most senior member of the high court’s outnumbered liberal wing, dissented with an unmistakable vehemence, particularly to the majority’s premise that preclearance was no longer justifiable because the jurisdictions in question don’t discriminate as they once had. She wrote: “Throwing away preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

“She was angry, and I was feeling that anger with her,” Shana Knizhnik, then a law student at New York University, recalled in an interview for the documentary RBG. A classmate came up with the hashtag #NotoriousRBG, a play on the stage name of rapper Notorious B.I.G. Knizhnik set up a Tumblr account called Notorious RBG, filled it with images of the justice and best-of passages from her legal writings, and watched it take off. “I just thought it was an amazing sort of juxtaposition between this quiet, demure, traditionally feminine woman who at the same time packed such a punch with her words,” Knizhnik said.

Ginsburg, it turned out, was in the midst of writing a series of dissents from conservative rulings in cases involving such topics as affirmative action and reproductive rights—issues that continue to reverberate in the debate over the progress (or lack of it) in America’s pursuit of equality. These dissents fired liberal imaginations and inspired a profusion of heavily trafficked internet memes, including one featuring a portrait of Ginsburg with a Jean-Michel Basquiat crown on her head and the words, “You can’t spell truth without Ruth.”

As her visage and reputation spread online, Ginsburg surfaced in February 2015 on Saturday Night Live via McKinnon’s affectionate antics. Later that year, HarperCollins published a playful but substantive book by Knizhnik and fellow millennial Irin Carmon, a journalist. Notorious RBG: The Life and Times of Ruth Bader Ginsburg became a New York Times bestseller. Ginsburg-themed merchandise proliferated, ranging from bobblehead dolls to knockoffs of her “dissent collar,” a spiky necklacelike accessory she wore on the bench on days she was releasing a dissent.

The justice began to overcome her reticence, making more public appearances, especially at colleges and law schools. A former law professor at Rutgers University and Columbia, she saw this engagement in educational terms. Ginsburg discussed the role of the Constitution in American life, the struggles of 19th century women seeking admission to the bar, and the importance of the 14th Amendment’s guarantee of “equal protection of the laws”—not topics known to provoke a frenzy among young listeners. She also entertained her audiences with what became a series of well-polished applause lines, including that she’d reached her mid-80s only to find that “everyone wants to take a picture with me.”

In July 2016, in the midst of a bitterly fought presidential campaign, Ginsburg violated judicial custom to criticize then-candidate Donald Trump in press interviews. In one, she called him “a faker” who’d “gotten away” with refusing to release his tax returns. In another, she said she couldn’t imagine the country with Trump as president.

Her on-the-record candor brought sharp criticism from lawyers, judges, and scholars. Ginsburg herself soon apologized. “On reflection, my recent remarks in response to press inquiries were ill-advised, and I regret making them,” she said in a written statement. “In the future, I will be more circumspect.”

Ginsburg may have misstepped in terms of judicial etiquette, but the episode only fueled more fervent devotion from her liberal, Trump-loathing fans. That devotion intensified when Trump defeated Hillary Clinton in November 2016, winning not just the White House but also the authority to nominate members of the Supreme Court. Trump has used his authority twice so far—and now is in a position to do so again to fill Ginsburg’s empty seat.

At the risk of immodesty, we’ll observe that the documentary RBG, which Julie directed and produced with her filmmaking partner, Betsy West, helped amplify Ginsburg mania when the movie became a surprise box office hit in 2018 and was nominated for two Oscars, including Best Documentary Feature. RBG looked at the justice’s tenure on the bench, of course, but also focused on less-well-known aspects of her life. These included her years as a pioneering courtroom advocate for women’s rights in the 1970s and her unusually equitable marriage to Marty, whom she met while they were college students at Cornell in the ’50s.

A sizable chunk of the RBG T-shirt wearers and meme sharers were unaware of the pivotal role Ginsburg had played, in her pre-justice days, in securing gender equality under the law. In the 1973 Supreme Court case for which she wasn’t name-checked by the Times, she won government benefits for Sharron Frontiero, a married female Air Force lieutenant, equivalent to what a married man would have received. In a series of cases in that tumultuous decade, Ginsburg made a forceful argument that women and men are guaranteed equality by the U.S. Constitution, most notably by the Equal Protection Clause of the 14th Amendment. She won five of those six cases, although she didn’t achieve her larger goal of obtaining a broad ruling that gender-based classifications are inherently suspect and therefore subject to “strict scrutiny,” meaning they’re almost certain to be struck down by the courts.

This was mostly quiet, precise, behind-the-scenes work, modeled on the incremental strategy Thurgood Marshall used pursuing racial equality in the 1940s and ’50s. When Ginsburg, again following in Marshall’s footsteps, was confirmed to the Supreme Court bench, she had the opportunity to advance her quest for gender equality under the law. In the 1996 case United States v. Virginia, which mandated that women be admitted to the Virginia Military Institute, Justice Ginsburg commanded a majority for the proposition that any classification by gender was subject to “heightened” judicial scrutiny —still not quite reaching her goal, but significant progress nonetheless.

Even if it had never come to pass that young women had likenesses of Ginsburg tattooed onto their shoulders, this line of case law, which Ginsburg pursued as a lawyer and capped off as a justice, would have left an indelible mark on Equal Protection jurisprudence.

On the homefront down through the decades, Ginsburg collaborated with a husband who embodied the equality principle she was fighting for. Marty, himself a noted tax attorney, did all of the cooking and much of the rearing of the two Ginsburg children. Well-connected in Democratic circles, he lobbied effectively behind the scenes to help make his wife a top candidate for the high court early in the administration of President Bill Clinton. Without Marty’s assistance, Ruth may never have been in a position to become so notorious.

It was after Marty’s death in 2010 that Ginsburg achieved icon status, subverting every cliché about women of a certain age. Understand, though, that RBG became a hero to women —including young women—not in spite of being soft-spoken, diminutive, and elderly, but because of these characteristics. If conventional wisdom holds that power comes in the form of a big, loud man, women and girls seemed to take visceral pleasure seeing someone who was the opposite of those things speaking her mind and standing her ground. The sight of an octogenarian widowed grandmother pulling a TRX band or holding a plank, wasn’t just amusing; it was empowering.

Ginsburg disappointed some liberals when she didn’t retire during the Obama administration to ensure that a Democratic president would choose her replacement. Her reaction to questions about how long she planned to serve was defiant and consistent: “I will remain a member of the court as long as I can do the job full steam.” Her confidence that Hillary Clinton would succeed Obama proved misplaced and could result in a conservative majority locking in control of the court for years to come. But that hasn’t dented Ginsburg’s reputation in the eyes of most of her fans, who perhaps respect her all the more for refusing to step down in the face of political pressure. The truly notorious, after all, are seldom swayed by the whims of public opinion.

A final factor in Ruth Bader Ginsburg’s rise to notoriety was her long struggle against cancer of both the pancreas and colon. She was a tiny, rail-thin woman stoically fighting an often lethal disease. Once Trump took office, the justice’s determination to beat cancer endeared her all the more to fans who hoped he wouldn’t have the opportunity to replace her. As reports of Ginsburg’s hospital visits increased, demand for her to appear in person only grew. In September 2019, having lately survived three fractured ribs from a fall, surgery to remove cancerous nodes on her lung, and a course of radiation treatment aimed at a new tumor on her pancreas, the justice sold out the 18,000-seat Verizon Arena in Little Rock, a venue usually booked for college basketball games and literal rock stars.

The justice’s determination to outlast Trump became the subject of countless Twitter and Facebook posts, with many fans offering to donate organs—even while they were still alive. Her surprisingly vigorous three-times-a-week workout became a focus of attention, leading to her personal trainer, Bryant Johnson, accruing his own social media following. In 2018, the McKinnon-Saturday Night Live version of Ginsburg held up a calendar with her future plans. “DON’T DIE,” it said in bold letters.

When she passed away, Ginsburg left behind a final message indicating that her thoughts were on the question of her successor, not that of her unlikely celebrity. She told her granddaughter, Clara Spera, also an attorney: “My most fervent wish is that I will not be replaced until a new president is installed.” Those were the words of a jurist concerned about her legacy—whether her stinging dissents might someday become the foundation for majority opinions—not one fixated on her pop profile.
 
Cohen is a documentary filmmaker. Her husband, Barrett, a former Bloomberg reporter, is deputy director of the New York University Center for Business and Human Rights.

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