The real-life Supreme Court justice has accomplished much for the cause of formal gender equality. The pop-culture RBG is a different character.
The real-life Supreme Court justice has accomplished much for the cause of formal gender equality. The pop-culture RBG is a different character.
R uth Bader Ginsburg’s recent series of hospital visits began when she took a tumble in early November, breaking three ribs. That first visit was a short one — she fell on Thursday, was released on Friday, and returned to work on Tuesday — but the reaction was dramatic nonetheless. Actress Leslie Grossman took to Twitter: “If Ruth Bader Ginsburg needs any of my bones or internal organs I don’t need mine.” Stephen Colbert made a similar offer: “No! Does she need ribs? I’ve got ribs. She can take mine!” Laypeople joined in, calling for witch spells to protect Ginsburg and demanding that she don an inflatable sumo suit for protection.
Though it’s not always serious, Ruth Bader Ginsburg has an intense fan following that no political figure can match. It’s nothing short of a pop-culture phenomenon, complete with merchandise, movies, and a recurring Kate McKinnon impression on Saturday Night Live. For many, RBG is simultaneously a fun rock-star celebrity and the final bulwark between us and a future resembling The Handmaid’s Tale. The reputation and the reality of Ruth Bader Ginsburg have often clashed, but they have also transformed each other — in five short years, she has became “notorious,” a radical feminist, and a legendary dissenter.
Justice Ginsburg’s fan following exploded thanks to a combination of timely cases, Supreme Court trends, shifts within progressivism, and of course the Internet. Its most immediate spark was the 2013 case Shelby County v. Holder. In Shelby, the Supreme Court struck down a provision of the 1965 Voting Rights Act that singled out certain states and counties for extra federal scrutiny. The decision in Shelby was 5–4, split along partisan lines, and responsibility for the dissent fell to Ginsburg, who’d been the Court’s senior-most liberal since John Paul Stevens’s retirement three years earlier. The majority had reasoned that the conditions justifying a then-decades-old standard for federal scrutiny had changed and that the states in question remained under scrutiny for voting-rights violations that they hadn’t committed in decades. Ginsburg characterized this logic as punishing the Voting Rights Act for being successful — like “throwing away your umbrella in a rainstorm because you are not getting wet.”
Ginsburg’s characterization of the ruling caught fire on social media. Countless young people embraced it as a witty rebuke to what they saw as unintelligent, racist conservatism. One such person was Shana Knizhnik, a New York University law student spending the summer at a law firm specializing in advocacy for death-row inmates. On Facebook, a friend had shared Ginsburg’s opinion with the hashtag #notoriousRBG, “as a comment on Ruth Bader Ginsburg’s amazing writing style and force in that opinion.” The hashtag caught Knizhnik’s attention. “It immediately clicked with me,” she explained in an interview for the NYU website, “that this must be a thing.”
The same day the Shelby ruling appeared, Knizhnik opened Tumblr and started a blog that she named “Notorious R.B.G.” Her first post was Ginsburg’s “umbrella” line from Shelby. It didn’t take long for the blog to establish its identity: a mix of quotations by and about Ginsburg, links to news articles, merchandise, GIFs, and myriad images ranging from a painting of a nude Barack Obama riding a unicorn while holding RBG to a photo, captioned “Squad Goals.” of the female Supreme Court justices.
Notorious R.B.G. is not especially popular by Tumblr standards, but it’s received an extraordinary amount of media attention. In late July 2014, when the blog was barely a year old, Katie Couric asked Justice Ginsburg about it in an interview for Yahoo! News. Ginsburg told Couric she’d seen the blog and, smiling, added, “I haven’t seen anything that isn’t either pleasing or funny on that website.” Before the day was out, Ginsburg’s endorsement was up on the blog. Ginsburg has embraced the “notorious” moniker — in 2016, asked about the nickname “Queen Ruth,” she replied, “I’d rather be notorious.” Ginsburg routinely praises Notorious R.B.G., and, each time, Knizhnik has posted about it — those posts are some of the most popular original content on the site. Ginsburg and Notorious R.B.G. enjoy a reciprocal relationship, each building the other’s notoriety.
By the time the blog was two and a half years old, it had led to a book. Notorious RBG: The Life and Times of Ruth Bader Ginsburg debuted at No. 7 on the New York Times bestseller list just before Halloween 2015. Knizhnik and MSNBC reporter Irin Carmon appear on the cover as co-authors, but in an “authors’ note” they clarify that Carmon wrote it and that Knizhnik selected pictures from Tumblr to illustrate it.
The contributions of Carmon and those of Knizhnik receive near-equal space in the book. Like the blog, it’s peppered with memes, cartoons, photos of Ginsburg, and RBG-themed merchandise at times only tenuously related to the text. The book also preserves the blog’s self-referential tendencies, spending several pages describing the blog’s founding, but its telling of Justice Ginsburg’s life story goes beyond what Knizhnik accomplishes in the blog. Through their emphases and even digressions, Carmon and Knizhnik established major plot points that have appeared in much of the RBG-themed media that followed, from Ginsburg’s Jewish upbringing in Brooklyn to her friendship with Antonin Scalia to her love of opera and her inability to cook. Carmon and Knizhnik also drew the outlines of how fans soon came to understand Ginsburg’s tenure on the Supreme Court: After Ginsburg penned a landmark decision in United States v. Virginia (a 1996 ruling that ordered the Virginia Military Institute to admit women), President George W. Bush turned the Court conservative, forcing her to become a dissenting voice there (and hence Ginsburg’s paucity of concrete and newsworthy accomplishments between 1996 and 2013).
Notorious RBG, book and blog alike, take for granted Ginsburg’s reputation as a feminist. As with Shelby, this reputation depends largely on a single well-timed dissent: in Ledbetter v. Goodyear (2007). Lilly Ledbetter was a Goodyear Tire and Rubber Company supervisor who learned on receiving an anonymous note that she’d been paid less than her male colleagues since she was initially hired in 1979. She filed a complaint, but it was too late — the Court, in an opinion by Justice Alito, ruled that Ledbetter could not sue Goodyear for its initial decision to pay her less, as the Civil Rights Act had a clear and necessary statute of limitations, and that each subsequent paycheck couldn’t be counted as a fresh offense. In her dissenting opinion, Ginsburg argued that the realities of workplace gender discrimination can make it difficult to recognize discrimination until long after the fact, as in Ledbetter’s case. She stated explicitly that “the ball is in Congress’s court” to change the statute of limitations for reporting gender discrimination. Then-candidate Barack Obama made a “fair pay” act part of his platform and signed the Lilly Ledbetter Fair Pay Act (which extended the Civil Rights Act’s statute of limitations) a week into his first term. Quotes from the Ledbetter dissent appeared early at the Notorious R.B.G. blog, and the Ledbetter Act is often cited as one of Ginsburg’s accomplishments.
Ginsburg is quite open to the idea of herself as a feminist heroine, once referring to herself as a “flaming feminist.” But Ledbetter was the first major gender-discrimination case for which she had written a Supreme Court decision since United States v. Virginia. Decades earlier, she’d made her career on such cases. In the early and mid 1970s, before her first appointment to federal court, Ginsburg co-founded and led the Women’s Rights Project at the American Civil Liberties Union. It was with this organization that she wrote her first Supreme Court brief (for Reed v. Reed, in which a separated couple disputed the execution of their deceased son’s estate) and argued before the Court for the first time (Frontiero v. Richardson, in which a female Air Force lieutenant sought housing benefits for her husband). She occasionally took on male clients wishing to dispute laws that privileged women — the first was Moritz v. Commissioner, in which a bachelor had tried to get a tax deduction for taking care of his mother (such caretaker benefits were reserved for women). Ginsburg had a special fondness for cases involving men; her favorite client from her ACLU days, Carmon and Knizhnik report, was Stephen Wiesenfeld, a widower who in 1975 had sought Ginsburg’s help in another caretaker-benefits case.
Ginsburg’s approach to gender law clashes somewhat with mainstream feminism. Most feminist legal scholars, as UC Hastings law professor Joan C. Williams put it, “consigned” her “to the dustbin of Formal Equality, as someone obsessed with treating men and women the same.” Ginsburg’s gender-discrimination cases, from Reed and Frontiero to Virginia and Ledbetter, have all been attempts to make the law gender-neutral. Her priorities cut against the idea of systemic injustice — contrary to beliefs that existing institutions are designed by and for men, and therefore need restructuring, Ginsburg simply seeks to bring women into those institutions. Before 2013, feminist scholars tended to see her as promoting a superficial, procedural form of equality rather than truly empowering women.
Legal academics and feminist scholars started reevaluating Ginsburg after Knizhnik’s blog began receiving mainstream attention. In their laudatory monographs they have de-emphasized the “formal equality” of Ginsburg’s early opinions and of Virginia, focusing instead on her dissenting opinions, including that in Shelby v. Holder, to argue that she is more radical than she appears. Dissenting opinions have always had great symbolic value, and because the senior-most liberal justice gets to choose who writes the dissent when the Court’s conservatives win a majority, that justice is often perceived as being harsh on conservatives. That is nothing new. But some scholars have found a way to make Ginsburg’s act of routine dissent sound novel and radical.
One of them is Colorado State’s Katie L. Gibson, whose in her book Ruth Bader Ginsburg’s Legacy of Dissent (2018) argues that “Justice Ginsburg’s judicial voice can productively be understood as a voice of linguistic dissent.” That Ginsburg writes dissents rather than majority opinions is not a sign of failure to build consensus or convince colleagues but rather represents a fundamental shift of the “rhetorical boundaries of jurisprudence.” Ginsburg’s rhetoric is revolutionary, even if her impact on the law itself is not. Indeed, Gibson argues, the very idea of “the law itself” betrays patriarchal conservative pretensions — to “objectivity, abstraction, and procedure” — that Ginsburg deconstructs in all of her statements. By speaking her mind and appealing to extra-judicial authorities, including Congress and “the people,” Ginsburg turns dissents that are not legally binding into a subversive new way to do law.
Gibson’s take might be farfetched, but it is not entirely unique. In her essay “Dissent as Demosprudence,” Harvard Law’s Lani Guinier argues that Ginsburg’s dissent from the Court majority and her departure from traditional procedure represent a remarkable innovation: “interpreting law from an external . . . ‘people-driven’ perspective.” By going outside the Court’s usual conventions, such as by citing citizens’ experiences as if they were legal precedent and, in Ledbetter, by appealing directly to Congress, Ginsburg “developed the architecture of demosprudence in today’s court.” Gibson and Guinier allege that Ginsburg’s radical feminist approach to law is what leads her to work outside the Court’s expected procedures — in her dissents, her comments to the media, and so on. Summing up this view of Ginsburg, Slate’s Dahlia Lithwick writes that “for anyone who wishes for the more radical, inflammatory, civil rights version of Ruth Bader Ginsburg at the Court, my suggestion is just this: she’s already there.” Ginsburg’s radicalism, feminist commentators say, is right under our noses. The key is to look at everything other than her concrete, procedurally legitimate effect on law.
The picture of a counter-proceduralist RBG wielding a unique rhetoric of dissent to bust through stale and supposedly objective (but deeply patriarchal) rules contradicts the view that other legal scholars have of her. Scott Dodson, in an essay for a collection he edited on The Legacy of Ruth Bader Ginsburg, refers to her as “the resident proceduralist on the Court.” Dodson and others in Legacy praise Ginsburg’s work on issues beyond gender, and she consistently comes off as a procedure-minded moderate deeply interested in the legal system’s conventions. According to Dodson, Ginsburg “would write all of the procedure opinions for the Court if only her colleagues would let her.”
Dodson’s depiction of Ginsburg as the consummate proceduralist stands in stark contrast to the picture of her, as rule-defying arch-dissenter, that has become an important part of her pop-culture image. It’s especially important in how she’s marketed to children. Take, for instance, Debbie Levy’s 2016 picture book I Dissent. There the author recounts the basic plot points of Ginsburg’s life and personality as established by Notorious RBG — her Jewish upbringing, her friendship with Scalia, her inability to cook. But the running theme is that Ginsburg’s life, from girlhood to the Supreme Court, has been “one disagreement after another. Disagreement with creaky old ideas. With unfairness. With inequality.” Nearly every page is streaked with a large-type synonym of “dissent” — when a teacher told left-handed Ruth to write with her right hand “she PROTESTED”; when she first learned about gender roles, “Ruth OBJECTED.” One page shows her leading a march of downtrodden dissenters and lists, in simple terms, three of her Court dissents. A “young readers’ edition” (2017) of Notorious RBG ratifies the basic theme of RBG-themed children’s literature: “Ruth has perfected her dissents, turning protest into an art form.”
As with the titles “notorious” and “feminist,” Ginsburg has responded to that of “dissenter” approvingly and has actively reinforced that aspect of her image. Before 2013, she would, on occasion, voice dissent (informally) from her colleagues outside the Court’s normal procedures. For example, Redding v. Safford (2009), in which an eighth-grade girl had been strip-searched at school. Before Redding had even been decided, Ginsburg in an interview with USA Today criticized her male colleagues for failing to understand female experience. She has been increasingly willing to take political sides outside the Court since 2013, presiding over a same-sex wedding a month before the Obergefell v. Hodges decision, calling then-candidate Donald Trump a “faker,” and praising the Me Too movement on the eve of Brett Kavanaugh’s confirmation hearings. Call her “demosprudential” or “partisan,” but Ginsburg has clearly leaned in to her newly defined role.
Time and again, Ginsburg’s reputation preceded, and even created, the reality. But some contradictions remain — this self-proclaimed “flaming feminist” hasn’t written a majority opinion on a major social issue in decades, doubts whether Roe v. Wade was a good decision, and over her 40-year career has only rarely been on the cutting edge of feminist critique. She dissents from conservatism, but not as loudly as Bernie Sanders, and has neither the charisma of Beto O’Rourke nor the civil-rights credentials of John Lewis. So, the question stands: Why her? With so many radical and well-accomplished left-of-center public figures to choose from, what makes Ginsburg worthy of such an intense cult following?
Some clues can be found in the two movies about her released last year: the CNN-produced documentary RBG and biopic the On the Basis of Sex. The former is essentially a film adaptation of Notorious RBG, following the same biographical story with the same digressions into opera, Scalia, and family life and the same explanation for the dearth of newsworthy majority decisions since 1996. Knizhnik and Carmon even show up, and the documentary includes the story of how Knizhnik started Notorious R.B.G.
Basis is somewhere between courtroom drama and romantic chick flick. Perhaps surprisingly, it’s not, à la Selma, the story of a hero struggling against all odds for social change. Felicity Jones plays a remarkably passive Ruth Bader Ginsburg just beginning her legal career in the early ’70s. Caught up in the winds of social change, her character (at the prodding of her adoring husband and her feminist daughter, Jane) learns to trust the march of progress and just follow along. It’s an awfully straightforward movie; Basis boasts few twists and turns because the plot, like history itself, moves of its own volition around Ginsburg. Her big eureka moment in the movie is when she sees her daughter yell at catcallers — stunned, she turns to Jane: “You’re a liberated, fearless young woman,” formed by a culture that had already changed. Ginsburg realizes that she doesn’t have to change anything herself. She carries this revelation into a rousing speech that wins the day in court, announcing to the judges presiding over Moritz v. Commissioner, “We are not asking you to change the country; we’re asking you to protect the right of our country to change.” Ginsburg’s great virtue is her ability to follow the leader. In a triumphant final scene, her client, her husband, her ACLU boss, and her feminist daughter all line up outside the courthouse to tell her what a good job she did.
There’s an important discrepancy between RBG and Basis in their depictions of Ginsburg’s early career. Over Basis hangs a question that never gets answered: Are Ginsburg’s priorities as attention-worthy as the civil-rights and anti-war movements? When the character first takes the Moritz case to the ACLU, she meets resistance — why should the ACLU care, when it has more than enough draft-card-burners and African-American leaders to defend? The question reemerges both in a mock trial and in court, where Ruth and Marty, respectively, are asked whether they mean to equate the struggles of women with the struggles of black Americans. On neither occasion do they venture an answer. There’s an anxiety in On the Basis that can only be described as “intersectional,” a sense that Ginsburg, as a demure white feminist, constantly risks insensitivity to other, more-salient forms of oppression.
The real Ruth Bader Ginsburg felt no such anxiety. Whereas the ACLU leader (played by Justin Theroux) in Basis doubts the social-justice credentials of the feminist movement, Ginsburg’s real-life ACLU boss Aryeh Neier says something very different in RBG: “A women’s-rights movement had the possibility of playing the role in the 1970s that the black civil-rights movement had played in the 1960s, and so I was particularly eager to create a special project dealing with women’s rights.” And whereas Basis never resolves the question of whether to compare gender with race, Ginsburg herself told the Supreme Court in Frontiero that women faced discrimination “as pervasive and more subtle than discrimination encountered by minority groups.”
On the Basis reflects, in part, generational differences between the activism of today and that of the 1970s. But its anxieties also reveal a key to Ginsburg’s uniquely passionate fan following. As portrayed in Basis, Ginsburg is a hero for the insufficiently intersectional, for the rank-and-file progressives who aren’t on the radical cutting edge but still hope to keep up with history, whose version of women’s liberation entails little more than getting a raise or a white-collar job. Her example shows that it’s possible to be praised as a valuable member of the progressive movement even if you’re a straight white woman who relies on her husband, maintains friendship with a conservative, and enjoys a media presence that dwarfs her concrete accomplishments. In activist terms, Ginsburg is an excellent “ally.” And there’s nothing progressivism needs more right now than examples of well-regarded allies. The accelerating demands of social justice increasingly threaten to divide radical progressives from their largely straight, white, female rank-and-file. Every year, the latter see signs at the Women’s March and elsewhere saying “F*** White Feminism” and “The Future Is Intersectional.” It’s hard to be an ally these days. The pop-culture version of Ruth Bader Ginsburg is a promise of big-tent progressivism, a hope that white feminists and the insufficiently intersectional will always be praised for going with the flow.
So it seems that Ginsburg is praised not despite her paucity of major rulings and her less than radical feminism but because of them. Media often prefer to depict Ginsburg as ineffective but beloved, rather than effective but opposed. Both editions of the Notorious RBG book count Obergefell v. Hodges among Ginsburg’s accomplishments, not because she wrote its historic majority opinion (that was Justice Anthony Kennedy) but because Dan Canon, the gay couple’s attorney, wore a “Notorious RBG” T-shirt under his suit at oral arguments. The Tumblr version of Notorious RBG celebrated the ruling with pictures of Pride marchers in rainbow-colored RBG attire. “It was RBG’s image, rendered in rainbow and animation riding across the Supreme Court steps on a motorcycle, that dominated celebrations,” Carmon writes. Ginsburg’s victory was not that she won new rights for LGBT Americans but that she won their approval.
Like most celebrity worship, Ginsburg’s fandom is, in the end, defined the most by the little things — its embrace of the frivolous quirks and details that make the “Notorious RBG” human and attainable. This is true even when devotion borders on religiosity; it’s probably a safe bet that the RBG prayer candles available for purchase online are meant as a trinket or joke marketed to people who don’t normally use prayer candles. Merchandise and accessories have been an important part of RBG fandom since Knizhnik’s second Tumblr post; there’s a sizeable market for knickknacks meant to remind oneself and others of Ginsburg’s symbolic value.
Ginsburg’s fashion choices get plenty of attention for similar reasons. Her distinctive clothing choices are rather modest; several Notorious R.B.G. posts are about Ginsburg’s gloves, for example. Gloves and collars (Ginsburg’s most distinctive clothing item — she wears a special collar when reading dissenting opinions from the bench) are very attainable accessories. A nondescript necklace from Banana Republic can be enough to signal one’s love for Justice Ginsburg and to identify with the dissenting persona she represents. Less discreet fans can seek out any of the numerous Ruth Bader Ginsburg Halloween costumes. Entire pages of Notorious RBG are devoted to pictures of young women and girls in RBG costume, but even those relatively elaborate clothing choices manage to underscore Ginsburg’s attainability as a role model. An RBG costume is a simple one: robe, glasses, hairdo.
This every(wo)man quality of Ginsburg’s pop-culture presence is powerful. The repeated note that she can’t cook, in addition to underscoring her non-traditional home life, humanizes Ginsburg and makes her an attainable model as much as her simple fashion choices do. The need for an attainable RBG also explains the attention that her workout routine receives. Politico’s Ben Schreckinger said he could replicate Ginsburg’s hour-long regimen only “after 90 grueling minutes, panting and red in the face.” RBG and Notorious RBG both devote time to Ginsburg’s workout, and Ginsburg herself, soon after a heart procedure, told Knizhnik to tell her fans, “I’ll be back doing pushups in a few days.” Schreckinger, Knizhnik, and the makers of RBG present the workout as exhausting (in keeping with Ginsburg’s heroic image) but also familiar, as something available for fans to imitate. Her trainer Bryant Johnson wrote a book (2017) whose title sums it up: The RBG Workout: How She Stays Strong . . . and You Can TOO!
Ruth Bader Ginsburg may well be indispensable, if not to the republic, certainly to contemporary progressivism. People who read books by and about her, who watch movies about her, and who wear RBG costumes all need something to identify with. Unable to see themselves on the front lines, many rank-and-file progressives benefit greatly from seeing someone receive praise for being like them. The real-life Ginsburg has accomplished a great deal for the cause of formal gender equality; the Ginsburg that exists in books, blogs, movies, toys, and T-shirts plays an important role for those who have not. It’s unclear whether anyone else could take her place in progressive politics.