Ruth Bad­er Gins­burg: A Life

Jane Sher­ron De Hart

  • Review
By – November 26, 2018

Over the past sev­er­al years, a whole mini indus­try of mem­o­ra­bil­ia has sprung up around one 85-year-old Supreme Court jus­tice. Shop­pers can buy Ruth Bad­er Gins­burg cof­fee mugs, col­or­ing books, mini-fig­urines — even pins ref­er­enc­ing the cro­cheted col­lar she wears over her robes. R.B.G.” has inspired not only a doc­u­men­tary but also a Hol­ly­wood film. Any­one writ­ing a biog­ra­phy of such a cult fig­ure must first decide what type of audi­ence they’re address­ing and, trick­i­er, how par­ti­san they wish to seem.

Jane Sher­ron De Hart, a long­time schol­ar of Amer­i­can his­to­ry and women’s stud­ies, has writ­ten a book for read­ers more inter­est­ed in Ginsburg’s sub­stance than her celebri­ty, more curi­ous about her strat­e­gy than her sound­bites. And, as befits a sub­ject who prefers not to speak about her inti­mate life in pub­lic, De Hart dis­cuss­es only those aspects of Ginsburg’s per­son­al life that have shaped her phi­los­o­phy, leav­ing the rest pri­vate. Her book is both an up-close account of women’s strug­gle to gain their right­ful places in the legal pro­fes­sion, and an in-depth study of the devel­op­ment of sex dis­crim­i­na­tion jurispru­dence. De Hart explains some of the key issues with which Gins­burg has grap­pled in her deci­sions: dis­crim­i­na­to­ry intent ver­sus dis­crim­i­na­to­ry out­come, the role of reme­di­a­tion, benign ver­sus malign pref­er­en­tial treat­ment, strict scruti­ny ver­sus a loos­er stan­dard, rem­e­dy­ing dis­crim­i­na­tion by exten­sion or by cur­tail­ing of ben­e­fits, and, impor­tant­ly, bas­ing abor­tion rights on grounds of pri­va­cy” rather than equal pro­tec­tion” doc­trine. Ginsburg’s posi­tions on land­mark cas­es not involv­ing gen­der — like Bush v. Gore and Shel­by Coun­ty v. Hold­er — are also explored, round­ing out the portrait.

Read­ers begin to see how much Ginsburg’s suc­cess owes to her care­ful atten­tion to strat­e­gy. When she first start­ed advo­cat­ing for women’s rights, she knew that most men and many women believed that leg­is­la­tion pro­tect­ing” women (mater­ni­ty leave, for exam­ple) was nec­es­sary and pos­i­tive, even if it actu­al­ly harmed women try­ing to enter or rise in those pro­fes­sions. She also had to find ways to help peo­ple under­stand that reg­u­la­tions that appeared to be gen­der-neu­tral might actu­al­ly affect men and women quite dif­fer­ent­ly. As Gins­burg moved from law school pro­fes­sor to ACLU advo­cate, and from cir­cuit court judge to Supreme Court jus­tice, she remained strate­gic — the most effec­tive cas­es need­ed to be heard first, deci­sions need­ed to be in step with where Amer­i­cans as a whole were going. She knew that, if pos­si­ble, bipar­ti­san­ship made for stronger outcomes.

Alas, as De Hart con­cludes this fas­ci­nat­ing biog­ra­phy in the sum­mer of 2018, with Pres­i­dent Trump’s nom­i­na­tion of Brett Kavanaugh, bipar­ti­san­ship has become a faint mem­o­ry. Read­ers can only imag­ine Ginsburg’s anguish. Still, De Hart choos­es to close on a grace note, tak­ing read­ers to an award cer­e­mo­ny in Israel to remind us of Ginsburg’s life­long com­mit­ment to tikkun olam, repair­ing the world. Although this is a schol­ar­ly biog­ra­phy, it serves as a very read­able intro­duc­tion to how the Supreme Court func­tions and how dis­crim­i­na­tion law, in par­tic­u­lar, has devel­oped in recent decades.

Bet­ti­na Berch, author of the recent biog­ra­phy, From Hes­ter Street to Hol­ly­wood: The Life and Work of Anzia Yezier­s­ka, teach­es part-time at the Bor­ough of Man­hat­tan Com­mu­ni­ty College.

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