February 17, 2021 Feature

Notoriously Ours

By Ann Farmer

Even after she died in September 2020 at age 87, Supreme Court Justice Ruth Bader Ginsburg continued to give sexism the elbow. She became the first woman to lie in repose in the U.S. Capitol, following a two-day wake at the Supreme Court.

“It was so incredibly uplifting to see how much she meant to so very many people,” says Elizabeth Prelogar, one of 120 law clerks, many of whom flew in from around the country to stand sentry on the Supreme Court steps as hundreds of people wound around the building and down the street, waiting to pay homage. “And they were crying and praying and crossing their hearts,” notes Prelogar, a partner at Cooley LLP’s Washington, D.C., office. “It was such an amazing outpouring of love and respect for her.”

A pioneering advocate for women’s rights and gender equality, Justice Ginsburg rose to cultural icon status in her last decade when she was conferred the hearty moniker “Notorious RBG” by adherents. She earned their veneration by tenaciously challenging unfair laws and practices: first, for herself—she initially faced hiring discrimination despite graduating first in her 1959, overwhelmingly male, Columbia Law School class. As a lawyer, she argued six gender discrimination cases before the Supreme Court, winning five of them. Later, as one of the High Court’s justices for 27 years, she penned notable opinions and dissents that similarly aspired to raise people up and place men and women on an even footing.

“Justice Ginsburg was brilliant. She was resilient. She was courageous. She was tireless,” says Amanda Tyler, who also clerked for Ginsburg and is currently the Shannon Cecil Turner Professor of Law at the University of California Berkeley School of Law. “She had so many obstacles put in her path. But she did not let them slow her down. It was the combination of extreme talent and gifts but also a fearlessness. Nothing was going to stop her.”

One of her earliest successes as a lawyer was the 1971 Supreme Court case Reed v. Reed. It involved a separated couple in conflict over the executorship of their deceased son’s estate. Idaho Code specified that males should be prioritized over females. Ginsburg’s brief took the novel stance that discrimination based on gender was unconstitutional because it denies equal protection. The Court was unanimously swayed by her viewpoint, and the decision cast a domino effect on hundreds of other discriminatory laws subsequently overturned.

Nina Totenberg, NPR legal affairs correspondent, had just assumed her new beat covering the Supreme Court when Reed rose in the docket. Knowing that the Fourteenth Amendment had been enacted to uphold the rights of former slaves, she didn’t immediately see the connection. So she placed a call to Ginsburg, then a professor at Rutgers Law School. Ginsburg took her through her brief and logic “in words I could understand,” Totenberg notes. Ginsburg boiled it down to this: “The Fourteenth Amendment guarantees equal protection for any person, and women are people.”

That conversation triggered a lifelong rapport. “To know that there was somebody like her, who was doing this work, it gave me oxygen in my career, in reality, and psychologically,” says Totenberg, who credits Ginsburg with opening countless doors for women. “There is not a woman my age,” she adds, “who doesn’t know that the job they have today or the opportunities they have are due in part to Ruth Bader Ginsburg.”

Many women, in fact, have been inspired to tread right in her footsteps. This includes Fatima Goss Graves, president and CEO of the National Women’s Law Center, Washington, D.C. She especially admired Ginsburg’s ability to see litigants as real people facing genuine struggles and injustices in life and to viscerally connect that to her arguments. “That always stuck with me very powerfully—that the law isn’t some ivory tower thing that is different from actual people’s lives,” Graves says. “And when I think about the day-to-day work that we do at the Women’s Law Center, that’s where we begin.”

One of Ginsburg’s early tactics was to flip the gender argument on its head by showing that discrimination undermines both sexes. In Frontiero v. Richardson (1973), for instance, she argued before the 10th Circuit on behalf of a female servicemember and her husband who were denied a housing allowance routinely allotted when the servicemember’s spouse is a woman. It was Ginsburg’s first oral argument, and she spoke uninterrupted “just shy of 11 minutes,” Tyler notes.

“What you hear is that she is educating this all-male bench and trying to open their eyes to see that discrimination works in multiple directions,” Tyler continues. “They needed to see and understand it through a new lens. And she, of course, won that case and convinced them.”

Similarly, two years later, when Ginsburg argued Weinberger v. Wiesenfeld before SCOTUS, she represented a widower seeking Social Security survivors’ benefits normally only accrued to widows. His wife had died in childbirth, and he’d cut his work hours to raise his son, necessitating the economic aid. Ginsburg instructed the petitioner to sit next to her, highly visible to the all-male bench: “‘There he is. What are you going to do about it?’ she seems to be saying to the court. And that was brilliant,” Tyler says. “She won that case as well.”

Ginsburg’s first judgeship landed in 1980 when President Jimmy Carter appointed her to the U.S. Court of Appeals for the D.C. Circuit. In 1993, she was chosen as the second woman to the U.S. Supreme Court by President Bill Clinton. After she took her seat, she continued to enlighten her male colleagues and fellow citizens.

Totenberg recalls covering a hearing involving a strip search of a 13-year-old girl by school officials looking for prescription-strength ibuprofen. Although none was found, the girl was made to “poof out her bra, so they could look there, and her underpants.” Then she was told to wait in the hallway for her mom while other students, aware of what had transpired, walked past. “At oral argument,” Totenberg notes, “the men really didn’t take this very seriously.”

Ginsburg—who was the only woman Supreme Court justice at the time—wasn’t having it. “I looked at Ruth and I almost could see the steam coming out of her ears,” says Totenberg, recalling her blistering admonition regarding the acute humiliation a pubescent girl would suffer in that situation. “You could have heard a pin drop in that courtroom. And suddenly the whole tenor of the argument changed.”

Ginsburg put equally as much passion into her dissents. “I could cite many examples,” Tyler says. “Perhaps one of the easiest examples is her Ledbetter dissent, when she explains to the all-male majority how hard it is as a working-class woman to speak out when you are a victim of pay discrimination.” In Shelby County v. Holder (2013), when the majority invalidated a provision of the Voting Rights Act, Ginsburg didn’t just say they erred; she said they erred “egregiously.”

In that vein, Totenberg thinks she understands why Ginsburg rose to folk hero status in her 80s. Even an emoji and Saturday Night Live skits were dedicated to the Notorious RBG. “I think it has something to do with her standup-ness in this very quiet, dignified way. She was unafraid to speak her mind, to stand up for small people.”

Ginsburg didn’t seek her celebrity status, but she enjoyed it. Tyler recalls Ginsburg visiting UC Berkeley when a student approached wearing a T-shirt emblazoned with the words “Notorious RBG” and Ginsburg’s face framed by a lacy court collar and slightly lopsided crown. After the student walked away, Ginsburg asked Tyler if she had one. “I said, ‘Yes, Justice, don’t you?’” Ginsburg didn’t. “I got mine and gave it to her. I literally gave her the shirt off my back,” Tyler chuckles. “My understanding is that shortly afterward she bought a case of them.”

One of Ginsburg’s secrets to accomplishing so much was to sleep less. She often labored at night over her opinions and dissents, choosing her words carefully. For her Shelby dissent, she memorably wrote, “Throwing out 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.”

Ginsburg likewise wasn’t shy about inventing useful terms, such as when she originated the word pathmarking to describe precedent setting. “And it’s one that I’ve noticed has gotten picked up by her former clerks and by other justices,” Prelogar says.

Ginsburg, in turn, stressed the importance of clear, digestible writing to her law clerks. Once her clerks completed a draft, Ginsburg would sit them down for a teaching moment: “Line by line, word by word,” Prelogar recalls, “she would explain her edits and why she had changed things—why she thought one word would work better than another—why she had restructured the arguments. And to have that kind of mentoring—up-close mentoring focused on how to write—was such an amazing opportunity as a relatively new lawyer.”

After Prelogar clerked for Ginsburg, she became an appellate litigator, arguing seven times in front of Ginsburg. The first time, she recalls, “My heart was pounding. I had spent so many weeks preparing and was so incredibly nervous. And I was immediately put at ease when the justices came on the bench because Justice Ginsburg looked right at me and she smiled. And she radiated this warmth and confidence in me that helped me put my stress aside.”

Although Ginsburg did not vote in her favor that time, Prelogar recalls her asking penetrating questions then and during each subsequent hearing. Prelogar’s second SCOTUS case, for instance, involved collective actions under the Fair Labor Standards Act. Ginsburg asked Prelogar to clarify whether the U.S. Department of Labor had investigated or had the resources to investigate various allegations. “The reason I’m thinking of it,” Prelogar says, “is because one thing that Justice Ginsburg was known for was mastering the facts of the case. She really believed that facts matter.”

Ginsburg did more than mentor her clerks. She showered them with thoughtful gestures, like gifts and birthday celebrations; supported them into their careers; and often married them. “She was always looking to lift people up around her and bring out the best in those who worked for her,” says Tyler, recalling that when she began seeking a teaching position, Ginsburg voluntarily made calls on her behalf. “And I have every confidence that made a difference in how things went from there for me.”

Ginsburg also set an example by living a full life. She married Martin Ginsburg, a prominent tax lawyer and a loving and attentive husband. They raised two children. He did all the cooking. They enjoyed nights at the opera (which might include her friend and colleague Justice Antonin Scalia). Marty was also one of her biggest cheerleaders; at a key moment, he rallied support for her nomination to the Supreme Court.

“She used to say, ‘You can have it all—just not at once,’” says Prelogar, noting that Ginsburg stressed the importance of selecting the right life partner “who is supportive of your career and willing to carry a fair amount of the weight or tasks on the home front.”

Although Ginsburg was petite and appeared demure, she had no trouble lobbing zingers during public engagements. She relished, Totenberg says, telling the story of getting calls from her son’s school to come in to discuss his mischievous behavior. After attending several time-consuming conferences, she told them to call Marty: “This child has two parents. It’s his father’s turn,” she told the school authority. Totenberg adds, “It always got laughter and this huge ovation.”

Arguably Ginsburg’s most famous quote was when she was asked how many women on the Supreme Court would be enough. “And she said, ‘Why not nine?’” Prelogar points out. “It demonstrates that she understood that there was a role she played as well, in our society and our culture, in showing little girls that they belong on the Supreme Court just as they belong in all areas and branches of government.”

And while she undoubtedly wouldn’t be happy about a conservative judge replacing her, Totenberg says, “I think she would feel better having a woman than a man with a similar conservative ideology.”

Ginsburg fought many bouts with pancreatic cancer before succumbing to the disease on September 18. “I felt heartbroken,” Prelogar says. “She had this aura of invincibility about her. She really was the Notorious RBG. And it just seemed impossible to me.”

Tyler, who served as an honorary pallbearer, says it was moving and comforting to be standing on the SCOTUS steps among Ginsburg’s family of law clerks. “Because for every one of us,” Tyler says, “she changed our lives. For every one of us, she was a role model and hero. We also acutely recognize that she was and is a national treasure. That being said, it was incredibly hard in that moment to take in and absorb that this was her last time coming to the court.”

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By Ann Farmer

A former reporter/contributor to The New York Times, Ann Farmer currently writes for various magazines about subjects ranging from law to pop culture. She’s based in Brooklyn, New York.