When Ruth Bader Ginsburg died on Friday at age 87, she was the most senior Justice on the Supreme Court of the United State’s liberal wing. She was also the second woman ever to be appointed to that hallowed court.
In her time on the bench she made sweeping steps forward in the rights of women, LGBTQIA+ Americans, African Americans, immigrants, and any person who approached her court whom she deemed to have been silenced or marginalised in their search for justice.
Justice Ginsburg has protected voting rights, abortion rights, equal pay rights, and the right for everyone to live with dignity. She is also the reason I decided to become a lawyer.
But when Ginsburg first left law school, she couldn’t get a job anywhere despite graduating at the top of her class at Harvard law. It was 1959.
“To be a woman, a Jew, and a mother to boot,” she would later say about this time, was “a bit much.”
Ginsburg was a clear-eyed idealist. She wanted so badly for the world to be different, but she could also see clearly just how broken it was.
This gave her a unique approach to progress. She wanted to dismantle the system, but she knew if she tried to do it in one fell swoop she would be laughed out of a courtroom. She understood that real structural change is slow, incremental and hard-won.
That dismantling structural discrimination is not the work of a political moment or even a political movement, but the work of a lifetime.
Before she had any power, she had a strategy. She knew that she couldn’t win any arguments in the 1950s and 1960s by being the loudest or most powerful voice in the room – her best bet was to be the cleverest. She knew that the way to win an argument as the underdog, as the one to whom no-one wanted to listen, is by cajoling your opponent, pretending to respect their argument while you convince them of yours.
Disagree with people, she is famous for saying, but do it in a way that will bring them onto your side.
She listened to conservative opponents not because she felt there was any chance the arguments would convince her out of her own views, but because she believed that listening was the best way to position her opponents to be convinced out of theirs. And ultimately, she always did.
It is in this way that Ginsburg built a radical life in a deeply conservative America. With baby steps. With a slow-and-steady-wins-the-race outlook.
She would often cite Justice Benjamin Cardozo: “Justice is not to be taken by storm. She is to be wooed by slow advances.” She was wary, she said, of “taking giant strides and thereby risking a backlash too forceful to contain.”
Justice Ginsburg played the long game.
This is not everyone’s approach to progress. Oftentimes, it is not even my own. But what Ginsburg knew was that every act of progress has its place, and her skills were such that making incremental changes to the law, ones that would coalesce into a revolution of sorts, albeit a slow one, was the best thing she alone could contribute. I think that is an important lesson.
In 1972, she decided that the only way to get a court to recognise the rights of women was to get them to recognise the rights of men. It sounds counterintuitive because it was. It was clever because it was unexpected, and that’s also why it worked.
The case was 10th Circuit in Moritz v. Commissioner. After years of hunting, she found an example of a life in which discrimination against women harmed men. In this case, a man had been denied caregiver benefits because of his gender.
She went before the courts and argued for equal treatment of women by framing it in a way the all-male bench could understand: this hurts you too. She gave them a reason to agree with her. But then she turned around and used that one judgment, in a case that could have proved to be inconsequential, to turn the tide on so many aspects of discrimination against women. The judges on that bench never saw her coming.
Her biographer Jane Sherron De Hart described this as the way she would “lead the judges to the desired judgment in a way that would be comfortable for them.”
Making our opponents comfortable in order to defeat them is not always popular, easy or fun. But with the right cunning, strategy, and conviction to the steady overthrow of power, it works.
It is in this way that she dismantled the US’s last all-male college in United States v. Virginia, she fought back against arguments designed to undermine a woman’s right to choose, and she crafted a landmark ruling in equal pay for women.
Ginsburg is known as an activist for gender rights, but she is so much more than that. When conservative forces aligned to try and strip away voting rights for African Americas in Shelby County v Holder, she tried her best to stop them.
She said: “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”
She chastised an mostly-white majority for being so foolish as to think that there was no need for the court to protect voting rights.
In response to their judgment, which argued that the laws designed to protect African Americans’ right to vote were no longer needed, she said: “It is like throwing away your umbrella in a rainstorm,” she wrote, “because you are not getting wet.”
She is also widely believed to be the reason the court ended up making same sex marriage legal in every state in the historic decision in Obergerfell v Hodgers. She led her hyper-conservative colleagues to sign on to a judgment that still rings in my ears as if it were the day it was handed down.
In the last line of the decision proclaiming that every same-sex couple had the right to marry, the judgment says: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
I understand wholly that none of these judgments alone were enough to solve structural problems or fight the biggest battles. But every single piece of progress has its place: activism, unrest, grassroots politics, and law. Those rulings were not sufficient. But they are, I believe, necessary.
Ginsburg’s radical heart was laid bare when she would often joke about how frequently she is asked when she would consider there to be enough women on the supreme court and she would reply: “when there are nine.”
There was never “enough” justice, to her, until every system of oppression had been dismantled. She never believed in the work being done.
For Ginsburg, the fight was never over. She knew this was life-long work, and that it would go on far longer than she would.
So what now?
What will follow Ginsburg’s death is the antithesis of what she stood for in life. President Trump will launch a hateful, divisive battle to install a hyper-conservative justice before he – if current polls are anything to go by, but of course I write that sentence with caution – loses the presidency in November.
He will prey on the instinct to hate and belittle and demean your opponents, to overpower instead of out-smart the other side, to snatch power instead of earning it.
It seems to me that the best way to honour her legacy is to fight against that wherever we see it, and to make sure her death does not turn out to be one more chance for the president to dance on the graves of the vulnerable.
Ginsburg was truly the anti-Trump. We need more of her courage and more of her conviction and more of her commitment to progress in the face of hate and suffocating systemic oppression.
This weekend I’ve seen praise for Ginsburg pouring in on social media and in the news. I’ve also seen multitudes of comments to the tune of: “if one old woman’s death threatens the republic, maybe the system didn’t work to begin with.”
But this assumes Ginsburg believed in the system, and she did not. The system is wretched. She knew that. I fear that to be cynical about her death would be a sure-fire way to make it more so.