The Ivory Gavel: Putting RBG In Context

For heroism in the courtroom, look further than Ruth Bader Ginsburg.
By J. Livy Li

I always wanted to be Ruth Bader Ginsburg. A young, bookish girl with an interest in social issues who was too young to question institutions but old enough to appreciate change? That’s a first-class day-one RBG superfan. I dreamed about becoming a lawyer because of her. It’s not an uncommon story except that I’m Asian and from Canada, where nary a soul knows who sits on our own Supreme Court, so nobody in my community really understood why some white woman in a whole different country mattered so much to me. I would devour her dissents between fantasy novels; on more than one occasion I rattled off lists of Ginsburg’s accomplishments to my (very sexist) father. I rationalized overlooking her whiteness — Jewish people aren’t treated that differently from Asians in America, I’d tell myself, so there. 

When I was thirteen, Sonia Sotomayor was confirmed to the Supreme Court. A woman! A woman of color! A woman of color from a poor family who attended Princeton and then Yale! She checked off all the boxes that I could identify with and all the boxes that teenaged me could aspire to, so with all due respect, I all but forgot about Ginsburg. 

And then the Trump presidency happened. Suddenly, every (white) woman-centric corner was touting Ginsburg as a champion of civil rights; her rise in pop culture coincided with a consumable caricature of feminism becoming mainstream via phenomena ranging from deeply important (#metoo), to questionable (Girlbosses), to troubling (Pussy Hats and TERFs). She was everywhere — there have been books about her, films, podcasts, Banana Republic nods to her collars, and so much merchandise

Ginsburg’s journey, from before her undergraduate years at Cornell to her cultural icon status, was certainly hindered by sexism but just as certainly aided by her whiteness.

On Sept. 18, 2020, Ginsburg passed away after years of battling cancer on and off. Conservatives immediately moved to replace her before the next election; in response, liberals rallied around Ginsburg, the media buzz around her possibly eclipsing that of Trump’s victory in 2016. Much of this coverage around Ginsburg celebrates her achievements for gender equality; a lot of it also mythologizes her heroic journey through Harvard Law, into a workplace that was unprepared for and unwelcoming towards women, and then through trial after trial, finally emerging triumphantly in a black robe with scales of justice in hand (or, depending on who you ask, a facsimile of Notorious B.I.G.’s crown on her head). Meanwhile, leftists shrugged her off, citing her voting record against Indigenous folks and criminal justice to show that Ginsburg championed only some women's rights. 

What this conversation should really address is Ginsburg’s position within systems of oppression; Ginsburg’s journey, from before her undergraduate years at Cornell to her cultural icon status, was certainly hindered by sexism but just as certainly aided by her whiteness. Sotomayor, for example, was the first woman of any color on the Supreme Court. There have been no Indigenous, nor Black women on the Supreme Court — and no Asians either, for the record. Ginsburg preceded Sotomayor by 16 years, and Sandra Day O’Connor, the first woman on the Supreme Court, preceded her by 28. Sotomayor has a much more progressive SCOTUS voting record than Ginsburg, a history of activism (she successfully pressured her alma mater Princeton into hiring more Latino professors), is also from New York, and she’s younger. For all intents and purposes she would seem the more natural favorite of young women. But, as we all know, white liberal media much prefers Ginsburg.

Not enough attention has been paid to the white brick road, so to speak, that Ginsburg had the fortune of taking past the Ivory Tower and into history books.

We can also compare Ginsburg to the first Black woman at Harvard Law, Lila Fenwick, who graduated in 1956 the summer before Ginsburg enrolled. The child of wealthy Trinidadian immigrants, she was in law school when the Supreme Court desegregated public schools in Brown v. Board of Education. She forged on to become chief of the United Nations’ Division of Human Rights, specializing in gender, race, and immigration protections. Fenwick died this same year on April 4 from the coronavirus — a pandemic that has killed Black Americans at more than double the rate with which it has killed white Americans. The only major news outlet that covered her death was the New York Times, as part of a series on COVID deaths. 

Among her own law school class Ginsburg was in the company of eight other women, all of them white. Despite their various accomplishments — Carol Brosnahan is a judge in California; Virginia Nordin became an academic at the University of Michigan — these women are most often in the public eye as, collectively, Ginsburg’s classmates. The more progressive of these women are often the lesser known: Marilyn Rose, for example, worked in the Office for Civil Rights to help desegregate hospitals. She worked at the overlap of healthcare and race including representing clients in Cook v. Ochsner Foundation Hospital, one of the first American cases to challenge the various discriminatory factors in healthcare and the affording of it. Wiltrud Richter protested from childhood all the way to her 80’s, pursuing the law because she felt it was the “most effective instrument to further human rights and social justice.” She did pro-bono work for low-income clients, represented domestic abuse survivors, campaigned against the death penalty and rallied for aid to undocumented immigrants. 

So what’s the deal here? Why have we afforded Ginsburg this celebrity status when there are, certainly, much more heroic lawyers out there? The Ginsburg media circus thrives off of stanning her meteoric career or criticizing the moments in which her whiteness supersedes her feminism, but not enough attention has been paid to the white brick road, so to speak, that Ginsburg had the fortune of taking past the Ivory Tower and into history books. When her compatriots who are simply women sans whiteness have not obtained nearly the same levels of fame and exclusive prestige (there are, after all, only nine justices on the Supreme Court), we have to wonder what these women were not privy to. When her fellow white women — with equivalent credentials — who live relatively obscure lives are the same ones who have dedicated themselves to the causes of racial minorities, low-income folks, and immigrants, we have to identify exactly which causes made Ginsburg famous and which ones didn’t.  

Do we recognize that in celebrating RBG we’re subscribing to a narrow version of white feminism approved by the institutions in power — the Ivy League, every white judge who ruled on a case Ginsburg worked on, the judicial branch, the presidents who nominate justices? That’s absolute belief in the powers that be. In other words, that’s overtly patriarchal. Maybe to succeed through the legal system enforced by these United States, you can’t be truly radical. Maybe, for that same reason, we should stop idolizing politicians — yes, even judges. In 2007, after former classmate Alice Vogel Stroh passed away, Ginsburg wrote a letter to Stroh’s daughters, writing that “if fate had run in [Stroh’s] favor, she would have been a jurist.” Fate, of course, and the approval of the establishment. f