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.