In India, we are not used to public outpourings of grief at the demise of judges. The passing of a judge is marked by respectful tributes, usually from the bar and bench, editorials celebrating the judge’s career, and perhaps a memorial lecture that attempts to preserve their legacy.
We might wonder, then, at the overwhelming sadness with which the news of US Supreme Court Justice Ruth Bader Ginsburg’s death at the age of 87 has been met. This is partially explained by the fundamentally different nature of judicial appointments in the United States and the intensely political role in which judges are cast.
Justice Ginsburg believed her very life to be a bulwark against the liberty-eroding machine of the Trump administration. Days before her death, she told her granddaughter that it was her fervent wish not to be replaced until a new President was installed. Apart from this, however, what is also being mourned is the loss of a feminist icon, an exemplary judge who demonstrated the power of incremental legal change, and one of the last bastions of collegiality in a hyper-polarised age. These are lessons that have resonance across the world today. She continues to be a wise teacher even in death, as her remarkable life gives us the opportunity to reflect on effective ways of protecting human rights.
In her later years, Justice Ginsburg became something of an international cultural icon — the Internet abounds with RBG memes and Tumblrs, children want to dress up like her on Halloween, and she has even inspired an action figure (Wrath Hover Ginsbot) on The Cartoon Network.
AS they describe the phenomenon that is Justice Ginsburg, writers Irin Carmon and Shana Knizhnik, in their book, The Notorious RBG (another affectionate moniker inspired by the late rapper, Notorious B.I.G.), give us an insight into a life that stands out for its decency, integrity, and fearlessness.
When the Dean of Harvard Law School asked Justice Ginsburg how she could justify taking the place of a man as a female student, she gave a timid answer about wanting to be a sympathetic and understanding wife to her husband, also a lawyer. Justice Ginsburg has come a long way since then as an anti-discrimination advocate and champion of equality on the Supreme Court. Her life work, however, continued to carry traces of her self-effacing answer to the Dean — a determination to rock the boat in the overwhelmingly male bastion of the law, but quietly, one case at a time.
This is evident in some of the most successful cases that she litigated as part of the Women’s Rights Project of the American Civil Liberties Union. Several of these cases involved male plaintiffs or involved the denial of rights to men — the denial of benefits to the husband of a female air force lieutenant because military spouses were expected to be women (Frontiero v Richardson), the denial of tax deductions to a single man looking after his elderly mother because deductions were granted only to women or widowers who were assumed to have caregiving functions, not unmarried men (Commissioner of Internal Revenue v Moritz), and reportedly, one of her favourite cases, the denial of “mother’s benefits” to a single father whose wife had died in childbirth (Weinberger v Wiesenfeld).
While taking on these cases might have angered some of her more vocal female colleagues, Justice Ginsburg continued to believe that cases like this were crucial in moving towards a ‘policy of neutrality’, one that would not confine men or women to the traditional roles that were expected of them.
She applied this policy of neutrality to herself as well. Carmon and Kzihnik write that in notes Justice Ginsburg wrote to herself while applying for judicial posts as an appeals court judge, she recorded, “I very much want to be considered on the basis of whatever merit I have, not on the basis of sex.”
Yet, no one understood better than her how women were discriminated against on the basis of sex. Her opinion in United States v Virginia, where she struck down the male-only admissions policy of the Virginia Military Institute, is a shining example of this. She was also quick to defend her fellow judge, Justice Sonia Sotomayor when she was intensely criticised for her statement that the richness of her experience as a Latina woman might allow her to reach a better conclusion in most cases than a white man.
One of us (Ruma Pal J.) had the privilege of meeting her when she visited the Supreme Court of India in the 90s. Justice Ginsburg was quiet and observant speaking only when needed. Like all good judges, she let her judgments do the talking. And that is what she will be remembered for.
(Justice Ruma Pal is a former Supreme Court judge and Dhvani Mehta is a co-founder of Vidhi Centre For Legal Policy)