Notorious RBG: The Life and Times of Ruth Bader Ginsburg

Authors: Irin Carmon and Shana Knizhnik
Publisher: New York: Dey Street Books, 2015. 240p.
Reviewer: Jack E. Call | September 2016

The year 2015 was a big year for Ruth Bader Ginsburg. In addition to publication that year of Sisters in Law, a book that focuses on the lives of both Ginsburg and Sandra Day O’Connor, Notorious RBG was also published. Although the latter book focuses exclusively on Ginsburg, the reader is unlikely to learn much more of significance about the professional contributions of Ginsburg than would be learned from reading Sisters in Law. Nevertheless, for those who teach about the Supreme Court in their courses, this book is a valuable source of humorous and moving stories about Justice Ginsburg that humanize her and provide useful stories that can help hold the attention of students when discussing the individual Justices as a group, or when focusing on Justice Ginsburg in particular.

For example, it would appear that Justice Ginsburg is not much of a baseball fan, but Justice Alito (a well-known Philadelphia Phillies follower) is. During Alito’s first term on the Court, the justices’ clerks operated a fantasy baseball league, with a team operated by the clerks of each Justice. The week Justice Ginsburg’s clerks played Justice Alito’s clerks, the Ginsburg team soundly defeated the Alito team. The Ginsburg clerks urged Justice Ginsburg to write a memo to Alito, crowing a bit about their victory.

After asking her clerks to remind her again what fantasy baseball is, she agreed to write the memo. She told Justice Alito that “I understand that this week my clerks beat your team by a score of ten to nothing. We expect more, even from the junior justice.”

Another amusing story concerns a trip to the theater by Justice Ginsburg and her husband shortly after the Justice wrote a firm dissent in Bush v. Gore (the Court’s decision that essentially ended the 2000 presidential election). As the couple walked up the aisle during intermission, many members of the audience stood and applauded the justice (presumably in appreciation for her position in the case). Her husband, a professor of tax law at Georgetown Law School, turned to his wife and said, “I bet you didn’t know there was a convention of tax lawyers in town.”

An example of a moving story comes from the public remarks made by Justice Ginsburg when President Clinton introduced her as his first nominee for a vacancy on the Supreme Court. The justice-to-be concluded her remarks by recognizing her mother (who died the day before Justice Ginsburg’s high school graduation ceremony) as “the bravest and strongest person I have known…. I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.” Not only does this story serve to make Justice Ginsburg more real as a person, but it also serves to remind female students that the fight for equal opportunity for women is still a relatively recent and still incomplete battle.

Another moving story comes from Justice Ginsburg’s involvement in United States v. Virginia. She wrote the Court’s opinion, holding 7-1 that the Virginia Military Institute (a publicly supported university) could not exclude women. Shortly after the decision was announced, Ginsburg received a letter from a VMI graduate who applauded her decision because he believed many women were capable of fighting for their country and expressed a hope that his daughter would consider military service. A few months later, Ginsburg received another letter from the same man. His mother had just died and the envelope contained a toy soldier that she had given her son when he graduated from VMI. The man thought his mother would have wanted Justice Ginsburg to have it.

The “humanizing” of Justice Ginsburg (on whom, it can be said fairly, the national media does not spend much attention) is buttressed further by a chapter on her relationship with her husband, another on her relationship with her fellow justices and their clerks, and even a chapter on her daily workout routine. There can be no doubt that her marriage was based on an extraordinary relationship, one that demonstrates that there is no reason why two spouses who are both highly intelligent, well educated, and desirous of fulfilling careers cannot each realize their professional goals and also enjoy very meaningful family lives. The chapter on her relationship with her Court colleagues demonstrates again (as have several recent biographies of other justices) the surprising ability of the justices to maintain warm relationships with each other while holding and expressing in their written opinions sharply differing views on constitutional (and other legal) issues of paramount importance to the American public.

The frequency of the kinds of stories illustrated above and the attention given to aspects of Justice Ginsburg’s personal life should not suggest that her professional and historical contributions are overlooked. There is considerable discussion of the important role played by Ginsburg in developing the legal strategy utilized by the American Civil Liberty Union’s Women’s Rights Project to protect women from discrimination. This strategy emphasized the need to proceed incrementally, with small victories that could advance the cause of women’s rights without creating substantial public controversy. As the authors point out, one of Ginsburg’s primary concerns about the Court’s ground-breaking decision in Roe v. Wade was that it was too sweeping and would create too much public backlash. (Ginsburg also thought that the right to choose should be based on the Equal Protection Clause of the 14th Amendment, rather than a due process right to privacy).

The legal strategy adopted by Ginsburg (in conjunction with other lawyers at the ACLU) also included (ingeniously, some would say) an emphasis on the early selection of cases that involved discrimination against men. For example, in the early seventies, Ginsburg’s husband called to her attention a tax law that permitted women to take a tax deduction for expenses incurred to provide care for a parent so that the woman could work, but which did not permit men to take the same deduction (unless they were widowers or the husbands of incapacitated women). In another early case, a man who had been a “stay-at-home” dad while his wife worked (and paid into Social Security) was denied the death benefits that a woman would have received if her husband (who had been a Social Security participant) had died. Victories in cases like these – for men – facilitated the development of case law that was utilized to support the development of more case law that worked primarily to benefit women.

Considerable attention is also given to Justice Ginsburg’s growing frustration in recent years with the lack of respect for women’s (and other minorities’) rights demonstrated by a majority of the current justices. This frustration has manifested itself in her increasing willingness to read dissents from the bench when a decision unfavorable to the rights of women is announced by the Court. The practice of reading dissents is typically reserved by justices for those cases where a justice’s disagreement is especially strong, with the hope that it will draw more attention to the majority’s decision.

There are a number of unusual features to this book, no doubt in large part because the authors are millennials who are accustomed to conveying information in ways that differ from previous generations. Of course, the title itself demonstrates this fact. A friend of one of the authors reacted on Facebook to the Court’s decision in Shelby County v. Holder (a 2013 decision that eliminated the preclearance requirement for states that had historically discriminated against African-Americans in elections) by praising Justice Ginsburg for her dissent and referring to her as the Notorious R.B.G., an obvious reference to deceased rapper Notorious B.I.G. One of the authors used that reference to create a tribute to Ginsburg on Tumblr.

Chapter Two consists solely of a timeline (plus two cartoons) that begins in 1828 and combines milestones in both the movement for women’s rights and Justice Ginsburg’s own life. This is a very effective and efficient way to distill a large amount of information into a relatively small amount of space. The significance of many of the milestones is not explained, leaving it the reader to either infer the significance or do further research for other sources that explain the milestone in more detail. Depending on a reader’s perspective, this could be seen as either a criticism or a virtue of the timeline approach.

Another interesting feature of the book is the inclusion of several short excerpts from briefs or opinions written by Justice Ginsburg in important Supreme Court cases (usually sex discrimination cases). The excerpts were chosen to illustrate important legal concepts developed by Ginsburg. Critical aspects of the excerpt are highlighted with a marginal note explaining the significance of the highlighted portion. (Sometimes the notes were written by a law professor whose assistance was enlisted by the authors). The format used to present the notes creates a feeling of hand-written notes. This is another efficient way of demonstrating the importance of the language used or arguments developed by Ginsburg without getting into a deep law journal kind of discussion of complicated legal ideas.

And then there are the unique appendices at the end of the book. The first appendix discusses personal traits of Justice Ginsburg, usually through her own comments. The second appendix is her favorite recipe of her husband, Marty. (We learn in Chapter 6 that Marty cooked the family meals. His renown as a chef was so great that the Supreme Court Historical Society published a book of his recipes. A family friend referred to Marty’s recipes as “the edible version of the Internal Revenue Code”). Another appendix contains the lyrics of a hip-hop song written about The Notorious R.B.G. entitled “R. B. Juicy.” (The song is apparently available only on YouTube). The next appendix is an excerpt from the lyrics of an opera written about the Ginsburg/Scalia friendship (that included a deep mutual love of opera). The last appendix is a montage of cartoon and pictorial depictions of Justice Ginsburg. If the reader possessed any lingering doubts about whether this book was intended to be an academic work, the appendices should resolve those doubts.

There are some shortcomings to this book, perhaps as a result of the authors’ desire not to produce an academic work. The writing is a little choppy at times. The connections between sections and even paragraphs are sometimes unclear, especially the discussion of constitutional issues.

In one important instance, the authors appear to get a significant constitutional issue wrong. The authors rightly emphasize that one of Ginsburg’s goals, both as a litigator and as a justice, was to convince the Supreme Court to apply the strict scrutiny test in sex discrimination cases. The strict scrutiny test is applied in cases involving suspect classifications (such as race) and fundamental rights (such as free speech). In cases where the government has acted so as to affect a suspect class or infringe upon a fundamental right, the action is constitutional only if the government can show that its action was justified by a compelling state interest and that the action was the least restrictive alternative available to the government. Application of the strict scrutiny test makes it very difficult for the government to justify its action.

The authors strongly imply that the Court’s decision in the VMI case adopted the position that strict scrutiny applies to sex discrimination cases. However, constitutional scholars largely agree that the Court uses an “intermediate scrutiny” test in these cases. That test only requires the government to demonstrate that its action is justified by an important government interest and is substantially related to achievement of that interest. Whether the authors actually think that the Court adopted the strict scrutiny test for sex discrimination cases in the VMI case is unclear and should have been clarified for the reader.

Sometimes the authors’ order or placement of facts is odd. For example, there is a section of the chapter about Ginsburg’s marriage devoted to Marty Ginsburg’s culinary skills and his status as family chef. However, it is not until four pages later, in another section of the chapter, that the reader is made aware that the Supreme Court Historical Society published a book of Marty’s recipes, entitled Chef Supreme.

Ruth Bader Ginsburg is a figure of great significance in our nation’s history. If this book was the only biography of her life, there would be a crying need for something more substantial. Fortunately, other such works already exist and more are certain to come. For the more casual follower of the Supreme Court, Notorious RBG serves a very useful purpose.

References

Bush v. Gore, 531 U.S. 98 (2000).
Hirshman, L. (2015). Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. New York: Harper.
Roe v. Wade, 410 U.S. 113 (1973)
Shelby County v. Holder, 557 U.S. 193 (2013)
United States v. Virginia, 518 U.S. 515 (1996) 

Jack E. Call, Professor of Criminal Justice, Radford University