After the passing of Justice Ruth Bader Ginsburg, the question of whether she will be replaced before the election has nearly overshadowed the tributes to her extraordinary life.
It is well known that Ginsburg, who died at age 87 after four bouts with cancer, was a feminist legal pioneer in the 1970s, leading an effort to dismantle laws that discriminated on the basis of gender. What’s less known is that the great jurist, who came of age in an era when female law students could still be berated for stealing a law school slot from a man, was also unafraid to go against feminism’s prevailing winds.
In February 2018, in a live-audience conversation with legal scholar and Atlantic contributing editor Jeffrey Rosen, Ginsburg addressed the #MeToo movement, which she praised for bringing issues of sexual harassment and sexual violence into the spotlight. Yet when Rosen asked her about balancing concern for victims with concern for the accused, Ginsburg’s response was sympathetic.
"The person who is accused has a right to defend herself or himself," she told Rosen. "There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system ... everyone deserves a fair hearing." She then reiterated that she believes the criticism of the college codes is valid — a marked difference from the standard feminist response of decrying such criticism as backlash.
Ginsburg’s respect for the presumption of innocence extended to her most controversial colleague, Justice Brett Kavanaugh, whose confirmation hearings in 2018 were marred by accusations of sexual assault in his youth. Last year, Ginsburg ruffled feathers by praising Kavanaugh at two public events — first giving him credit for hiring female law clerks, then referring to him and Donald Trump’s other appointee, Neil Gorsuch, as "very decent and very smart."
If Ginsburg’s collegiality with conservatives was notable, so was her sense of true equality and partnership with men. Her criticism of sexism never devolved into attacks on males. Indeed, some notable cases in which she challenged discriminatory laws as an attorney involved discrimination against men — for instance, widowers whose wives had been the primary breadwinners but who were denied Social Security benefits.
Obviously, Ginsburg believed that ending anti-male discrimination in those areas was good for women, affirming their roles as workers and breadwinners. Likewise, she was a strong advocate of equal parental leave for men, voicing the view that more father involvement in child-rearing was essential if women were to attain equality in the workplace. But her advocacy was also for fairness for both sexes.
And, as much as she supported strong protections against sexual harassment, she also wanted women to stand up for themselves — as she did in her own experience as a college student when a teaching assistant offered to her the questions for an upcoming exam with an implied expectation of favors. ("I confronted him and said, ‘How dare you do this?’" she recalled.)
There’s an even more inspirational "Notorious RBG" anecdote. A few days after Ginsburg was nominated to the Supreme Court, a member of a Rotary Club in New Jersey faxed her to apologize because, in an appearance at the club, a former law school classmate of hers jokingly mentioned knowing her by "her law school nickname, ‘Bitch.’" The letter writer said he had asked the club president to ban sexist statements at future meetings.
Instead of taking offense at the "microaggression," Ginsburg commented, "Better bitch than mouse."
Rest in peace, RBG. We could use more women like you.
Cathy Young is a contributing editor to Reason magazine.