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Let Justice Ginsburg be not the pinnacle, but the base of the transformation we need

While it is a common belief that racism is an outside force acting to derail justice, racism is central to the American (in)justice system.

Anna Forringer-Beal
13 October 2020, 12.09pm
The late Justice Ruth Bader Ginsburg lies in state in the Capitol in Washington, DC. September 25, 2020.
Erin Schaff/PA. All rights reserved.

Justice Ruth Bader Ginsburg (RBG) is one of the most influential feminist icons of our time. Her meticulously laid strategy to lead the American legal system towards gender equality has secured the rights – and the hearts – of many people. Her image is familiar from books, merchandise, documentaries, and the award-winning film, On the Basis of Sex. And the outpouring of respect for the Justice, both during her life and after her passing, reflects the immeasurable advances she brought to people living within the US legal system.

The life of Justice Ginsburg is to be celebrated, but we must also be wary of a particular strand of hero worship that risks placing her on a pedestal as the ideal feminist leader. At a time when America is experiencing a monumental shift towards racial justice, it is essential to critically examine the legacy that Justice Ginsburg adhered to, which was one of incremental change. We must be able to both honor her accomplishments and find ways to advance her goal of equality – even if this requires us to operate outside the institutions she regarded as essential.

Justice Ginsburg is not without her critics. Her incrementalist approach to changing sexist laws was one which she learned from her own hero, Justice Thurgood Marshall. It was Justice Ginsburg’s goal to construct an iron-clad protection of women’s rights through the careful positioning of a series of cases affirming sex-based equality. As the co-founder of the Women’s Rights Project at the ACLU and while sitting on the Washington D.C. circuit appeals court, Justice Ginsburg presided over many successes advancing this strategy.

However, there are two drawbacks to this approach. First, it takes time. While the cases are being litigated, people’s lives continue to be subject to unfair practices. Second, the strategy functions within a legal system that was built to discriminate against BIPOC (Black, Indigenous, and people of color) in the United States. Turning that system against itself is incredibly difficult.

Critical race theory

Critical race theory (CRT), a discipline founded by Black feminist legal scholars like Kimberlé Crenshaw and Angela P. Harris, is premised on the fact that structural racism is intrinsic to the American legal system. While it is a common belief that racism is an outside force acting to derail justice, CRT demonstrates how racism is central to the American (in)justice system. The absence of an indictment for Breonna Taylor's murder is only a recent example in a long history of Black Americans’ rights being ignored under the law. And working within an inherently racist system to fight for equality risks upholding discriminatory policies.

Indeed this was the case in Justice Ginsburg’s ruling on Sherrill v. Oneida Indian Nation (2005). In this often critiqued case, Justice Ginsburg wrote the majority opinion denying the Oneida Nation the ability to buy back sovereign land that was taken from them illegally in the early 1800s. In her opinion, she wrote, federal law would, “preclude the Tribe from rekindling embers of sovereignty that long ago grew cold."

Her opinion supports the idea that Native American tribal sovereignty is a thing of the past, which cannot be restored. Freezing Native Americans in time contributes to the dismissal of contemporary epidemics facing tribes, like the COVID pandemic or the plight of Missing and Murdered Indigenous Women (#MMIW). But for a judge committed to changing the American legal institution from the inside, that meant working within its boundaries – even if the framework was originally drafted to favor white settlers.

Another example is when Justice Ginsburg called Colin Kaepernick’s protest against the national anthem, “really dumb” and “stupid”. Although she later apologized for her statement, the damage was done. She appeared dismissive of activists who were calling for structural change to the very legal systems she defended.

As more Americans push for police and prison abolition, a practice of dismantling the racist systems CRT identifies while building new transformative practices, it is all the more important for supporters of Notorious RBG to recognize the limits of her institutional activism. This is especially true for white Americans who benefit from the legal systems she worked within.

She appeared dismissive of activists who were calling for structural change to the very legal systems she defended.

White women

There are critics who assert that Justice Ginsburg exclusively advanced the interests of white women. However, applying the label of white feminist to Justice Ginsburg glosses over her record of advocating for racial justice alongside gender discrimination.

For example, Ruth Bader Ginsburg and Brenda Feigen at the Women’s Rights Project submitted a complaint on behalf of Nial Ruth Cox in 1973, a Black woman who had been subject to North Carolina’s sterilization program when she was 18 years old. In the complaint, Ginsburg and Feigen laid out a comprehensive picture of Cox’s life leading to the sterilization. This included a discussion of the interlocking systems of power that interfered with Cox’s liberty. From county officials checking in on welfare recipients to the doctors diagnosing Cox as mentally deficient without a medical test, Cox’s experience was the product of multiple layers of oppression. While the courts found this case to be moot, the experience of forced sterilization is still relevant today given the forced hysterectomies in ICE detention centers reported by Dawn Wooten in the same week as Justice Ginsburg’s death.

Heavily influenced by queer Black legal scholar Pauli Murray, Justice Ginsburg also set out an argument in Reed v. Reed (1971) that captured how sexist classifications under the law worked to reinforce sexist beliefs. Later on, Justice Ginsburg would draw on similar socio-legal reasoning in her now famous dissent for Shelby County v. Holder (2013) defending the Voting Rights Act.

Calling her a white feminist also overlooks her experiences as a Jewish woman, which led to her understanding aspects of the intersectional discrimination that a white Anglo-Saxon protestant woman could not. As biographer Jane Sherron De Hart noted, the very first time Ginsburg argued in front of the Supreme Court, Justice Harry Blackmun put a “J” for “Jew” next to her name. Justice Ginsburg herself remarked that when looking for a job after graduating law school that, “To be a woman, a Jew, and a mother to boot – that combination was a bit too much”.

Justice Ginsburg had a complex relationship with white feminism and the whiteness of the institutions she upheld.

Justice Ginsburg had a complex relationship with white feminism and the whiteness of the institutions she upheld. Her choice to work within a system for change connotes the privilege of knowing she could enter that system to begin with – although this was even questionable for white women in 1956. In addition to brandishing an institutional activism that leaves white systems of power enact, her admirers or “the tote-bag version of R.B.G. fandom”, have not always taken an intersectional approach. It is not uncommon on social media to see someone touting RBG paraphernalia but then remaining silent or opposing the BLM movement.

Every person’s human rights

These complex shortcomings show that we need to reexamine our reverence for institutional activism as the only method to create a more equitable world. There is value in abolitionist movements that draw on restorative and transformative justice practices to create change. Our reflections on Justice Ginsburg’s life offer an opportunity to push ourselves further towards a bold vision of equality and justice.

But we risk losing that if we hoist her onto a pedestal, untouchable by the people she worked to represent. As Nicole Young reflects, “there’s a feeling that her work is somehow the pinnacle and not the base from which we should be transforming our legal system.” By starting with Justice Ginsburg's trailblazing platform, we can continue working towards an America where every person’s human rights are respected.

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