Ruth Bader Ginsburg’s dying wish was that she “not be replaced until a new president is installed.” Despite well-founded cynicism in our government leaders, there is reason to be optimistic that her wish will come true, if we are willing to work for it — as she always was. Ginsburg’s brand of optimism was not one of blind faith. It was instead one of vision and purpose. You don’t spend your life working tirelessly to change a nation’s gender-equity laws without believing in its institutions.
With Senate Majority Leader Mitch McConnell already talking about confirming RBG’s successor, despite his refusal to consider an election-year nominee in 2016, it’s tempting to view government as nothing more than a cynical power grab to advance a political agenda. But Ginsburg’s life provides a reason for hope for better days ahead.
RBG cemented her legacy with achievements in gender equality, but no one accomplishes that kind of seismic change without a healthy dose of optimism. Only the second woman in history to rise to associate justice of the Supreme Court, Ginsburg made her mark as a lawyer in the 1970s by persuading the Court that the Equal Protection Clause of the 14th Amendment prohibited discrimination on the basis of sex. She crafted novel arguments using men as plaintiffs to demonstrate that even laws that facially benefited women were unconstitutional because they were based on harmful stereotypes. She said that gender laws that claimed to put women “on a pedestal” actually “kept them in a cage.” By removing arbitrary barriers between genders, Ginsburg’s advocacy improved equality for everyone.
She challenged laws that denied benefits to husbands of women in the military, that denied Social Security survivor benefits to men, and that denied boys the right to buy beer until they were 21, all while providing more beneficial treatment to their female counterparts. Her work led to the application of “intermediate scrutiny,” a heightened review of laws that draw legal distinctions based on gender.
Today, the laws she challenged seem ridiculous. But that’s only because of Ginsburg’s work. In the 1970s, her arguments were the things that must have seemed ridiculous. She had been born into a world that discriminated against women. Despite a stellar law-school record, Ginsburg was rejected from law-firm jobs and a Supreme Court clerkship because of her gender. Her intellectually curious mother, who died when Ginsburg was in high school, had been denied an opportunity for a college education. At the time of Ginsburg’s nomination to the Court in 1993, she paid tribute to her mother, stating, “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.” Ginsburg made it her life’s work to challenge laws that prevented women from reaching their full potential.
Some might even criticize Ginsburg as being too optimistic by remaining on the Court through the duration of the Obama administration despite several bouts of cancer and advancing age. Resigning during his term would have allowed the Democratic president to appoint her successor. In 2013, she said she planned to stay on the Court “as long as I can do the job full steam,” and she did not worry about who might choose her replacement. “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
Ginsburg said that fighting gender discrimination one case at a time was like “knitting a sweater.” It required patience and provided only incremental results, but it was necessary work to achieve her goal. “Real change, enduring change,” she said, “happens one step at a time.” Only someone who is an optimist could work tirelessly on cases for years in hopes of changing the system. It requires faith in those whose minds are closed to your perspective, and confidence that words exist that can persuade others to come around to your view. Even in dissenting opinions, Ginsburg played the long game: “The most effective dissent,” she once said, “spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.”
That same vision and purpose can be used to help our ailing democracy. Right now, it feels like we are in a battle for the very soul of our country. Americans on opposite sides of the political divide sometimes seem like warring factions. Dealing with enormous challenges like COVID-19, police brutality, climate change, and civil unrest seems impossible when we can’t even agree on whether we should wear masks to protect each other from a deadly virus.
If Mitch McConnell is successful in confirming a justice nominated by Trump, the makeup of the Court swings farther right, jeopardizing precedents like Roe v. Wade. But even more significantly, McConnell’s political opportunism threatens the legitimacy of the Court itself. If courts come to be seen as just one more instrument of a political machine, the law will lose its moral authority. When respect for the rule of law is eroded, it is difficult to expect compliance.
But just as Ginsburg patiently played the long game, optimistic that her words would one day resonate, those who are determined to defend American values have reason to believe that their work will be rewarded one day as well. What words can be found to persuade just four Senate Republicans that the hypocrisy of confirming a Supreme Court justice just weeks before a presidential election is not worth the result McConnell seeks? Let us channel Ginsburg to find them. For those senators who follow McConnell’s lead, what arguments can persuade the electorate that their gamesmanship must be defeated at the ballot box in November? Let’s replicate Ginsburg’s tireless energy to find them. And what words can we muster to persuade our fellow Americans that President Trump is not an ordinary Republican advancing conservative policies, but a threat to the continued existence of our democratic values? Ginsburg would keep working, arguing with collegiality and respect, even when others do not.
When working to persuade, “Don’t be distracted by emotions like anger, envy, resentment,” she once said. “These just zap energy and waste time.” With more urgency than ever, Americans must continue to work, and follow Ginsburg’s example, optimistic that we can save the country that she helped knit into a more perfect union.
