The Notorious RBG Is Gone, But Her Fight Continues

March 28, 2021   •   By Dan Friedman

Justice, Justice, Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union

Ruth Bader Ginsburg

BY VESTING ITS legitimacy in its people and launching itself on an unending struggle for an ever “more perfect Union,” the United States of America has inspired the world for 245 years.

Its aspirational power is such that, despite a legacy of slavery and racism, institutional misogyny, endemic inequity, systemic bigotry, and the long-term occupation and taxation of territories without the enfranchisement of their residents, America continues to be a beacon of hope for scores of countries, generations of would-be immigrants, and even its own citizens.

Few people have done as much to bring the actual lived experience of the US closer to the ideals for which it stands as the late associate justice of the Supreme Court, Ruth Bader Ginsburg. Her new book — her first posthumous one — bears testament to a particular aspect of her work. Ginsburg and her collaborator, Berkeley Law professor Amanda L. Tyler, stress the ongoing struggle involved in extending liberty and justice for all.

Ginsburg changed how women are seen. She didn’t do it on her own, and she didn’t do it like Wonder Woman with one toss of a magic lasso. Instead, in the decades from Moritz to Ledbetter, she did it by literally changing the way the law sees women. Tyler clerked for Ginsburg in 1999 and between the two of them, they have concocted a compelling case for American civics.

Ginsburg’s surprising cult status as “The Notorious RBG” came without any dilution of her beliefs or actions, and Justice, Justice Thou Shalt Pursue remains true to that vision. Although Ginsburg’s death means that the book includes a few added remarks about the associate justice’s life and achievements, the compilation remains substantively the one that Tyler and Ginsburg prepared together — a series of primary texts illustrating Ginsburg’s fight for women’s rights. Finished scant weeks before Ginsburg’s death in 2020, Justice, Justice is intended as an illustration of a particular set of achievements as a focused example of how the words of the founders remain a clarion call.

Her elevation to cultural icon came as a result of a series of blistering dissents on behalf of the minority, including the lesser used mode of bench announcements. In excoriating the majority for its decision in the landmark Shelby County v. Holder case, which gutted the 1965 Voting Rights Act, Ginsburg accused those justices of having acted against Congress and having betrayed Reverend Dr. Martin Luther King Jr.: “‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”

Although embodied by substantive legal arguments, Ginsburg’s astonishment and indignation is equally apparent in the bench announcement and dissent in Burwell v. Hobby Lobby (2014), which allows for-profit corporations to affirm religious views in order to discriminate against their employees on the basis of gender and religion.

These dissents and bench announcements are collected here in full, but Justice, Justice is structured around more than just reprints of famous opinions. After the text of the Herma Hill Kay Memorial Lecture and the transcript of the subsequent stage conversation between the two authors, Justice, Justice moves through three sets of selected primary texts: Ginsburg’s arguments in advocacy before she joined the Supreme Court; Ginsburg’s opinions as an associate justice of the Court; and three short speeches by Ginsburg in the last four years of her life. Some of the texts are previously unpublished — like court papers — while others have been publicly available for years. By compiling them, Tyler and Ginsburg tell a story of a particular achievement among her many.

Ginsburg’s work in reshaping the concept of women in the United States is incredible — and almost unthinkably recent. Her friend Herma Hill Kay testified to her achievements in that area when Ginsburg was nominated for the Supreme Court in 1993, and Ginsburg returned the favor in Berkeley Law’s inaugural 2019 lecture in Kay’s honor. Both transcripts are collected here.

In the past 50 years, Ginsburg, Kay, and a series of loosely affiliated groups have transformed the legal treatment of women from one where the law made a series of gendered assumptions to one in which the only assumption is personhood. They were part of a generation that turned a group almost totally unrepresented in the legal profession to nearly 40 percent of lawyers, including almost half of the Supreme Court.

It is telling that this collection contains a number of dissents which are, by definition, interim losses while it includes briefs for neither Reed v. Reed nor Craig v. Boren, which were successful applications of the Equal Protection Clause. While marking certain setbacks, and while there are significant gestures to the wider struggle for progress, this collection illustrates how, to borrow the famous wording from Reed v. Reed, legal choices in the US “may not lawfully be mandated solely on the basis of sex.”

And as Ginsburg and Tyler stress, the fight for gender equality is also a fight for men’s rights. In Charles E. Moritz v. Commissioner of Internal Revenue, Ruth Bader Ginsburg and her husband Marty Ginsburg successfully argued together for the rights of Charles Moritz to receive a tax deduction as a carer for his parent, which he would have received were he a daughter and not a son. The trouble comes when justice presumes to decide differently for different persons.

Fair and equal treatment for women means fair and equal treatment for members of both sexes. The fundamental principles of American democracy reflected in constitutional guarantees of due process and equal protection apply to all persons, a class in which men and women share full membership.

In Frontiero v. Richardson, Ginsburg argued that the dependant’s allowance for a military spouse should be the same regardless of gender. Sharron Frontiero’s husband’s allowance was smaller than similar allowances for military wives, leading Ginsburg and the ACLU Women’s Rights Project to argue in their brief that “amicus urges the Court to declare sex a suspect criterion.” With characteristically elegant bluntness, the amicus brief ends by quoting a historical figure.

In asking the Court to declare sex a suspect criterion amicus, urges a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

This rhetorical force and appeal to history is typical of Ginsburg’s legal writing. Ginsburg famously had Nabokov as a teacher as an undergraduate at Cornell, and she talked about learning from him the power of words. Although Tyler prefaces some of Ginsburg’s texts with context and explanation, the precision and power of the carefully written texts speak eloquently, evidentially, and effectively for themselves. Although it can be obscured by the forms of address and methods of adducing evidence required by these legal submissions, Ginsburg is a forceful stylist.

At the end of her clear and substantive dissent in Ledbetter v. Goodyear, in which the Court denied the plaintiff any practical way of litigating her unfair pay, Ginsburg called upon Congress to take up the baton: “Once again, the ball is in Congress’ court. […] [T]he Legislature may act to correct this Court’s parsimonious reading of Title VII.”

And, in 2009, The Lilly Ledbetter Fair Pay Act was indeed signed into law as the first bill ratified by President Barack Obama.

For Ginsburg, this was a win. No argument is lost in a struggle that continues long after the publication of a dissent. From co-writing Moritz with her husband to her famously good relationship with Associate Justice Antonin Scalia on the opposite end of the political spectrum, Ginsburg demonstrates time and again that law is a social project requiring assiduous teamwork. Even her dissents are not individual rants, but rather calculated interventions in an ongoing struggle that she or others can take to the next stage.

This ethical obligation is reflected in the book’s title. It comes from a biblical quotation that Tyler testifies hung on a wall in Ginsburg’s chambers. “Justice, justice thou shalt pursue” (Deuteronomy 16:20) is regularly quoted — in the English or Hebrew (Tzedek, tzedek tirdof) — in American Reform Jewish circles as the quintessential biblical ethical obligation. This seems to be how Ginsburg meant it for her wall hanging. Tyler uses it, however, as a pun: “Justice” can address the associate justice herself, and the second “justice” is the concept she will pursue. Connecting the pun to the subtitle makes it clear that Ginsburg’s life’s work as a justice was in service of biblical justice as well as the perfection of the Union.

No matter her obstacles with regard to her gender, grief, or illness, Ginsburg was compelled by her “steadfast commitment” to the Union to see the moral universe bend toward justice in a number of ways, and this book, indeed her entire life’s work, suggests the alternative, complementary, Jewish teaching from Pirkei Avot (2:21), “You are not obligated to complete the work, but neither are you free to desist from it.”

Ginsburg’s final selection in the book is a short speech she gave to 31 new Americans at a naturalization ceremony in December 2018. Ginsburg concentrates on the opportunities afforded to citizens of the country where her father arrived at age 13, speaking no English. These opportunities come about because, as she quotes Alexis de Tocqueville “[t]he greatness of America lies not in being more enlightened than other nation[s], but rather in her ability to repair her faults.” As citizens shoulder their civic responsibility to perfect the Union, progress is made. Ginsburg leads up to quoting Judge Learned Hand’s conception of the spirit of liberty by explaining that, “Over the course of our history, people left out at the beginning, — people held in human bondage, native Americans’ and half the population, women, came to be embraced as full citizens.”

But being a citizen involves responsibility — for these new citizens just as much as for the other 330 million. Her final words resound through history: “May the spirit of liberty, as Judge Hand explained it, be your beacon. May you have the conscience and courage to act in accord with that high ideal as you play your part in helping to achieve a more perfect Union.”


Dan Friedman is the director of content and communications at the Shalom Hartman Institute of North America.