What Was Ruth Bader Ginsburg Like in Person?
(And some thoughts on Roe v. Wade and judicial restraint)
If Justice Scalia was at a party or reception, you knew it at the moment you walked in. You’d hear and see him from a long way away, describing some turkey hunt or poker game. But RBG could only be found the way scientists detect a black hole, by the observation of her gravitational effect. You’d see a huge beehive of people gathered around some invisible object, and there’d she be, in the middle, with a group gathered around as if seeking wisdom from a shrine. They were usually bent over, as if in worship, heads inclined to hear what she had to say. They were like that because of the first thing that would strike anyone: just how physically tiny she was.
At such receptions, Justices like Stephen Breyer or Clarence Thomas were happy and at ease, naturals at cocktail conversation. But RBG was not like that. At all. She projected a sort of awkward energy that would paralyze people in her vicinity. Maybe it was because she was who she was, but she seemed to consider that to be our problem, not hers; for whatever reason she had no particularly strong interest in setting others at ease.
Perhaps it was the pauses that made her listeners nervous. RBG would, while making some argument or telling a story, sometimes pause, apparently in mid-sentence. You didn’t quite know if she was done, and sometimes people would look around to see if something was wrong. But there she would remain, like a sphinx or an owl, unmoving and inscrutable. Then, right when the silence was becoming unbearable, when you thought someone had to say something, well that’s when she’d restart, sometimes barreling right through a hapless interrupter.
She was quite demanding of those who worked for her. I remember that she forced her clerks to comb through the record and find factual support for everything that was in the opinion, as one does for a legal brief. Perhaps it stemmed from her career in litigation; certainly the clerks in her chambers were under a lot of pressure.
I remember visiting those chambers once for a tea. There was a picture of her and Scalia riding an elephant in India, and biscotti baked by Marty Ginsburg. The tea was a thoughtful thing to do, and it was not hurried nor rushed, indeed it went on quite a long time. There were many of the famous pauses during that tea, some of them quite extended. It was so quiet during the pauses that one could hear clerks nervously sipping their tea and the sound of cups meeting saucers. (Later in life, when I read of the formal salons that Louis Brandeis used to hold, attended by Learned Hand , I was reminded of Ginsburg’s teas.)
It was during that same tea that Ginsburg discussed with us her view, close to blasphemy on the left, that abortion had been handled poorly in the 1970s and that Roe v. Wade had taken the wrong approach. It wasn’t that she didn’t believe women needed access to abortions. Rather, she felt that Roe v. Wade had been too abrupt and too undemocratic, engendering an angry, lasting resistance and planting seeds of revenge. She contrasted abortion with divorce, which had also been illegal and highly controversial at one point, yet had been legalized on a state-by-state basis and eventually become a normalized part of life, through a gradual, democratic process.
At the time, I was working hard on one of the partial-birth abortion cases, and as a clerk I distinctly remember adding a cite to Roe v. Wade to the opinion. To hear RBG say she thought Roe might have been a mistake was shocking. But, given who she was, there was a sense that she was the only one who could have said it, the only one who could deliver a warning of the perils of the anti-democratic path.
Today, her warning about the dangers of side-stepping majoritarian democracy need to be heard. Liberals and progressives spent the later parts of the 20th century not overly concerned about majoritarian rule, only to find ourselves, now, on the losing end of that equation. We live in a country whose President was not elected by a majority, and who seeks to buttress a counter-majoritarian Court with conservatives who have taken up constitutional activism with enthusiasm.
Both liberal and conservative Justices and scholars are very good at coming up with reasons to justify the Court’s overriding of majoritarian institutions. Yet each time we break from the principles of democratic rule to get something we want, there is a price to be paid. It still might be worth it, still might be the right thing to do, when it comes to protecting fundamental rights. But as RBG suggested, that’s no reason to minimize the costs.
So while Ruth Bader Ginsburg is remembered and celebrated for her devotion to the advance of equality and justice, we should remember that she was wise in how she approached her goals. She knew that life is long, that the larger battle was rarely about winning of any single case, and that incrementalism is not the same thing as weakness; it was, after all, a river that carved the Grand Canyon. RBG’s life is a testament to that kind of strong incrementalism, the hydraulic power of changing consciousness, evolving norms, and the sort of progress that lasts.
