We Need to Stop Treating Ruth Bader Ginsburg Like a Hero

Justice Ruth Bader Ginsburg

This past week marked the first anniversary of the death of Ruth Bader Ginsburg, which seems both like yesterday and a hundred years ago.  As is oftentimes the case for popular, recently-deceased figures, I saw tributes from a number of different politicians on Twitter in regard to RBG, and it made me want to look back at what I'd written for Ginsburg's obituary on this blog a year ago.  As a rule, I generally resist writing a lot of obituaries-I'm not someone who has met many of the figures that are involved in films, and so I only know them from the comfort of a living room or darkened theater.  I was surprised, though, to find instead of an obituary a think piece, trying to push off to another day a true obituary for Ginsburg as I was sorting through my feelings about her death, and a year later, I feel like I have landed on where I understand her legacy, and I don't think it's where many of these well-meaning tributes are placing their respect.

Ruth Bader Ginsburg was a pioneer, a woman who fought for women's rights.  She cofounded the Women's Rights Project at the ACLU, and repeatedly fought for women's rights in the Supreme Court.  She is almost certainly the most important female attorney in American history, and had a bigger hand in shaping the women's movement in the 1970's & 80's than virtually any other figure, certainly from a legal perspective.  Her time on the bench is striking as she was one of the most progressive figures on the Court.  We oftentimes lump the "liberal justices" together, but Ginsburg stands apart as perhaps the most liberal (give or take Sonia Sotomayor) of the past 25 years, frequently serving as the antithesis to her longtime friend Antonin Scalia.

Justice Ginsburg, for this, deserves the plaudits she got this past week, and in a different universe she would've deserved more of them, certainly from me.  But for powerful figures like Ginsburg, it's not just about what they did in life, but also the one decision she didn't make before she died.  Justice Ruth Bader Ginsburg died in 2020, weeks before the presidential election, and as a result was replaced by Donald Trump.  People die, and tragedy strikes-this is part of life.  But Ruth Bader Ginsburg had an opportunity to cement her legacy, and refused to do so.  

In 2014, the Democrats had control of both the White House (President Obama was in his second term) and the Senate (Harry Reid had a 55-seat majority).  It was clear that the 2016 election would be a difficult hold.  A Democrat had not handed off to another Democrat via an election (rather than a death) since 1856, and no two-term Democrat had done it since 1836.  Ginsburg in her lifetime had seen this.  She'd seen Lyndon Johnson's vice president lose to Richard Nixon.  She'd seen Bill Clinton's vice president lose to George W. Bush (she saw it intimately, in fact, through Bush vs. Gore).  She had to understand on some level that it would be a difficult hold in 2016 for the Democrats, and with an increasingly contentious Senate, she understood that the Democrats holding onto their majority beyond January 2015 was going to be a stretch.  Her fellow justices David Souter & John Paul Stevens had seen the coming problem, and had resigned rather than risk a situation where they be replaced by another Samuel Alito.  Ginsburg in 2014 was in her eighties, and had survived cancer (twice).  It was clear that trying to be nominated by a future president would be a risk-this was the time to make it happen.

Ginsburg didn't retire, though.  Her supporters have proclaimed she wanted to be replaced by a woman, but later public statements indicated that she was more buying into her own ego.  An interview with NPR in 2019 where Nina Totenberg asked why she hadn't stepped down she replied, cheekily "Who would you prefer on the Court rather than me?"  Some saw this as a case of badassery, but what it was was an indication that Ginsburg had succumbed to her impenetrable celebrity, ignoring the incredible risk she'd put all of the beliefs she supported into, and when she died, she confirmed some of our greatest fears about her-that she wasn't able to hold the fort long enough to ensure Donald Trump couldn't replace her with someone like Amy Coney Barrett.

For me, forever and always, Amy Coney Barrett will be Ruth Bader Ginsburg's legacy.  It's worth noting that Ginsburg nearly made it-had she lived a mere 124 more days she would've bought the liberals an extra seven years on the Court, being replaced by a Democratic POTUS/White House again.  Those seven years of clutched pearls from Democrats would be seen as a cagey maneuver, one last "Notorious RBG" meme for the internet to worship until the end of time.

But she didn't, and I think it's unfair to everyone who will have to suffer through the next 40 years of Barrett's time on the Court to dismiss Ginsburg's selfish stupidity.  She was a great lawyer, but her signature act was not retiring when she could, not only risking her entire legacy, but the lives of tens of millions of American women who counted on her for so long.  John Paul Stevens or David Souter decided that what they fought for was more important than them being the ones who got to lead the fight-Ginsburg didn't have that strength.  Ruth Bader Ginsburg is many things, some of them good, but it's time to stop stanning her because it encourages people like Stephen Breyer or Dianne Feinstein or Patrick Leahy to assume the same thing (that they are irreplaceable and more important than their cause when they should be retiring).  A year after she died, I am finally ready to say that Ruth Bader Ginsburg is at best complicated, but she is not a hero.  A hero is someone who understands that the most important thing is the cause, not themselves.  And that is surely not Ruth Bader Ginsburg.