[Mother Jones] What the Cult of Ruth Bader Ginsburg Got Wrong

Critics such Linda Hirshman have accused the Notorious RBG of selfishness for not retiring under the Obama administration while she had a chance. "Now it may be too late."



https://www.motherjones.com/politic...uth-bader-ginsburg-rbg-got-wrong-obama-trump/

What the Cult of Ruth Bader Ginsburg Got Wrong
Fans defended her choice not to retire under President Obama. Now it may be too late.
STEPHANIE MENCIMER NOVEMBER 24, 2018 6:00 AM

On the Basis of Sex, a feature film on the pioneering legal work of Supreme Court Justice Ruth Bader Ginsburg, is due to roll out in theaters nationwide on Christmas Day. With Felicity Jones’ portrayal of Ginsburg as a hot, young ACLU lawyer, the canonization of “Notorious RGB” will be officially complete. The 85-year-old justice’s celebrity status as a badass feminist has never been higher. CNN, which earlier this year produced a Ginsburg documentary titled RBG, has declared her the “face of the resistance” against President Donald Trump’s agenda, and a new Ginsburg biography was published in October to coincide with the 25th anniversary of her confirmation. A retail store opened recently in Washington, DC, stocked almost exclusively with RBG merch: yoga mats, water bottles, T-shirts, action figures, magnets, and pins designed to look like Ginsburg’s lace “dissent collar.” The store is called The Outrage.

But no amount of swag or hagiography can obscure the fact that, while Ginsburg is responsible for a great number of landmark legal decisions, her legacy may be sorely tarnished by one truly terrible one: refusing to retire when President Barack Obama could have named her replacement. That decision came into stark relief this month when Ginsburg fell and broke three ribs—and half of the nation took a collective gasp. Women took to Twitter to offer the justice a rib.

Irin Carmon, a co-author of Ginsburg fan-book The Notorious RBG who is as responsible as anyone else for the contemporary Cult of Ginsburg, encouraged devotees not to freak out. Their hero is resilient, indestructible even, Carmon insisted. Ginsburg has survived cancer—twice!—and still has never missed a day on the bench. “I am not RBG’s doctor, but I am one of her biographers, here to testify to her resilience,” Carmon wrote inThe Cut. To reinforce her point, Carmon interviewed Bryant Johnson, Ginsburg’s longtime personal trainer, who said, “To all the stressed-out people in America, remember that the justice is TAN. Now, I always use that acronym: TAN. She’s tough as nails. You think three ribs are going to stop Justice?”

But Carmon and others who’ve helped turn Ginsburg into a pop-culture icon are deluding themselves. Ginsburg is a mere mortal. Falling down is the leading cause of accidental death in people over age 85. The actuarial table is not in her favor. There’s a real possibility Ginsburg will not outlast the Trump administration or live long enough for a Democrat to replace her. The situation today is one many liberal lawyers feared years ago and worked hard to avert. But the feisty justice rebuffed them all, a decision that makes all the hero worship hard for some of us to stomach.

The calls for Ginsburg to step down began in 2011 when Randall Kennedy, a Harvard law professor and former clerk to the late Thurgood Marshall, wrote a piece in The New Republic gently urging Ginsburg, then 78, to retire while Obama was in office. (He had suggested the same of Justice Stephen Breyer, now 80.) Kennedy was publicly airing private concerns among Democrats that it could be Ginsburg’s last chance to be replaced by a Democrat. “Justices Ginsburg and Breyer have enriched the nation with long, productive, admirable careers,” he wrote. “Those, like me, who admire their service might find it hard to hope that they will soon leave the Court—but service comes in many forms, including making way for others.”

Kennedy held up his old boss as a cautionary tale. Marshall’s health problems forced him to retire during the administration of George H.W. Bush, who replaced the legendary civil rights lawyer with Clarence Thomas, a conservative ideologue who has spent his 27 years on the bench working to unravel virtually everything Marshall fought for. “f Justice Ginsburg departs the Supreme Court with a Republican in the White House,” Kennedy wrote, “it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.”

Ginsburg declined the advice and might well have used the line deployed by Felicity Jones in a scene from On the Basis of Sex, wherein the young Ginsburg tells the ACLU’s legal director: “You don’t get to tell me when to quit.”

After Obama’s 2012 reelection, the Ginsburg retirement calls came with a new urgency. In December 2013, the National Journal ran a piece titled, Justice Ginsburg: Resign Already!, in which writer James Oliphant observed that the passage of Obamacare would likely hand Senate control to the Republicans in 2014, thus preventing Obama from naming a Ginsburg successor. His concerns were echoed by prominent liberal legal scholars, notably Erwin Chemerinsky, now dean of the University of California-Berkeley law school, who wrote in early 2014 in the Los Angeles Times, “I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993. But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor.”

In response to the retirement calls (mostly from men), Ginsburg gave an interview to the New York Times’ Adam Liptak laying out the reasons she planned to ignore them. “There will be a president after this one and I’m hopeful that that president will be a fine president,” she said. Ginsburg added that she planned to keep working “as long as I can do the job full steam.” The only evidence she could see that she’d slowed down by her age, she said, was that she’d given up water-skiing and horseback riding.

In retrospect, it doesn’t seem like a coincidence that the making of Notorious RBG happened at a time when many liberals were begging her to step down. The canonization began in 2013, after Ginsburg issued a furious dissent in Shelby County v. Holder, a case that gutted a big chunk of the Voting Rights Act. Inspired, New York University law student Shana Knizhnik launched a “Notorious R.B.G” Tumblr. The meme took off and ultimately led to a 2015 book, Notorious RBG: The Life and Times of Ruth Bader Ginsburg, which Knizhnik co-authored with fellow fangirl Carmon, then an MSNBC reporter.

Ginsburg has since been tattooed on women’s arms, immortalized in song and a children’s book, and featured on SNL. She’s had her face plastered on everything from tote bags to water bottles. This merchandising could not have happened without the justice’s blessing; the law gives her a fair amount of control over the use of her image, as she well knows. Rather than start copyright battles, Ginsburg has encouraged her cult following. She assisted Carmon and Knizhnik with their book, appeared in the CNN documentary and makes a cameo in On the Basis of Sex, carries an RBG tote bag in public, distributes RBG T-shirts to friends and admirers, and generally has reveled in her celebrity.

Perhaps the savviest element of Ginsburg’s pushback against calls for her retirement is the promotion of her workout regime. Details of it appear in Notorious RBG, and Ginsburg allowed the RBG documentary makers to film her doing pushups and tossing a medicine ball—proof, the film implies, that she is nowhere near death’s door.
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some would argue "Fortunately"