RBG and how to save a corrosive political culture
U.S. Supreme Court Justice Ruth Bader Ginsburg, who died on Sept. 18—the eve of Rosh Hashanah—at the age of 87 was a symbol of female empowerment, as well as a renowned scholar and jurist.
The U.S. Supreme Court in 2010. Top row (from left): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito and Associate Justice Elena Kagan. Bottom row (from left): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy and Associate Justice Ruth Bader Ginsburg.
Though not religious, she was a proud Jew and her achievements as an attorney in an era where women were not fully accepted in the legal profession and then as a principled judge justify the many laudatory eulogies about her.
But Ginsburg’s status as a pop-culture icon and idol of liberals, feminists and others, who nicknamed her the “Notorious RBG” after a rap star, made her known popularly in a way no other American judge has ever been. As such, the possibility that President Donald Trump, whom Ginsburg’s many fans detest, naming her successor has added more fuel to the fire of a political conflict that already seemed more like a tribal culture war than a presidential election. But rather than succumb to the temptation to treat political differences as proof of evil, we should be learning from her to embrace our opponents as fellow humans without giving up our principles.
By the time she passed away, Ginsburg had since ceased being merely an honoured female pioneer or the intellectual leader of the high court’s liberal faction, as well as an admirable role model for Jewish women and girls. The transformation of a deeply serious and cultured judge into a badass culture-war figure gave her significance that transcended the legal battlefields where she had laboured. “RBG” inspired “I dissent” T-shirts, coffee mugs, bobblehead dolls, action figures, colouring books and a character on “SNL” played by Kate McKinnon was a symbol of the “resistance” to political conservatives in general and Trump in particular.
Conservatives like the late U.S. Supreme Court Justice Antonin Scalia believed that the original intent of the framers should dictate how the Constitution should be interpreted. Ginsburg upheld the liberal tradition that took a more activist view of the Constitution as a living document that could change in order to justify what she considered necessary changes.
A secular saint of the political left, her sudden passing has further inflamed divisions in American society. Those who claim to venerate her memory are now threatening to “burn it all down” if Republicans are able to confirm a conservative successor to Ginsburg. Others are threatening to pack the court with liberals should Democrats gain control of the government next year (something Ginsburg specifically opposed) to gain revenge for ignoring what her granddaughter reportedly said was her dying wish to be replaced by the next president, whom she likely hoped would be former Vice President Joe Biden.
There’s plenty of hypocrisy on both sides of the argument about the future of the court. Due to the way Congress has abdicated its responsibilities, the court is the only effective check on the growth of the administrative state controlled by the executive branch. In effect, it is the super-legislature that has more to say about the disposition of key issues than the other branches of government. That struggle to control the court is therefore a life-and-death affair for both parties.
And it has turned Ginsburg’s death into one more excuse for Americans to attack and demonize each other. But it doesn’t have to be that way, and Ginsburg’s own life provides an example of how to return to treating opponents as fellow human beings we can respect and like, even when we disagree with them.
One of the most inspiring stories about Ginsburg is about friendship, not legal combat.
Scalia, whose death in 2016 triggered a previous court controversy, was Ginsburg’s conservative counterpart. Like her, his opinions were intellectual and often fiery critiques of what he considered the flawed thinking of colleagues. On the most contentious issues that divide Americans, Scalia and Ginsburg stood on opposite sides.
In the political culture of America in 2020, such disagreements have become the moral equivalent of religious war in which compromise or even mutual respect is impossible. That’s not how Scalia and Ginsburg looked at it.
The two served as colleagues on the prestigious federal Court of Appeals for the District of Columbia Circuit and were eventually reunited on the Supreme Court. On both benches, they jousted on a host of cases, with neither of them sparing each other’s positions from scorn in their opinions.
And yet, they were also close personal friends.
The two shared a love of opera, which they often attended together. Indeed, their friendship was immortalized in a comic opera called “Scalia v. Ginsburg.” They also loved food, and along with their spouses, shared meals and even travelled together. While their personalities were different—Scalia was more voluble and Ginsburg more reserved—their respect and affection for each other were never in question. No case, no matter how contentious, ever came between them.
How did they do it? And how can society emulate their example?
The answer comes not just from the nobility of spirit that both embodied, but from mutual values that transcended ideological differences. They could care about each other while also disagreeing because of a shared morality.
In his new book titled Morality, Rabbi Jonathan Sachs, former chief rabbi of the United Kingdom and the Commonwealth, explains that people act in this manner because they see themselves “as part of the same framework of virtues and values, rules and responsibilities, codes and customs, conventions and constraints.”
As Sachs points out, “morality achieves something almost miraculous, and fundamental to human achievement and liberty. It creates trust. It means that to the extent that we are part of the same moral community, we can work together without constantly being on guard against violence, betrayal, exploitation or deception. The stronger the bonds of community, the more powerful the force of trust, and the more we can achieve together.”
This is a powerful lesson that those two judges, each revered by their own side of the political divide, understand intuitively.
The trouble with all too many Americans right now—on both the right and the left—is that they are so drenched with hatred of political opponents that they no longer see them as part of the same community. Those who view things differently are foes not merely to be defeated, but to be delegitimized and destroyed.
Scalia and Ginsburg taught us that we can still be friends while strongly disagreeing with each other. Engaging in civil discourse between left and right may no longer seem possible. Being willing to agree to disagree, and to respect each other’s opinions and credit each other with good motives, has gone out of style with unknowable consequences for the future of American democracy.
We can learn from the two judges that civility and mutual respect don’t require agreement as much as commonalities at the core. Instead of using Ginsburg’s death as an excuse to make these divisions worse with threats and insults, we should be remembering her example and stop demonizing our opponents. May both their memories be for a blessing.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.
