The news came on the eve of Rosh Hashanah.
As I prepared to leave work and join friends for a joyous New Year’s Eve dinner, prayer and celebration, simultaneous texts rolled in – from my sister, sister-in-law, friends in New York City and Oakland – all of them women, many of them lawyers.
The words, “RIP, the Notorious RBG” hit me like a sucker punch, and I felt my stomach drop. I grasped for denial but the evidence of Justice Ginsburg’s terminal illness – pancreatic cancer, how many survive that? – was inescapable.
I closed my eyes and thought, of course you died on the eve of Rosh Hashanah, of course you did. Though I prayed fervently for you to hang on until January, it made perfect sense that you “slipped the mortal bounds” of Earth on this night. You, who had consecrated yourself to justice, are now a “tzadeikes,” a Judaic title given to a woman of supreme righteousness. That crown we placed on your head to announce your status as a cultural icon has been replaced, by virtue of your religious tradition, with the glow of a halo.
As I slid silently and subconsciously into a state of mourning, I believed that Justice Ginsburg’s death will be, in a year of infinite death, the definitive loss of 2020. For a country in as profound an existential crisis as America is now, the death of Justice Ginsburg seems to herald our swan song. I hope I am wrong.
All the women I know, including those who are not attorneys, are experiencing Justice Ginsburg’s death as a personal loss as well as the loss of our helmswoman. It’s as if in the midst of a swirling storm at sea, a giant wave has knocked off our masthead, challenging us to go forward without the safety of her navigational skills at our side.
How is it that one woman, one petite woman with a mighty intellect and a grit true to her Brooklyn roots became not just a role model, but a revered symbol of the struggle for women’s equality? The ironic answer is that she did so by challenging laws that discriminated against men on the basis of gender. Justice Ginsburg’s career prior to being confirmed for the United States Supreme Court created significant legal advances for women by fighting for the rights of men.
In the case famously portrayed in the film, On the Basis of Sex, she argued for the rights of a Colorado man who was his mother’s caretaker to receive a tax benefit routinely given to women caring for family members but which had been denied to him because of his gender. This legal jujitsu marked her brilliance. Rather than take on a woman plaintiff to upend the harms caused by laws that enshrined sexism, she took a law that favored women and used the Fourteenth Amendment’s Equal Protection Clause to show how unfairly discriminatory the law was toward men, thereby creating a Constitutional precedent that would necessarily have to apply to women in future analogous cases.
She used this same legal strategy a few years later when she represented a widower denied Social Security survivor benefits, which permitted widows but not widowers to collect special benefits if they still had minor children in their care. Again, using the Equal Protection Clause, she successfully argued that the statute discriminated against male survivors of working women by denying widowers the same benefits legally granted to widows. The precedents set in these cases were used in later cases to attack gender discrimination against women.
Justice Ginsburg’s work directly contributed to the United States Supreme Court implementing “intermediate scrutiny” – a legal term meaning a heightened standard of Constitutional review – in cases involving gender discrimination. With her tremendous legal acumen, her indefatigable work ethic and her wit, she slowly but surely eroded male incredulity that women jurists could think and write at least as competently as men.
During her Senate confirmation hearings, Justice Ginsburg, quoting Learned Hand stated, “the spirit of liberty . . . strives for a community where the least shall be heard and considered side by side with the greatest. I will keep that wisdom in the front of my mind as long as I am capable of judicial service.” The Senate confirmed Ginsburg by a vote of 96-3. Woe to those 3 for being so acutely on the wrong side of history.
Twenty-seven years ago, no one could have predicted that Justice Ginsburg’s passing would prompt the outpouring of sorrow and communal mourning that we have witnessed this weekend in front of the United States Supreme Court, and here in San Francisco at Harvey Milk Plaza. Women of all ages, race, ethnicity, religion and political persuasion are paying their respects and we are collectively in mourning. I for one am immensely grateful for the opportunity to have lived during her tenure on the Court, to have watched her rise to greatness through dissent after dissent, and to have drawn inspiration from her optimism that our Nation’s promise of equality for all was a dream worth pursuing but that it needed the concerted work of people devoted to justice.
“Zedek, zedek, tirdof” — “Justice, justice shall you pursue.” Amen, sister and Rest in Power.
Rebecca Young is senior trial attorney and managing attorney for collaborative and specialty courts in the San Francisco Public Defender’s Office.