Episode 138: A New Look at RBG [Transcript]
Narration is in in bold.
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Nahanni Rous: Hi, it's Nahanni Rous. Welcome back to Can We Talk?, the podcast of the Jewish Women's Archive, where gender, history, and Jewish culture meet.
If you like thoughtful conversations about politics, culture, leadership, and Jewish identity, here's another podcast I think you'll appreciate: Identity Crisis from the Shalom Hartman Institute.
Each week, host Yehuda Kurtzer brings moral rigor and genuine curiosity to the biggest questions facing Jewish life. Yehuda sits down with a wide range of guests—authors like Sarah Hurwitz and Dara Horn, or Rukhl Schaechter, editor of the Yiddish Forward. They talk through the big questions around Jewish life and identity today.
Identity Crisis doesn't rush to easy answers, but creates space to talk about the most pressing issues of this Jewish moment, like leadership and responsibility in polarized times, Israel and the Jewish people, and free speech. If you're looking for a podcast that presents deep conversations about the essential issues facing Jewish life, check out Identity Crisis with Yehuda Kurtzer wherever you get your podcasts.
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Now, on to the show.
Michelle Azar (as Ruth Bader Ginsburg): We are part of a world whose unity has been completely shattered. No one can feel free from danger until the threads of civilization are bound together again.
Nahanni: That's Michelle Azar reciting a line from All Things Equal, a one-woman show about the late Supreme Court Justice Ruth Bader Ginsburg. She began performing as RBG just a couple years after Ginsburg died.
Michelle: Those first couple months, it was just a joy fest. Everybody was so, so joyous to hear her and see her. You know, I just had to sit there and have the big, beautiful glasses and speak the speech, and they just wanted to imbue me—they wanted to feel that I was her.
Nahanni: This spring, the show is on tour again, and audience reactions have become more complicated.
Michelle: Prior to the show, people will say, "I'll come, but I'm angry…" "I liked her, but..." You know, it's, "I'm really still mad at her, but..."
Nahanni: People blame Justice Ginsburg for everything from Trump's re-election to the overturning of Roe versus Wade to the downfall of democracy. In character as RBG, Michelle tries to address the elephant in the room.
Michelle: So I say, "I know some people say I should have resigned years ago. I don't blame you for being upset with me." So I really come out and say it. "But with the confirmation process being so political in this divisive climate, I felt I should wait until after Hillary Clinton took office."
Nahanni: Justice Ginsburg lived to see herself proven wrong about Hillary Clinton's election, but not long enough to see Roe v. Wade overturned.
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It's been five-and-a-half years since Justice Ginsburg died—years of upheaval in the government and in the Supreme Court. In this episode of Can We Talk?, we're taking a new look at RBG's legacy. Should she have retired earlier? Is anger at her justified? And what should she be remembered for?
Legal analyst and Supreme Court scholar Dahlia Lithwick joins us to sort this all out. Dahlia is a senior editor at Slate and host of Amicus, Slate's podcast about the Supreme Court. She has written extensively about Justice Ginsburg, and the justice, in turn, followed Dahlia's writing—at one point she referred to it as "spicy." Dahlia was the last journalist to interview the justice before she died.
Ruth Bader Ginsburg was appointed to the Supreme Court by President Clinton in 1993. She was only the second woman to serve on the court. Just days after she died in September 2020, President Trump nominated Amy Coney Barrett to fill her seat.
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Dahlia Lithwick: I mean, in some sense, I think there's a part of her that would have been really, you know, delighted that there were now four women at the court. But of course, you know, the Venn diagram of what Justice Ginsburg believed and what Barrett believed is pretty far apart. And I think probably no one would have been in some sense more existentially wounded than Justice Ginsburg at the idea that you swap a woman for a woman and it's the same, right?
I think that, you know, she knew that was a party trick. That wasn't a real thing. But I think she always felt that we will have reached some kind of good point where not all the women on the court are liberals, you know? I think that because I think that that would have been a marker of, you know, we're getting to a place where we don't essentialize.
But I don't want to overstate the degree to which I think Justice Ginsburg, you know, watching her legacy be systematically undone, you know, on issue after issue after issue by Justice Barrett—I mean, I think it would just be a wound, and maybe a double wound because it's a woman, and maybe a triple wound because it's a mother who strongly identifies as, you know, singularly female in the world, a mother and a working mother and an adoptive mother— all the things that, you know, RBG might have held up as, like "This is what makes us different."
So I think watching her legacy, you know, vanish in the course of a couple of years would be beyond painful. But I guess I've been sort of reflecting on this. I think in a very weird way, RBG has always resisted the kind of cartoonish stories we tell about [her], right?
So there's two stories about RBG—there's only two that we allow. One is the "I have the throw pillow, I have the earrings, I have the mug, " right? Like, "I bought the book. I bought the other book"—you know, "My daughter dressed up as her [for] Halloween." The complete unreconstructed hagiography that, you know, was well-meaning—we needed heroines—but it was like this thick, right? It wasn't from a place of deep reckoning with what she had tried to do in her decades as a lawyer and as a judge. It was just, we need heroes, and here's Wonder Woman, and here's RBG, and, you know, here's Michelle Obama. And I think that's one story we told.
And then the flip of that story is, "And then she failed to retire when she should've, and, you know, curses be upon her, she destroyed democracy single-handedly," which is equally cartoonish and silly, right?
I mean, both of those are incredibly childlike ways of looking at a fully realized, complicated jurist. And I think it's a thing that I thought about a lot at the time. You know, I just always felt like, "Why are we reducing her to angel-devil?" It's a weird, you know, this is how we think about women—
Nahanni: Well, there's something very gendered about that.
Dahlia: Yes. And so I think, now we're sitting in, you know, the thermonuclear aftershock of having seen her in these really cartoonish ways. And I think that in a strange way, but for the very, very simple binary of "She was the greatest feminist in the history of the world"—She really wasn't, right? Her feminist legacy is complicated—"She's the biggest villain. She's the only reason that the court flipped." That's also wrong.
Nahanni: Okay, so let's take the first part of what you said. You said it's wrong to think that she's the greatest feminist hero ever. So why do you say that?
Dahlia: I mean, there's so many parts of her legacy that were incrementalist, that were institutionalist. There were—you know, famously her critique of Roe, which was weaponized against her.
Nahanni: Well, let's just explain that. I mean, she thought that Roe was argued on the wrong—or on the basis of something that wouldn't hold up, right? She thought that it should be based on gender equality and not on patient privacy.
Dahlia: Right. I mean, she essentially felt that they backed the wrong horse, right? That they could have done this on equal protection. And she deeply believed that if you were going to do it on the basis of bodily autonomy and privacy, you just didn't have a rich constitutional backing, and that it would be—as prophetically was true—easy to just say, "That's not really a right. It's not really enshrined in the Constitution."
So she would have done it on the basis of equality. And I think she also felt—again, we forget, and this is, you know, directly responsive to your question—we forget that most women's groups opposed RBG's confirmation to the Supreme Court.
Nahanni: Right.
Dahlia: Most women's groups thought she was way too vanilla, way too middle-of-the-road. She had been critical of Roe. And so I think that there's a story that we want to tell about her as this kind of bra-burning feminist icon that is nowhere in evidence in her entire lifetime. She wasn't that generation of feminist.
Nahanni: She really believed in civility—
Dahlia: She believed in civility. She believed in institutions.
Nahanni: Mm-hmm.
Dahlia: So I think that, you know, part of the hagiography that I'm trying to slightly dismantle for you is that if you set her up as Gloria Steinem, she fails. And she did, on her own terms, in case after case—you know, Lilly Ledbetter and Hobby Lobby—in case after case after case, she is the clarion voice for women and for women's rights and equality. But she was in no way a sort of rabid feminist trailblazer. And I think sometimes the movies and the, you know, the quickie kind of Bazooka comic versions of her get that wrong.
And then, you know, her legacy is complicated in terms of how many clerks of color she hired, right? Her law clerks tended to be overwhelmingly white. You know, she was many, many things, but the idea that she was a radical visionary is simply not accurate. And I think the women's rights groups that opposed her at her confirmation and thought she was way, way, way too mincing and incrementalist for what the women's movement needed at the time, came away at the end of her career saying, like, "Hey, she turned out to be pretty great for women."
But I don't think anyone would say that what she was doing within the narrow confines of the law was explosive or trailblazing. She just, as a pragmatist, said, "I think if we root, you know, women's reproductive rights in the idea that you have privacy and bodily autonomy, I think you're going to lose. We would be tactically smarter to root it in equal protection of the law."
Nahanni: And do you think that she turned out to be right?
Dahlia: I mean, the cynic in me says they would've overturned Roe whatever ground it was planted in. It was—you know, that was a 50-year project. Justices were seated on that project alone. I don't believe for a minute that the majority that overturned Roe in Dobbs would have broken a sweat to do it no matter what it was rooted in.
But I do think that she really, in this sense, misjudged how fragile it all was. I don't think she had any sense that it could be gone in 10 years. I mean, I didn't think it could be gone in 10 years. And I think in that sense, you know, she was a hell of a tactician when it came to the sort of narrow confines of the law itself, but I don't think she fully understood—I could be wrong—the sort of extra- legal, extra-judicial forces at work that, regardless of judicial qualifications, regardless of—you know, there's an open seat, we're not going to seat Merrick Garland.
Nahanni: Right.
Dahlia: That's—those are not judicial questions. That's just power, and I'm not sure she'd bargained for that.
Nahanni: And she also thought that Hillary Clinton was going to win the 2016 election and would appoint a liberal justice to replace her should she resign. So that is one of the reasons that she didn't resign earlier.
Dahlia: Look, this is the other side of the hero/devil story. And, you know, to this day, when I give speeches, somebody throws their hand up and is like, "It's all her fault. None of this would have ha—We wouldn't have Trump, and we wouldn't—Obama would still be president, and, like, we'd have the Voting Rights Act, right?" [Nahanni laughs]. So, like, I think there is a tendency, you know, to want to vilify her completely.
And yes, she hugely miscalculated. I mean, part of it is, she did feel strongly, and she said this publicly, like, "I don't think I could be replaced with someone like me." Right? Every single justice that has retired, I think with almost no exception, has been replaced by someone either somewhat to their right or far to their right.
Nahanni: Huh.
Dahlia: So by that token, I think she was pretty convinced that someone like her could never get confirmed again.
Nahanni: Even dur- even if it was, I mean, and maybe especially if it was an Obama appointee, the Republicans were already very dug in at that point.
Dahlia: Yeah. No, I think she felt strongly, like they would not seat somebody who would continue her legacy.
I do think—this is just anecdotal on my part—there is a really strong gender story to why she didn't want to retire.
Nahanni: Oh, yeah. Let's talk about that.
Dahlia: It's to me utterly fascinating, and this is a little bit inside baseball, but really interesting to me, is that she watched her dear friend and sort of sister-in-law, to use Linda Hirshman's construction, Sandra Day O'Connor, get pushed off the court for very gendered reasons, right?
Sandra Day O'Connor goes to Chief Justice Rehnquist and says, "Look, my husband is getting increasingly sick. I need to retire to take care of him." A, No male justice ever retires to take care of their spouse. B, Rehnquist, who is dying of thyroid cancer at that point, says, "We can't have two retirements in one year. So I'm going to go next year. You go this year." She said, "I need another term." She's at the peak of her powers. She's the swing justice. He says, "You go now. I go next year. Then we don't have two vacancies in one summer to replace," right? And she says yes. So she leaves the court before she's ready.
Sad coda, within a year, her husband is institutionalized. She's not taking care of him. She goes on to watch her entire legacy dismantled in front of her eyes, and Justice Rehnquist dies immediately after she retires, so we have two confirmations in the span of a year.
So Ginsburg's watching all this happen. She watched somebody who was at the peak of her powers get pushed off the court, and I think she dug in and said, "I'm not getting pushed. I will go when I'm ready." And it was a horrific miscalculation, but I think that had she not watched that happen, I'm not sure that she would've dug in.
In my view, we would've had the court we have anyway. And I think that the world has changed so fundamentally from the world she thought she lived in the year she died, that tagging her with that feels unfair to me.
Nahanni: There's a line in Michelle Azar's one-woman show where she, in character as RBG, says that the court has succeeded in staying above politics. And apparently when she performs that line now, it elicits a wave of gasps from the audience [both laugh]. You know? Do you think that people still believe in the dignity of the Supreme Court?
Dahlia: I mean, polling suggests they do not, right? We've seen the numbers of public confidence and trust in the court have plummeted.
You know, one of the things that would've broken her heart is that the court as an institution, right, doesn't have an army, doesn't have a budget, doesn't have—"neither the purse nor the sword," as the Federalist Papers put it. They have public confidence. It's the only currency they have.
And I think the other thing that would break her heart is the incivility at the court. I mean, you said it. This was her watchword. I think all of that would've been very, very disheartening to her, because I think she really believed that in addition to not being political, the court had an affirmative obligation to model [that] this is how grownups do decision-making. You know, we look at the briefs, we look at the arguments, we read the footnotes, but we don't just go after each other or, you know, vote the way our politics tells us.
And I think that it's not just a matter of the court looking political. Clearly that train has left the station. But I think it's the court looking mean and small and childish, and the justices irrevocably destroying relationships with one another. I think that would pain her almost as much.
Nahanni: What are the consequences of that erosion of public confidence?
Dahlia: It's not a given that the American people believe in the Supreme Court. It is capital that the court built over centuries, without power. In some sense, you know, this sort of 250-year experiment with constitutional democracy relies entirely on people saying that if the court makes a decision, that is what we do, and I don't know that the public believes that anymore.
I'm not sure that this institution is as immutable and untouchable as we once believed. And I just think you can kind of jump the shark into a world where the court issues a decision and the president just says, "Nah, not gonna do it." By some measures, we've already jumped into that world, and it will happen imperceptibly, but you can't get it back.
And so if you're a person like me, or like RBG, who believes you can't actually have a constitutional democracy without functioning courts, if you have a public that says, "This court is a joke"—you can't really have constitutional democracy at all.
Nahanni: What do you think Justice Ginsburg should be remembered for?
Dahlia: So I think about this all the time, too. I mean, first of all, I think she really believed—and in a sense this was probably the most Jewish thing about her—she really believed that the obligation of the law was to see the outsider. She really, deep in her bones, was of the view that there is simply no way to have a just and equal society with dignity and with profound regard for differences without equality in the law, and that drove everything she was, everything she said.
Nahanni: And do you mean gender equality?
Dahlia: I mean all equality. I mean LGBTQ, I mean racial equality. At every single level—she grew up, right, and she was very open about this, in the slipstream of two things. One, the Holocaust, which very much informed her worldview, right? Refugees were being resettled all around her, and she...That was in her bones and in her memory, that humans are capable of this, and it could happen again. And but for the rule of law, it will happen again.
The other thing that she grew up with was signs posted when she would go on road trips with her family that said, "No dogs, no Jews" in the United States, right? That also deeply, deeply shaped her view of the world and of, you know, how she thought about her work at the courts. And I think that the notion that the law has this essential role to play in making the invisible visible—and again, it's a paradox, right? She was very much a creature of great privilege, and she knew that about herself, but she really lived on this seam between being an insider and an outsider.
And so I think this, kind of, "I have reached the pinnacle of achievement, and yet I'm aware that I was barely allowed in the club, and that there are so many people just like me who are not allowed in the club on the basis of wealth, religion, race, gender, what have you," that I think she always thought that it was the justice system's job to serve that.
And then I think—and this is my deep reading of what I think she was trying to do, whether she achieved it or not— and it's a little bit radical, but I believe it to my bones, and she talked about this. And I remember, by the way, having conversations with her when I was pregnant, and I was like, "This is so hard, and da, da, da, da, and I didn't sign up to be a mom and also covering the court and da, da, da."
And she, you know, she asked what my husband was doing, and I was like, "You know, he's taking a couple years off to raise the kids." And she was like, "Good, good, good!" Because for her, it was only going to be a better world, not just if women achieved parity, but if men achieved parity. Like, she deeply, deeply, deeply believed that if men could have fully realized moral, spiritual lives, and they could, if they wanted to stay home, stay home with the kids, that would be awesome. And that's what she was shooting for.
And I think she knew, by the way, that that was not happening, but I do think this kind of beautiful "rising tide lifts all boats" thing is very, very, very much what her kind of dream and hope was, and I also think we're getting further and further from it.
Nahanni: Yeah. We talked a lot about how we turned her into this icon and this meme. First of all, why do we do that, and what's damaging about doing that? Or what, on the other hand, could maybe serve her memory and her legacy?
Dahlia: I mean, I think—listen, capitalism gonna capitalism, right? Like, I think in some sense we just live in a world where it's too easy to, you know, buy the coffee table book and, you know, buy the hat, and I think that when you commodify someone's complicated legacy, the good news is, there's a whole generation of young girls who knows who RBG is, and that's great!
But I think that, A, it sets you up for this, "I love you I love you I hate you you're dead to me," kind of way of being in the world. Which is how we treat, you know, Kamala Harris and, I mean, we—it's just, I don't think it's a healthy way to do democracy. And then I think more pointedly—and in some sense, I wrote a book about this—but I think more pointedly, it absolves us of the possibility of being part of the solution, because we think if we just buy the earrings, we're doing the work.
And again, she loved the fame. I don't want to suggest for one second she didn't love being a rock star. And, you know, toward the end of her life, she's like, "Oh my God, they all want to talk to me. They all want to take a picture with me." Like, she loved that. I'm not going to downplay it. But I think she also really was deeply aware that she stood on the shoulders of a lot of invisible women.
And, you know, in one of her really most important briefs she ever wrote in a case, she cited—she put Pauli Murray's name on the brief. And for folks who don't know who Pauli Murray was, Pauli Murray was this, incredibly—you wanna talk about a radical—legal architect of essentially what became the holding in Brown versus Board of Education, you know, doing away with desegregation.
And Pauli Murray is one of those people that could have been, should have been, a legal icon in the country, but for the fact that Pauli Murray was gender non-conforming, Pauli Murray was, you know, born Black at a time when it was just impossible to get into any of the schools that RBG got into.
And so in this brief, RBG puts Pauli Murray's name on the brief, even though Pauli Murray didn't write it, as a way of signaling, and she would always say, "I stand on the shoulders of so many women who came before me who are not treated as icons."
And I think in that sense, one of the RBG legacies we get wrong—and this is just to your question about the harms of it—it means that, "Well, I guess I can't be RBG, so I won't do anything," right? Or, "I'll just wait till the next election and try to vote." And I think what RBG would say is, "No, be the Pauli Murray." Like, be the person who history has all but forgotten, who was just out there every single day putting skin in the game of fighting for democracy.
And so what I take from RBG's life—and every single time she spoke, she would name-check these people that, you know, she felt really seeded the ground for the work that she did. And I think in that sense, this anti-hero, or that the heroes are everywhere around you, you just don't know their names yet, and oh, you could be one of them, is not just what I think of as part of her vision, but I think it's part of the legacy we need to really, really embrace right now. Nobody's coming to save us, but you know who could? Me!
And I think that idea is very, very much in tension with the "I'm just going to fall in love with somebody until I get mad at them" way that we are interacting with our heroes right now.
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Nahanni: Dahlia Lithwick is a senior editor at Slate and host of Slate's podcast, Amicus, about law and the Supreme Court. She's the author of Lady Justice: Women, the Law, and the Battle to Save America.
At the beginning of the show, you also heard from Michelle Azar, who will be performing as Ruth Bader Ginsburg in All Things Equal in cities across the country this spring. The schedule is at scottstander.com/rbg. Check out JWA's entry on Ruth Bader Ginsburg in the Shalvi Hyman Encyclopedia of Jewish Women at jwa.org. You can also listen to the Can We Talk? episode RBG in Her Own Words that Judith and I recorded shortly after Justice Ginsburg died.
Thank you for joining us for Can We Talk?, the podcast of the Jewish Women's Archive. Our team includes Jen Richler and Judith Rosenbaum. Our theme music is by Girls in Trouble. Find us online at jwa.org/canwetalk, or wherever you get your podcasts.
I'm Nahanni Rous, wishing everyone who celebrates a Chag Pesach Sameach. Until next time.
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