For women in law, 'RBG' is their superhero movie

A long line at a movie theater on a Friday night tends be a sign of the latest superhero movie. The people lining up at the Santikos Bijou theater in San Antonio Friday night may not have entirely disagreed.

Several of them were dressed in costumes, after all. But instead of a mask, cape, or Hulk Hands, they were wearing paper gold crowns and black judge’s robes with jabots.

They were lining up for a special sold-out screening of “RBG,” a documentary by Betsy West and Julie Cohen about Supreme Court Justice Ruth Bader Ginsburg.

“Everyone loves a hero story,” says Justice Rebecca Martinez, who serves on the Texas Fourth Court of Appeals here and organized the screening. Some 30 percent of the tickets went to high school students, so they could see the documentary for free.

“We have the rights we have now because of the strides she made under her jurisprudence,” adds Justice Martinez, speaking before the screening wearing a black robe and a gold jabot.

The crowd that night constitutes a fraction of the millions of admirers Ginsburg has attracted in recent years. Her impassioned dissents, and an increased awareness of her early work as a lawyer fighting gender discrimination, have transformed her from sober Supreme Court justice to a celebrity, cultural icon, and meme. To a younger generation of court watchers in particular, she is not just the second female justice in the high court’s history, but also “the Notorious RBG,” a fire-spitting (from the bench) progressive warrior playfully equated to the 1990s gangster rapper Notorious B.I.G. (Both are Brooklyn natives, as Ginsburg has pointed out.)

There are those who wince, however, at the coffee mugs, key rings, and snarky T-shirts, and who feel uncomfortable with the hero-worship and cult of personality – and its undeniable partisan roots – of someone who is supposed to represent the least political branch of government. Even some legal experts who are enjoying her relatively newfound cult of celebrity acknowledge that, in terms of progressive bona fides, the myth of “the Notorious RBG” doesn’t quite match up to the reality of Ginsburg herself.

She is by no means the first justice to achieve celebrity status. Justice Antonin Scalia, her right-wing foil and good friend on the high court, enjoyed a similar popularity among conservatives before his death in 2016. (Scalia bobbleheads were highly coveted – and hard to come by.) But they both represent “the emergence of justices as symbolic political figures, and indeed ideological figures,” says David Garrow, an expert in Supreme Court history and author of “Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade.”

“With both of them, it has such an explicitly ideological, explicitly partisan emphasis to it,” he adds. “I think to have purposely partisan-identified justices does huge damage to the court.”

Indeed, until the 1980s it was rare for justices to speak in public, and it was even rarer for anyone to pay attention to them when they did. Justice Hugo Black gave an interview on CBS in 1968, for example, but because he was broadcast opposite a program with movie star Brigitte Bardot “it went largely unnoticed by the general public.” The “RBG” documentary, meanwhile, cracked the top 10 in the box office over the weekend after opening in just 180 theaters.

The documentary plays on her celebrity persona, with “The Bullpen” by rapper Dessa playing over shots of Ginsburg working out, before diving into the life of the retiring woman who was one of only nine women in the class of 1959 at Harvard Law School. Ginsburg made law review her second year, while caring for a baby daughter and her husband, who had been diagnosed with cancer. She transferred to Columbia when he became a tax attorney in New York. Marty Ginsburg later returned the favor, cooking dinner for the kids every night and leaving his job to follow Ruth to D.C. when she was appointed to the federal bench.

Finding her voice in dissent

The “Notorious RBG” persona does have explicitly partisan roots, roots that only took hold after she had already spent 12 years on the Supreme Court.

After a trailblazing legal career in which she co-founded the American Civil Liberties Union’s Women’s Rights Project and argued for gender equality as a lawyer – winning five of the six cases she argued before the Supreme Court – Ginsburg surprised some observers when she remained a quiet presence on the high court in her first years there.

It wasn’t until around the mid-2000s – after Justice Sandra Day O’Connor, the court’s first female justice, retired – that she became more outspoken. Her dissent in the Lily Ledbetter fair pay case in 2007 is marked by Linda Greenhouse of The New York Times as the moment Ginsburg “found her voice, and used it.”

It was her dissent in the 2013 Hobby Lobby case – in which the court ruled, 5-to-4, that private companies can refuse on religious grounds to provide contraceptive care to their employees – that cemented her status as a youth icon. 

That dissent, Slate’s Dahlia Lithwick wrote in 2015, “became a cri de coeur popularized in viral Facebook memes and a tribute song. Notorious R.B.G., crown and all, became the face of female employees in Hobby Lobby, and female workers everywhere whose bosses’ religious preferences might trump their right to birth control.”

Ginsburg is enjoying her popularity, by several accounts. (She has “quite a large supply” of Notorious RBG t-shirts, she told NPR’s Nina Totenberg, and she hands them out to friends.) But while Ginsburg may be the most well-known and popular Supreme Court justice, at least on the left, in reality she is – at least on some issues – one of the court’s more moderate voices.

“She’s publicly aligned as the most liberal [justice], but any law review article will show you she’s much more moderate,” says Tracy Thomas, a professor at the University of Akron School of Law who criticized Ginsburg last year for her opinion in a case ruling that until Congress legislates otherwise, the foreign-born child of an unwed American mother or father can be eligible for US citizenship only if the parent had five years of physical presence in the US, striking down an exception that had required unwed mothers to only have one year of physical presence. (The decision stripped the plaintiff of his citizenship.)

“I think some of her reverence for [due] process and deference to the Congress is kind of naive politically,” adds Professor Thomas. “She can write a nice opinion on equality, but if nothing happens for the litigants, it’s the opposite of what she used to do” as a lawyer.

An irony of the “Notorious RBG” phenomenon, experts note, is that Ginsburg has always embodied a more old-school activism – a commitment to litigating instead of protesting. “Marching and demonstrating wasn’t Ruth’s thing,” her biographer, Wendy W. Williams, points out in the documentary. Ginsburg instead favored incremental change through litigation, which was how the civil rights movement achieved some of its great successes. She’s repeatedly described as reserved and quiet in the film, and cites her mother’s advice to act like a lady.

Criticism for public remarks

As her celebrity has grown, she has also been criticized for some of her public comments. Two years ago, some of her supporters were surprised when she dismissed NFL quarterback Colin Kaepernick’s protests against police brutality as “dumb”. She later apologized.

Not long after, she told The New York Times: “I can’t imagine what the country would be with Donald Trump as our president.” Days later she doubled down, calling candidate Mr. Trump “a faker” with “an ego” and “no consistency about him.” The comments led to Mr. Trump calling for her to resign, and others to call for her to recuse herself from Supreme Court cases involving President Trump. Ginsburg apologized the same week, calling her remarks “ill-advised.”

But not only has she not recused herself from Trump-related cases – including the travel ban case the court heard this term – but she skipped his first State of the Union address, an event every justice traditionally attends. She instead spoke at Roger Williams University School of Law in Rhode Island, discussing her fears that the federal judiciary could start to be seen as another political branch of government.

Cult of judicial worship

Given how outspoken and sometimes flamboyant past justices like Justice Scalia and Chief Justice William Rehnquist – who designed black robes with four gold stripes on each sleeve, a nod to Gilbert and Sullivan, for presiding over the Clinton impeachment hearings – have been, some see the critique of Ginsburg’s conduct as a gendered one.

“The cult of judicial worship is not limited to Ruth Bader Ginsburg,” says Bridget Crawford, a professor at Pace Law School in White Plains, N.Y., and a curator of the Feminist Law Professors Blog. “It’s getting the most attention because she’s a woman, and we’ve taken for granted in the past the hero worship that’s been done with men.”

“Why has it developed? Because the left is looking for heroes, and there are so few who merit that status,” she adds.

At the San Antonio documentary screening, Salena Santibanez echoed this sentiment.

“She is an icon, and an icon to us all as women,” she said, adding that she likes Ginsburg’s “tenacity, and her ganas,” a Spanish word for “giving 100 percent.”

Professors Crawford and Thomas both enjoy the attention Ginsburg is receiving. Crawford has a Ginsburg pennant in her office, while Thomas “loves” that Ginsburg is “the only justice” her high school-age daughter knows. But they also believe she shouldn’t be immune from criticism.

“You can have a hero, but blindly worshiping that hero from any point on the political spectrum is never advisable,” Crawford says. “That means you’ve yielded your critical reasoning to someone else’s cult of personality, and that’s not positive in a democracy.”