Review of Conversations with RBG

 

Jeffrey Rosen. Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty and Law, with a new Afterward. New York: Picador/Henry Holt and Company, 2020 (2019). viii + 286 pp.

Reviewed by Norman Simms

 

After the death of Ruth Bader Ginsburg, her body was laid in state in the rotunda of the Supreme Court Building in Washington, DC. A female rabbi recited Kaddish for this outstanding woman of valour, so many firsts in the history of the United States, something I never expected to see and hear in my lifetime.  Just a few weeks before that, my wife and I watched the film On the Basis of Sex  (2018) based on RBG’s early legal career, from the time she entered Harvard School of Law until she argued her first case before the Supreme Court. Then I found this book in a local bookshop in Hamilton, New Zealand.  It seemed well worth a review. So let me begin.

Ruth Bader Ginsberg’s death in the closing months of 2020 led to the indecent haste with which her successor was appointed weeks before President Donald Trump was defeated in the national election of that year.  The funeral brought her role in the Supreme Court as an Associate Justice, and her influence on liberal and progressive thinking in the United States into the public eye as never before. Her death, which she herself hoped to put off for just a short while to save the country from the embarrassment that was inevitable with a politically-motivated appointment of Amy Coney Barrett , not just a conservative Catholic but who Umair Haque points out, “belong[s] to a religious cult with no separation between private and public life”,  and whose presence on the bench would not only certainly undo all RBG’s great work, most immediately with opposition to Roe v. Wade on abortion rights, the Obama Affordable Medical Care Act, and many other crucial, defining issues of modern America, but impede further  reforms in racial and social justice for generations to come. Unlike her successor, Amy Coney Barret, an avowed “Originalist” (that is, a strict literalist of the Constitution’s “original” intentions), RBG, in true Talmudic tradition, has always stood for a constant revisioning of the law to fit with changing circumstances and attitudes, maintaining bedrock principles while accommodating to the human and historical needs of persons appearing before the Supreme Court.

There are several passages in the book in which RBG takes up the concept of Originalism, and puts herself squarely into the camp of those who defend the intentions of the Founding Fathers, and she sees those basic principles of democracy, fairness and equality as fundamental to her philosophy of law.  On the one hand, for lawyers, legal pundits and others interested in history of the court system in the USA, there is much information to be gleaned. For those more interested in the personal, emotional side of RBG, the introductions and the chapters of conversation show her as a daughter, wife, mother and friend. She talks about how she was able to juggle being a mother and a law student, beginning clerk, lawyer and judge. In one anecdote, she is sitting at her desk studying, while one after another friends and relatives arrive to celebrate her birthday: and only after the room is full, does she realize anyone has come to see her.

In another series of anecdotes Rosen shows her tendency to argue in a rabbinic way, even though he or she doesn’t make mention of her Judaism or Jewish background. But the haymeshkeyt (homeliness and emotional intensity) is there nevertheless in her propensity to see clients, lawyers and judges as persons who deserve individual attention: she remembers who they are, what their backgrounds and private problems are, and she demonstrate real concern for them: remembering their birthdays, asking about recent illnesses, and offering private advice.

The other kind of Originalism seen in the voting of the newly appointed Justice Barrett is more inclined towards the Strict Constructionism of the Supreme Court in the early 1800s and then later in waves of conservative and reactionary states’ right (including the  post-Reconstructionist formation of Jim Crow laws) thinking that are anything but liberal. RBG sees herself as a judicial minimalist, to seek changes by small steps, allowing public opinion and legislatures to lead the way, and only stepping in when the fundamental principles of the Bill of Rights are under threat. Sometimes it seems that she has voted one way, only to go there then ten years later; but this because, she explains, the country has changed, i.e., ordinary people are and state legislatures are ready to act in ways they weren’t before.

While this little book is not a biography of RBG, many personal details of her early and middle life, her childhood and marriage, before she became a member of the Supreme Court, are given in an introduction and then an explanatory preface to each of the selections from conversations Jeffrey Rosen held with her. Rosen provides a context for the decisions taken by this outstanding woman jurist, not because they let us see into the legal workings of her mind, but because each of her decisions takes into account the real people involved in the arguments—and RBG is personally interested in them; and she will keep in contact for years afterwards.  Rather than work out political or social agendas and choosing her cases as part of an organized programme of reform, she waits for real men and women to work their way through the legal pathways towards justice, find themselves needing help out of constitutional entanglements, and helping them by getting to know their individual lives. When she discusses her written judgments, for the majority or the dissenting opinion, she always talks about these real people, many of whom become her friends, and with whom she keeps in contact over many years. In the years when she would argue cases before regional federal courts and then the Supreme Court itself, she also addressed herself to the reality of who the judges were. Her extensive knowledge of precedents and her careful choice of words and examples were harnessed to appeal to the human side of the panel of (usually all male) judges.

Usually a voice of calm cautious moderation, in the last few years of her service on the highest court in America RBG became much strident and aggressive, to the surprise of many, but she explained that it was not so she who had changed as the court.  The #MeToo movement has particularly spurred her on to be more of an activist than ever before. In more recent years, under Donald Trump’s presidency and his appointment of politically-motivated right-wing judges to the Supreme and other federal courts she has found that the new appointees were less concerned with due processes and loyalty to the Constitution. Therefore, even though she should have slowed down because of old age and sickness, she pushed herself into more strident positions.

After the fiasco Senate hearings for Kavanagh and Barrett, and after four years of Trump’s attack on the impartiality of the judiciary, as well as of the objectivity of the FBI, CIA, the Department of Justice and anyone in Washington who did not toe his line, it became evident that things were not normal. The sense of collegiality and friendly differences of opinion was fast slipping away. Everything that she had believed in and worked so hard to achieve might disappear very soon. The feisty little woman from Brooklyn more than ever became a powerful voice to be reckoned with.

The conversations in this book, then, are a record of the kind of brilliant mind we may not encounter again for a long time. It is good to remind ourselves that such people like RBG once lived, even in our own life times. She is more generous about Trump’s political appointees than most of her supporters would be, and seems quite optimistic in the last months when, on the one hand, she is suffering from cancer, and, on the other, watching court decisions come closer and closer to nullifying her reforms.

A special addendum has been added for the paperback edition, with the conversation between Rosen and RBG continuing right up to the final months of 2020 and the tumultuous close of Trump’s presidency.  The questions put to RBG become more personal and she reveals many          things about her private life, as well as going into more detail about her philosophy of law.  Though she plays down the importance of her contribution to Feminism in the last three decades, claiming she was lucky to be in the right place and at the right time to make her voice heard in major aspects of the movement, she does hint that she has fears that the main advances may be lost. She tries to take heart in the strong young women coming through to prominence, such as Malala and Greta Thunberg, along with a whole new cohort of female students passing through the prestigious law schools. She also recalls her mother’s advice: not to submit to negative thoughts and to be strategically hard of hearing when attacked by her peers and opponents.

If there is anything wrong with this book, it is that many passages are repeated: it is not just that they appear first in the introduction to each chapter and then again in the conversations that follow. Because the conversations are not given as whole units in themselves, but cut up into thematic bits and sewed together, certain sentences, even whole paragraphs are repeated several times—and even in the same chapter. It is also likely that in the course of their discussions over a number of years, RBG made the same points about important cases she argued for and against, as well as family anecdotes and comments on the operas she has heard. The repetitions, however, often occur in Rosen’s essays (and at the end of the book there is a long list of places where the published sources can be found). Better editing could have cleared up these difficulties, though Rosen is profuse in his thanks to relatives, friends and professional editors who helped him compile this book and give it the shape it now has. More work with a red pen and a sharp scissors might have made for a shorter, more compact text, yet that is something the publisher may have wished to avoid.  These caveats aside, I highly recommend this book.