To understand the liberal worldview, the contrived campaign to make Supreme Court Justice Ruth Bader Ginsburg into some kind of a folk hero is a useful object of study. She has been the subject of a variety of hagiographical portraiture, ranging from fawning magazine profiles and sycophantic treatment in film to illustrated children’s books. She inspires her followers to get her image tattooed onto their bodies, to mimic her fitness routines, to feel as she felt and to weep as she wept.
This behavior lends itself to quite a few descriptors, but you cannot call it a cult. The cult leader is nigh infallible, but that is not Ginsburg’s role. Her relationship with the flock is transactional, and she can transgress against progressive tenets as easily as anyone. When Ginsburg called former NFL quarterback Colin Kaepernick “arrogant” for leading his teammates in a “dumb and disrespectful” protest against the American flag, for example, the liberal blogosphere rose up in revolt. Some went so far as to imply rather unambiguously that Ginsburg’s anachronistic lack of racial consciousness rendered her undeserving of the left’s veneration.
Identity politics is relatively shallow politics, and Ginsburg’s transgression was soon forgotten under a mountain of substance. Her value to the liberal movement as a lifetime appointee to the nation’s highest court is self-evident, but it is her unique facility for lending intellectual heft to the left’s ideological pragmatism and single-mindedness that makes her so important to Democrats and their allies in media. The reaction to Monday’s Supreme Court decision in Epic Systems Corp. v. Lewis illustrates this phenomenon.
In that decision, the Supreme Court determined that employers can appeal to the arbitration clauses in the contracts that non-union employees sign to prevent those employees from joining class-action lawsuits against them. “In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings,” Justice Neal Gorsuch wrote in the majority opinion. “This court is not free to substitute its preferred economic policies for those chosen by the people’s representatives.”
That 5-4 decision was correctly interpreted by much of the press as a blow to organized labor, but the political media was led to that conclusion by Justice Ginsburg, whose dramatic reaction to this ruling was designed to generate as much attention as possible. In an uncommon move, Ginsburg read a portion of her dissenting opinion from the bench. “Federal labor law does not countenance such isolation of employees,” she said, fretting that the Court’s “egregiously wrong” decision may lead to the “underenforcement” of other statutes protecting workers’ rights. Yet Ginsburg appeared to reinforce the majority’s logic when she noted the ambiguity of the National Labor Relations’ Act’s handling of arbitration and suggested that Congress needed to update federal labor laws. Even her Democratic allies, like New York Governor Andrew Cuomo, reinforced her contention that Congress should act to resolve this ambiguity.
That vagueness was hard to find in reported accounts of events in the Supreme Court on Monday. Rather than approach reporting around this issue as though it were a complex matter on which the Court carefully found grounds to rule as it did, media professionals took their cues from Ginsburg’s personal conduct. CNN’s “legal analyst and supreme court biographer,” Joan Biskupic, wrote that “the gloves are off and the collar is on.” That is, her “classic dissenting collar,” tastefully adorned with “silver crystal accents,” which Ginsburg adopts when she reads her dissents aloud. “So dire was her warning,” Biskupic continued, that Gorsuch was compelled to spend five of his 25 pages rebutting her dissent.
Indeed, Ginsburg’s perspective was the angle taken in many press accounts of this ruling, but they did not strictly adhere to her logic. Again and again, news outlets and analysts lamented the effects that this decision might have on non-unionized workers, not the vagueness of the law, in order to buttress a predetermined conclusion. NPR called the decision “a major blow to workers” that stopped them from banding “together to challenge violations of federal labor laws.” The Huffington Post insisted that this ruling meant that women “will no longer be able to band together to fight systemic sexual discrimination or harassment in court.” Quartz took this logic a step further and insisted that, though the majority opinion’s language was “coded” (read: legalistic), Gorsuch had dealt a “devastating blow to the #MeToo movement, and the fight for gender equality at work.” To come to this conclusion is to actively ignore Ginsburg, who wrote that the Court’s decision did not “place in jeopardy” anti-discrimination protections for workers.
There are limits to political media’s willingness to serve as Justice Ginsburg’s stenographers, and those limits are usually met when the “Notorious RBG” complicates the realization of liberal objectives. In July of 2016, for example, Ginsburg violated a taboo when she weighed in on presidential politics, expressing unreserved fears over how a prospective Donald Trump presidency could change the country and bench on which she sat. Democrats in the Senate castigated her for getting out “over her skis” and getting “very close to the line” that justices should not cross.
Ginsburg’s offense wasn’t having an opinion that Democrats shared, but expressing it in a way that reinforced Trump supporters’ arguments about the bias inherent in elite American institutions. Suddenly, Ginsburg was “injudicious” and had made a “mistake” by imperiling the court’s apolitical aura, and the justice was eventually compelled to withdraw her remarks. There were no such condemnations of her behavior when she boycotted Donald Trump’s first State of the Union address on similar grounds. After all, many of her fellow Democrats had done the same.
To a disturbing degree, the story that the press tells when it comes to the conduct of the Supreme Court is Ruth Bader Ginsburg’s story. It is through her eyes that they interpret the logic and impact of its decisions, even if that perspective does more to obscure than to clarify the Justices’ thinking—including, ironically, her own. The theology surrounding Ginsburg is doubtlessly unhealthy in a republic of laws, but it is clearly a means to an end. That end is not jurisprudence or even the empowerment of women, but the advancement of liberal policy objectives. When she becomes an impediment to those objectives, few of her so-called allies have any compunction about throwing RBG under the bus.
