“Justice Ginsburg’s feminist legacy teeters on a knife’s edge.”
That was Vox.com’s excitable senior correspondent Ian Millhiser’s grim verdict on the “Notorious RBG,” a “flaming” “feminist gladiator” whose exploits have been immortalized in major motion pictures and whose cult of personality extends to workout books, hagiographical children’s literature, and action figures. What was the offense that so tarnished Justice Ginsburg’s reputation? She refused to indulge in the fantasy that the Equal Rights Amendment to the Constitution is a live issue.
“I would like to see a new beginning,” Ginsberg said of the ERA in a recent interview. “I’d like it to start over.” She added that there is too much “controversy” around the issue now, but that’s a charitable assessment. There’s really no controversy at all.
In 2017, Nevada became the first state to ratify the amendment in decades. The progressive celebrity commentariat sprang into action, insisting that the Constitution was just one state away from a crucial update. Ostensibly responsible media outlets such as the Washington Post followed suit. Illinois joined Nevada in 2018 and, in January, Virginia ratified the amendment—crossing a constitutional threshold and finally enshrining “women’s equality” in the nation’s founding charter. But Virginia’s vote came and went with little public notice. The anticlimax must have come as a shock to ERA supporters who were so egregiously misled by their ideological comrades.
The rationalizations demanded of anyone who would convince themselves that the ERA remains viable are monumental. The amendment was first sent to the states in 1972 with a strict deadline for ratification. When that 1979 deadline was not met, Congress extended it until 1982. But in the interim, no new states adopted the amendment. To convince yourself that the ERA remains tenable, you must convince yourself that the initial ERA bill that passed Congress is valid but subsequent amendments to it are not. You must believe that the state-level ratifications of the ERA are legitimate, but the states that that rescinded ratification (of which there are four) have acted lawlessly. You must dismiss the provisions passed by ERA-ratifying states that make the amendment’s adoption contingent on meeting the congressionally imposed deadline. The burden of maintaining this sprawling fiction has proven too much for Ginsburg.
This episode exposes (again) the extent to which the sectarian creed of Ginsburg-worship is entirely transactional. Its congregants do not value her because she is a consistent champion for a particular legal perspective but as an advocate for a set of political objectives. Ginsburg usually delivers for her admirers, but even she is occasionally obliged to defer to political or legal realities. When she does, she’s branded insufficiently loyal not to the law but her ideology.
In 2017, Ginsburg authored a Court decision striking down a “stunningly anachronistic” law that made it easier for female U.S. citizens abroad to pass American citizenship on to their children than it was for males. “Woke this decision wasn’t,” scolded Harvard Law Professor Noah Feldman. When Ginsburg joined the majority of justices in a 2015 decision that found the controversial shooting of a suspect by a police officer during a dispute was not objectively unreasonable, she was castigated by Slate’s Mark Joseph Stern for displaying a conspicuous “law-and-order streak.” Her refusal to heap praise upon former NFL quarterback Colin Kaepernick for taking a knee during the national anthem earned her the scorn of “intersectional feminists” who assumed Ginsburg subordinated her better judgment to the demands of white racial solidarity. And when the Justice declined to endorse Pete Buttigieg’s plan to pack the court, progressive activists and organizations dismissed her remarks as evidence that she had been cowed into silence.
If there is consistency on display here, it is in the expectation that Ginsburg should (and would, given her druthers) behave as a political operative rather than a dispassionate member of the judiciary. She has provided her fans with every reason to expect that kind of advocacy; it is, after all, the liberal justices on the Supreme Court bench who reliably vote as a bloc, not their conservative counterparts. But on the rare occasions when Ginsburg fails to play to type, the veneration she’s become accustomed to disappears.