Grace and Justice Beyond the Grave: The Memory of Justice Ruth Bader Ginsburg

Here’s a piece Dr. Johanna Hartelius and I wrote for Mockingbird Magazine: 

The incomparable Justice Ruth Bader Ginsburg died last week, having served on the Supreme Court for nearly three decades. She was a fearless leader of the court’s liberal wing, a feminist trailblazer, a “lady,” and a person of great righteousness. Justice Ginsburg’s impact on women’s legal and cultural rights in this country can hardly be overstated, and now she deserves all the honors — to lie in state in the Capitol Rotunda, to have a kibbutz named after her, to circle social media in infinite “Notorious RBG” memes.

When it comes to adequately commemorating her, however, the United States has a terrible tendency to smooth out the rough edges of those we want to remember. We simplify them to a point of caricature, airbrushing their images until they are barely recognizable. In our fervor to induct them into the hall of fame of American exceptionalism, we mute the things they said that were too complicated or outside the mainstream, we amplify those speeches and actions that bolster an uncomplicated narrative, and we hide the attributes or flaws that may not fit our preferred narrative of them. For Christians at least, this manner of remembering is problematic, for it fails to extend grace beyond the grave.

In order to make individuals like Ruth Bader Ginsburg patron saints of our civic religion, we forget that, because they were human, the lives they led necessarily included contradiction and nuance. The same simul that applies to the living applies to the living’s remembrance of the dead. We all are sinners and saints, at once deeply flawed and often at fault yet credited by God a righteousness we possess only on loan from Christ. In composing our civic hagiographies, Christians in America are frequently complicit in forgetting that even the saints of our public sphere are saints not by merit but only by the gracious reckoning of God.

For example, we remember the Rev. Dr. Martin Luther King, Jr., for his “Dream” of nonviolent integration but less often recall how he described the riots of the mid-1960s as “the language of the unheard,” or how he consistently disparaged the arrogance of American colonialism and warmongering. Rather than attend to the particulars of his complicated life as a person of evolving views and formative experiences, we reduce his memory to a model martyr for the Republic.

In our intense need for a binary cultural narrative — a simple distinction between good and evil rather than everyone being a mix of the two — we fail to see the faults in our heroes and the heroism in our villains. Thus, in denying the dead grace beyond the grave, we seal the fate of their loss. The deficient manner in which we commemorate the dead, Stanley Hauerwas argues, exposes the inherent weakness of the liberalism upon which our public sphere depends. Citing Stanley Fish and evoking critiques of the Habermasian ideal, Hauerwas writes, “Exactly because liberalism cannot acknowledge a transcendental perspective, it does not have at its center an adjudicative mechanism that stands apart from any particular moral and political agenda.” Without the language of sin and salvation that a “transcendental perspective” makes possible, we lack the resources to remember the dead in their full, flawed humanity. We cannot remember them with grace, so we cannot truly remember them at all.

To do the same to the memory of Justice Bader Ginsburg would be to dishonor her.

As an attorney, she compelled an all-male Supreme Court to rule in 1971 that no state could automatically prefer men over women as the executors of estates. Justice Ginsburg penned the majority opinion in the 1996 Virginia Military Institute’s gendered admissions policyand a dissent in Ledbetter v. Goodyear that was instrumental in the eventual passage of the Lilly Ledbetter Fair Pay Act of 2009. As attorney and writer Linda Hirshman described it, over her 27 years on the Court, Justice Ginsburg “slowly and methodically pulled the Constitution toward a larger circle of equality.”

But there were also times when Justice Ginsburg’s actions and judgments surprised the American public — her fans as well as her critics. Her complexity was evident not foremost in her storied friendship with conservative Justice Antonin Scalia, but in some of her unexpected and controversial rulings. She voted with the court’s conservative side on matters of convicted criminals’ supervised release; she made enemies with vocal environmentalists when she voted to reverse the Fourth Circuit’s judgment to block the construction of the Atlantic Coast Pipeline. And she reversed the liberal-leaning Ninth Circuit’s decision in matters of asylum-seekers on the US-Mexico border. Her unyielding focus on the Suspension Clause’s application to one recent case in particular confounded the Right’s decades-old indictment of Ginsburg as a cloaked (frilly collar included) activist for a liberal agenda.

Perhaps most notably, she was openly critical of the legal reasoning behind Roe v. Wade, which cited privacy rather than equality interests in upholding women’s access to abortion. The case, in Justice Ginsburg’s words, stopped the momentum of change, subordinating a woman’s choice to a physician’s freedom to practice medicine. In the days since her death, many progressives on social media have struggled to reconcile their progressive image of RBG with the fact that in her many years as a judge she hired only a single black law clerk. “Notorious,” we forget, is an adjective that normally carries negative connotations. The late musician on whose stage-name the justice’s moniker is a play knew well the productive tension between good and bad.

The complexity of Ginsburg’s record does not indicate a lack of conviction or diminish her importance. They enrich her legacy. They attest to her devotion to deliberation and to law as a “learned profession.” More than anything, they speak to Justice Ginsburg’s insistence on careful study and sound jurisprudence in every instance. This is her true legacy, and it should be central to how she is remembered.

As we commemorate Justice Ginsburg, let us not make her less than she was by eradicating the complexity of her work and life. Remembrance is an act of grace in which we may participate precisely as simul justi et peccatores. We are drawn into mourning and commemorating so that we might continually recognize the humanity in one another and the divinity in the Savior. Let us celebrate and preserve her commitment to nuance and specificity. In reflecting on her judicial philosophy, let us read all of her majority and dissenting opinions, not just our personal favorites. The best way to honor her is to dedicate ourselves not to our ideological entrenchments but rather, as she did, to the process itself — to critical analysis and informed discussion.

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