RBG: Feminism, Activism and Jurisprudence
By Christian Berger
While The National Board of Review has chosen RBG as the Best Documentary Film of 2018, Ruth Bader Ginsburg proved once again that she actually is a real life hero. From her hospital bed, she participated in a recent U.S. Supreme Court 5-4 decision to prevent the Trump Administration from immediately enforcing its new policy of denying asylum to immigrants who illegally cross the Mexican border. The Justice is expected to make a full recovery and return to the bench “full steam.”
The documentary film RBG, directed and produced by Betsy West and Julie Cohen, portrays Bader Ginsburg not only as a pop icon, but also as an iconic feminist legal scholar and activist. In a partisan yet – like Ginsburg herself – rather serious and dignified manner, the film tells Bader Ginsburg’s story through a collection of interviews, audio and archival material and recordings of public appearances, highlighting her quiet temperament, intellectual ambition and devotion to the law. It presents the ethos and idealism of first and second generation of Jewish immigrants, the many difficulties of being taken seriously as a woman in the academic and legal sphere and some of her more precious relationships. Especially to her late husband Martin Ginsburg, a tax lawyer who was the first boy she dated who cared that she “had a brain”; he supported and promoted her all her life.
Despite her public perception as a judge, the film not only chronicles her notorious dissents regarding voting, workers and reproductive rights, it also traces landmark cases like United States v. Virginia, where Ginsburg’s majority opinion struck down the last male-only admission policy of a university in the United States. Moreover, it throws light upon the legal reality of the 20th century, which reflected that men were meant to be breadwinners and were women meant to be caregivers. For example, women were not assigned to jury duty or not allowed to administer an estate and widowers who were caring for minors were denied special survivor benefits. In six such U.S. Supreme Court cases in the 1970s, Ginsburg successfully argued that the Equal Protection Clause of the 14th Amendment of the U.S. Constitution applies to the status and rights of women (and men) and protects them from discrimination in situations where there is no rational basis for discrimination. The basic idea was that women are equal citizens. She won five of these six cases and laid the foundation for gender equality legislation.
For feminist activists, especially legal activists and feminist lawyers, RBG, as a tribute to Ginsberg’s life, shows that it does not have to be a contradiction to be politically engaged and a legal professional. Quite the opposite: the subsumption of social situations and facts under legal norms is always a political activity, because norms cannot be interpreted from an ahistorical and neutral point of view simply because there is no such thing as an ahistorical and neutral point of view. There will always be a critical need for self-reflection, well-argued partisanship in jurisprudence. The more dynamic and concrete one interprets and applies constitutional principles such as equality, the more probable it becomes that social relations, which are based on inequalities - sexism, racism, economic dependencies, etc. - will be influenced by the law and related exclusions must be changed. To this extent, even the law can be an instrument for social change.