Standing barely 5 feet tall and weighing a hundred pounds, Ruth Bader Ginsberg was the embodiment of that old adage, “you can’t judge a book by its cover.”  Whether or not one agreed with her views, values and prerogatives, one could not help but note the profound determination that made of her a giant.  For me, as for many, she was an icon, representing the power of the female principle in a traditionally male sphere.  But on her passing, I want to honor the institution she served, not the ideals she personally represented, however much they may resonate with me.  And I do this because I believe that to become a Supreme Court Justice is to die to the world as an individual in some essential way in favor of something far deeper and more enduring, something that lies at the heart of our nation’s functioning much the way an individual’s integrity and conscience underlie his or her character.

Like individuals, the U.S. Supreme Court is not perfect.  There is bias, there is bickering, the perpetration of mistakes and injustices both moral and intellectual.  The functioning of a conscience is a messy business.  I visited the Supreme Court myself on a visit with my family to D.C.  We waited in line, roamed the corridors, gaped at portraits, sat in the gallery, and watched the short, informational film that is the calling card of every exhibit worth its salt.  It reminded me of law school, and I reveled in the self-congratulation of the initiate, the sense that I was party to the establishment and continuity of something sacred.  And as overstated and pompous as that seemed, as much as I had dissected the rise of our legal system and charted its imperfections, I could not help but be moved by the words of the justices themselves when they described what it was like, day after day, to sit down at the table with nine peers, some diametrically opposed to them in perspective and disposition, and sort things out. 

They all come to the table.  They all wear the same robe.  And the robe is significant.

“When a judge walks into the room, and everybody stands up, you’re not standing up to that guy, you’re standing up to the robe that he’s wearing and the role that he’s going to play. What makes him worthy of that role is his integrity, as a representative of the principles of that role, and not some group of prejudices of his own. So what you’re standing up to is a mythological character. I imagine some kings and queens are the most stupid, absurd, banal people you could run into, probably interested only in horses and women, you know. But you’re not responding to them as personalities, you’re responding to them in their mythological roles. When someone becomes a judge, or President of the United States, the man is no longer that man, he’s the representative of an eternal office; he has to sacrifice his personal desires and even life possibilities to the role that he now signifies.”

Joseph Campbell, The Power of Myth

Who could say it better than Joseph Campbell?  And has it ever been more vital that we recognize, value and protect the roles that allow our democracy to survive, function, and hopefully prosper – be they executive, legislative, judicial or journalistic?  This is a prerogative that goes far beyond vicissitudes of policy and platform, beyond the issues litigated in those hallowed halls, some of which strike at the heart of the most deeply held – and polarizing – issues of our day. 

It is an interesting phenomenon that an issue can attract proponents of equal passion on either side, both sure that the sky will fall if their position is not vindicated.  That’s how polarization works, like a battery charge that efficiently drives a mechanism – in this case, controversy – but does little to reveal the workings of the mechanism itself.  For if we took apart it apart, we might see the functioning of the cogs and wheels.  I would hazard to guess that no one wants to go out and kill an unborn child, and that no one wants to colonize and victimize a woman’s body against her will.  Conversely, there are plenty of people who would like to see fewer unwanted pregnancies, or more support for making life-affirming choices, or greater respect for the sanctity of life wherever it is found.  But it’s hard to shout other people down when you’re having those kinds of conversations, and increasingly, we are a nation as polarized as the issues we wield.

What happens to these issues when they reach the courthouse floor?  Passionate constituents on every side – what’s an arbiter of truth to do?  Apply precedent, interpret language and intent, distinguish the peripheral from the essential, embrace the fallibility of your own subjectivity and hold your precepts up to the light as best you can.  Like I said, a messy business, especially when you’re sitting down at a table with nine of your peers.  And at the end, it is the process itself – and only the integrity of that process —  that sanctifies your result.  That is the sacred trust that the black robe represents: how well you examined your own biases and the soundness of your logic, how truly you conformed to the application of dictates beyond your personal devise.  It is the exercise of the office itself that prevails – not the particular points of law, but how truly, if imperfectly, you honored the ideal. 

The issues matter; they impact very real lives in profoundly intimate ways.  And yet, if the functioning of the office itself should fail, the whole thing goes, and very quickly it doesn’t matter whether one’s prerogative is vindicated or not.  When the ideals underlying a nation die, the nation dies with it. 

I still find evidence that the oath prevails, on the balance of things.  I quote here from an analysis of the 2018 judicial term — in which a swing vote decided the 5-4 decisions — but not the same swing vote:

Of the 72 cases this term, 20 were narrowly decided in 5-4 decisions. Notably, the court’s conservative majority didn’t vote together for most of those cases. The conservatives on the bench are chief justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. They agreed with each other on only eight of those 20 matters.

Meanwhile, the minority of liberals—Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor—won just as often as their colleagues on the ideological right. That’s because one conservative justice agreed with them on eight other close cases. And in the four remaining 5-4 decisions, the justices did not vote along expected ideological lines…

What is striking about the most recent season is that there were 10 different alignments among justices in 20 contested cases, which is far more than seen previously. In 2006, for example, there were only six different alignments for 24 close cases. This indicates that the current bench is quite flexible and that ideology isn’t a perfect predictor of outcomes with the current nine justices.

We charted the ideological lines along which each Supreme Court justice voted, www.qz.com

Will it always go that way?  I don’t know.  Perhaps the bench will one day be composed of people who cannot see the forest for the trees, who fail their sacred trust and adjudicate on the basis of whim or bias or political expediency.  One can look around the world and see plenty of examples of kangaroo courts, and we know what becomes of those countries, for very quickly, they are nations with neither conscience nor soul.  But I know what matters, in the grand scheme of things, and what matters is the office, what matters is the robe. 

Chief Justice John G. Roberts, Jr. said of Justice Ginsburg: “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice.”

Supreme Court announces Justice Ruth Bader Ginsburg’s death, www.cnn.com

I will keep looking for these gestures of respect and solidarity across the aisle wherever I find them – in the halls of congress, at our dining room tables, and perhaps most importantly for our nation’s soul, on the courthouse floor. 

Image credit: Supreme Court building in Washington D.C.; USDA photo by Ken Hammond; public domain