By chance, I watched RBG (2018), a documentary on Ruth Bader
Ginsberg, a U.S. Supreme Court justice, on the day she died in 2020. Being just
a month and a half before the U.S. presidential election, the sudden opening
immediately became political. This is of course to be expected, given that the
sitting U.S. president nominates candidates and the U.S. Senate confirms them.
The role of political ideology on the bench and thus in court decisions,
however, is considerably more controversial because the justices are tasked
with interpreting the law rather than stitching their own ideologies into law
as a means of changing society. The documentary demonstrates that changing
society through law was precisely Ginsberg’s objective.
As a lawyer in the 1970s, Ginsberg carefully selected cases that
could incrementally change how the law discriminated against women. She
understood that political change occurs only incrementally in the American
system wherein the status quo has incredible inertia. Put another way, powerful
interests benefitting from the status quo have considerable influence in
American government. So her approach was to change the law bit by bit. Sitting
on the U.S. Supreme Court, she was able even in her dissents to effect or
influence the making of law in the direction of her objective of changing
society. For example, her dissent on a case involving discrimination of job
benefits led to the passage of a law to stop the discrimination.
It is one thing, however, to choose cases as a lawyer to effect a societal change through law, and decide cases by interpreting law. In cases before the U.S. Supreme Court involving possible discrimination against women, Ginsberg’s mission to change society conflicted with her judicial duty to interpret the law as objectively as possible. In other words, Ginsberg could be criticized for putting her ideological mission above interpreting the law fairly.
The documentary makes clear that her objective to change society flowed through her career in law, yet no one is interviewed to present a counter-argument. Societal change as an objective of judicial decisions is taken for granted. In this way, the film is biased in favor of Ginsberg. Yet this bias is hidden from the viewers because the judicial objective is presented as a given. The documentary, like its subject, works in effect for a specific societal change. I am not suggesting that law should protect rather than prohibit the discrimination of women; rather, I contend that both the documentary and Ginsberg could have subjected the assumed validity (and laudability) of deciding cases to effect societal change through law to critique and thus been more balanced, and thus fuller and broader.
