William N. Eskridge Jr.—
Ruth Bader Ginsburg passionately loved her family, her job as a judge, constitutional law, and opera—not always in that order.
I first came to know and admire Ruth through our shared academic interests and through my beloved Georgetown colleague Marty Ginsburg. But in the last decade, I saw her most often at the Musicales that she sponsored twice a year at the Supreme Court. The Musicales gave us such breathtaking artists as YoYo Ma (2014), Wynton Marsalis (2015), Audra McDonald (2017), Itzhak Perlman (2017), and Joshua Bell (2019).
Typically, every other Musicale featured opera singers, usually a soprano and a tenor, for it was notorious that RBG was a connoisseur. (This helps explain her friendship with Nino Scalia, who enjoyed opera and roiled the Court with dramatic dissents.) The tenors often serenaded Justice Ginsburg, enraptured on the front row, as the audience was thrilled and charmed.
Ruth’s last Musicale was on Thursday, February 12, 2020, right before the COVID-19 pandemic closed down the Supreme Court. The Washington National Opera’s Young Artists presented Gian Carlo Menotti’s The Consul. The opera is set in an unidentified country ruled by a sociopath, where the rule of law has been eclipsed by paranoia.
As the opera opens, the secret police have targeted dissident John Sorel, who flees the capital for the border and asks his wife Magda to secure a visa allowing her and the family to leave the country. The bulk of the opera depicts Magda’s futile efforts to secure the attention of bureaucrats who could provide her the needed legal documents.
In the last years of her tenure on the Court (1993-2020), Ruth Ginsburg could be forgiven if she sometimes felt like Magda Sorel. She fought an often uphill battle to secure legal documents—judicial opinions—advancing the Constitution’s guarantee of an equal protection for all Americans of a neutral rule of law. Her opinions were her “opera,” a term for a body of written work, that in her case played the music of humane logic. Ginsburg invested her judicial opera with all the care, brilliance, and patriotism that Verdi invested in his musical operas.
In recent years, RBG was “notorious” for her dissenting opinions. Her arguments against the Court’s diluting the protections of the Voting Rights Act, carving out new exceptions to Roe v. Wade, sacrificing the doctrinal neutrality demanded by the Religion Clauses, and denying workers their rights to sue in federal court for violation of the Fair Labor Standards Act were rendered with the power of a maestra.
Thankfully, the harmonic core of Ruth’s legal opera has soared: her constitutional critique of sex discrimination, rigid gender roles, and patriarchy. The arguments she made for clients of the ACLU’s Women’s Rights Project became the law of the land in her majestic opinion for the Court in United States v. Virginia (the VMI Case), decided in 1996 and recently followed inSessions v. Morales-Santana (2017).
Some recent performances of her constitutional jurisprudence came in opinions where Justice Ginsburg was not the public author. Truly, her jurisprudence inspired efforts to initiate a public conversation about marriage equality for sexual and gender minorities in the 1990s, and it saturated the opinions of state supreme court justices, such as Margaret Marshall in Massachusetts, who established such rights under state constitutions in the new millennium.
Although the Supreme Court’s opinion in Obergefell v. Hodges (2015) was delivered by Tony Kennedy, the inspirational paragraphs grounding marriage equality in equal protection jurisprudence were written by Ruth Bader Ginsburg. Those paragraphs explicitly tied marriage equality for sexual and gender minorities to the similar struggle delivering equal citizenship for women. They rang true to lesbians, gay men, and transgender persons—the same citizens who came before the Court five years later seeking recognition of their workplace rights under Title VII’s bar to discrimination “because of sex.” At oral argument in Bostock v. Clayton County, one Justice deadpanned that he usually followed the statutory text (which favored the gay and transgender employees), but perhaps not if it led to “massive social upheaval.”
While her colleagues were drafting their opinions in the Title VII case, Ruth hosted her last Musicale. The climax of that afternoon’s rendition of The Consul was a frenzied and manic scene. The papers cluttering the desk in the consulate were suddently tossed into the air, and the front of the East Conference Room was filled with a blizzard of flying paper and terrifying music. Both eye and ear were overwhelmed with the chaos. Recalling the Bostock argument, I wondered whether it was not official arbitrariness (and not gay instructors or transgender funeral operators) that generated “massive social upheaval.”
At the end of the opera, Magda died, and John was under arrest by the mad dictator’s police. Seated on the far right, we greeted Ruth, as she left the room immediately after the performance. Spotting medics waiting for her as she entered the anteroom, I was overtaken by dread.
In the following months, in the throes of cancer therapy, Ruth Bader Ginsburg continued her jurisprudential opera, with sharply reasoned dissents from the Court’s expanding free exercise jurisprudence. Her last magnum opus, for me, came in Bostock, where a majority overcame fears of gay-inspired upheaval and interpreted Title VII to prohibit workplace discrimination against sex and gender minorities. Although rhetorically anchored in original meaning, Neil Gorsuch’s majority opinion drew most of its analytic power from the Ruthian view that discrimination against Hannah because she is too masculine and Bob is too feminine is surely discrimination “because of sex”—a deep bow to feminist thought that RBG brought to the Court.
I miss her face in the world, but Ruth’s masterpieces inspire me every day as a professor of constitutional law. Her legacy is the visa to enter a world of citizenship without gender restrictions that her opera offer to women, bisexuals, transgender and nonbinary persons, lesbians, and straight as well as gay men.
William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.
Further Reading:
Fashion or Function?