Notorious RBG

by Irin Carmon

  Burn.

  Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.

  A facial challenge asserts that a law is always unconstitutional and should be struck down entirely, as opposed to a more narrow approach of declaring it unconstitutional as applied in a specific instance. Here, RBG is turning the tables on conservative members of the court and their supporters. They often wield the accusation of judicial activism at liberal judges and courts for allegedly overreaching in their decision making to address issues that are not properly before them. Here, RBG says to the conservative majority, “Slow down, love, please chill, drop the caper, you haven’t even checked to see there’s actual discrimination here or whether you can rule more narrowly.”

  . . . Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet. . . .

  Here, RBG echoes the arguments of many civil rights advocates who have long praised the efficacy of the VRA both in stopping discriminatory voting laws that are presented for preclearance but also in deterring jurisdictions from dreaming them up in the first place. Importantly, since Shelby, organizations like the NAACP Legal Defense Fund and many of its allies have brought court challenges to stop laws that preclearance otherwise would have prevented. One example is Texas’s stringent photo ID law, which allows voters to present a gun carry permit but not a student ID to vote.

  The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. . . . With that belief, and the argument derived from it, history repeats itself.

  “It was [not] all a dream.” RBG goes on to discuss the robust congressional record that supported the most recent renewal of Section 5 in 2006, as well as the history of discrimination in voting, as if to say to the majority and any other VRA doubters: “And if you don’t know, now you know.”

  Without the force of Section 5, discrimination in voting continues at breakneck speed in jurisdictions across the South and in many unsuspected pockets of the country. This was not lost on the Notorious RBG. In a more recent dissent involving the Texas photo ID challenge, RBG noted that “racial discrimination in elections in Texas is no mere historical artifact.” However, there are now fewer tools to combat it.

  By June 2014, people knew to scan for “Ginsburg, J. filed a dissenting opinion.” Five Republican-appointed male justices decided that not only did corporations have religious consciences, those consciences allowed them to opt out of covering birth control on their insurance plans. No big deal, said the majority in Burwell v. Hobby Lobby. Just ladies’ stuff. Weeks later, when Katie Couric asked RBG, “Do you believe that the five male justices truly understood the ramifications of their decision?” she replied, “I would have to say no.” Did they, as men, show a “blind spot”? Couric pressed. RBG said they did. “Contraceptive protection is something every woman must have access to, to control her own destiny,” RBG said. “I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief.”

  RBG’s most famous words in the Hobby Lobby dissent could have appeared in any of her searing dissents: “The court, I fear, has ventured into a minefield.”

  Roslyn Zinner

  RBG DISSENTS

  “Such an untested prophecy should not decide the Presidency of the United States.”

  —RBG’s Bush v. Gore dissent, December 12, 2000

  “The stain of generations of racial oppression is still visible in our society and the determination to hasten its removal remains vital.”

  —RBG’s Gratz v. Bollinger dissent, June 23, 2003

  IRIN: I heard you can do twenty push-ups.

  RBG: Yes, but we do ten at a time. [Laughs.] And then I breathe for a bit, and do the second set.

  —MSNBC interview, 2015

  A LOT OF PEOPLE throw around the word unstoppable when they talk about RBG. But they should know that it is literally true. Like the time the justice had a cracked rib, which wasn’t about to stop her from keeping her twice-weekly personal training session.

  Bryant Johnson has been her trainer for almost two decades. He tried telling her chambers that day in 2014 that he wasn’t going to let RBG work out until her bone healed.

  Johnson is sitting in his Washington, D.C., office as he tells the story, still incredulous. He remembers what her secretary told him in response: “She doesn’t want to hear that.”

  It’s not like Johnson isn’t used to toughness. An army reserve sergeant first class, he used to jump out of helicopters and airplanes. He was deployed in Kuwait. He’s also gotten accustomed to the kind of grit that comes in a power blazer rather than fatigues. Impressive professional women are basically his client specialty. But RBG is the one he calls TAN—tough as nails.

  “I mean, she’s not the heaviest or stoutest lady, but she’s tough,” says Johnson. “She works just as hard in the gym as she does on the bench.”

  RBG had always been thin, but after colorectal cancer, Marty started saying she looked like an Auschwitz survivor. He was the one who told her in 1999 she had to see a trainer, along with Sandra Day O’Connor, who had advised RBG to stay active during cancer. (Being a night person, RBG never made it to O’Connor’s 8 A.M. aerobics class, which O’Connor had basically required female clerks to attend.) At twenty-nine, RBG discovered the Canadian Air Force workout at a tax conference with Marty, and she has performed it almost daily since. Designed in the 1950s, its moves include quick spurts of toe-touching, knee-raising, arm-circling, and leg-lifting.

  White-water rafting in Colorado in 1990 Courtesy of Burt Neuborne

  For most of her life, people have thought of RBG as formal, cold even. But there was another, less guarded side, the one that came out as when she threw herself into horseback riding or waterskiing. One summer when they were both teaching in Aspen, Colorado, Burt Neuborne, RBG, and a few other friends went whitewater rafting on the Colorado River. RBG was pushing sixty, and she had never been a large woman. “I told Ruth she should sit in the back of the boat, because she was so light that if they hit a rock, she would go flying over,” Neuborne says. “Her response: ‘I don’t sit in the back.’” A few years later, a friend recruited by Marty to lobby for RBG’s nomination to the court, N. Jerold Cohen, said, “Early on it came out that President Clinton was looking for a young jurist, and I pointed out that she’s in great physical shape.” In residence for a week at the University of Hawaii in 1998, already a justice, RBG gleefully went paddleboarding.

  When RBG and O’Connor gave the U.S. Olympic Women’s Basketball team a tour of the court, including the “highest court in the land,” the basketball court upstairs, RBG gamely agreed to take a shot. A little practice, the players agreed, and she could be a point guard. At her seventy-fifth birthday celebration at the Second Circuit, the Court of Appeals she oversees, RBG was asked whom she wanted to record a birthday greeting for her to be played on a screen. She surprised everyone by picking legendary Yankees manager Joe Torre.

  After massive surgery, chemotherapy, and radiation—“the whole works,” RBG conceded—it was time to rebuild. Her friend Gladys Kessler, a federal judge in Washington, D.C., had a recommendation for her: Johnson, whose day job was in Kessler’s office as a records manager. Johnson didn’t quite know what RBG had been through, but he didn’t really c
are. He would meet her where she was and go from there. And RBG took to strength training like she does everything else: with ferocious determination, and without complaint.

  “She uses her mind every day,” says Johnson, “and I make sure she uses her body.”

  He started with having her do push-ups on the wall, feet on the ground. RBG said skeptically, “Push-ups?” And Johnson replied, “Yes, push-ups.”

  In their first few months of training, Johnson was worried that he hadn’t gotten any feedback from RBG. “If the justice didn’t like you,” one of her secretaries told him, “you wouldn’t still be here.” He didn’t ask that question again.

  Johnson still has the broad shoulders and iron posture of a military man, but he likes to wear blue-tinted glasses and answer e-mails with “kool and the gang.” Johnson comes across as a man who is used to making awkward, cerebral people feel comfortable, which is to say he is comfortable with himself. He cracks jokes and says RBG even laughs at them, despite her old rep, including with her kids, for not having a sense of humor.

  There’s a competition happening in his office for floor space, between boxes of yellowed archival documents and duffel bags of exercise equipment. On the corner shelf sits a “Notorious RBG” T-shirt along with an “I <3 RBG” hat, both gifts from his most famous client. A half-unzipped black bag under his desk reveals a pair of boxing gloves that are usually used by his second most famous client, Justice Elena Kagan—who came to him on RBG’s recommendation.

  He gets these women, how they have had to barrel fearlessly—but not too hard—through the world. “Being a woman in this city, you’ve got to be able to put up with a little bit and be able to take a lot of it,” he says. “You’re looking at Justice Ginsburg, Judge Kessler, these are women that when they came through, they were told, ‘You want to be a lawyer? You can be a paralegal, you can’t be a lawyer.’”

  Still on reserve duty, Johnson also works on sexual-assault prevention and victim advocacy, helping service members who have filed sexual-assault complaints know their options and seeing them through the process. Does he call himself a feminist? “I have been raised with a lot of strong women in my life that help influence how I look at women,” he says, “which is as equal to a man.” (He hastens to add his grandmother taught him to always open doors for women.)

  After the wall push-ups came push-ups on her knees. After that, push-ups with knees off the ground. That was when, Johnson gloats, “I could see the light in her eyes.” Sometimes she’ll go over twenty. Sometimes he has to protect her from herself on that too.

  Johnson was never one of the people who saw RBG’s birdlike build or her postcancer pallor and thought that was it. A few years ago, The New Yorker’s Jeffrey Toobin, who described RBG as “frail” in one of his books on the court, learned the error of his ways in a pretty direct fashion. As in, Marty in his face, asking him, “How many push-ups can you do?”

  As Toobin struggled to come up with a number, Marty retorted, “My wife can do twenty-five—and you wrote that she was ‘frail.’”

  Bryant Johnson still gets asked if the justice actually does “girl push-ups,” with her knees down. He rejects that term (and anyway, she doesn’t). “A push-up is a push-up is a push-up,” he says. “I don’t look at the fact that they’re a woman by limiting what they can do.”

  That’s not to say he doesn’t see any difference between men and women at the gym. In fact, he sees some right inside the special, justices-only gym where he trains RBG. “I’ve seen the Chief there, and Justice Breyer,” Johnson says.

  He rolls his eyes. “Men, we have that ego thing: ‘Yeah, I know how to do it. I know how to lift weights, I know how to work on a car.’ Women understand, ‘Yeah, I don’t know how to lift weights,’” he says. “Justice Ginsburg knows about the law, but when it comes to personal training, I explain it to you.”

  The only thing she tries to explain to him is opera. “Sometimes I understand it,” confesses Johnson. “Sometimes I’m like . . . yeah. That’s her thing.” Before there was a television in the justices’ gym, RBG would work out to classical music. (A Jazzercise class she attended in the early nineties, she told The New Republic in horror, “was accompanied by loud music, sounding quite awful to me.”)

  Now, PBS’s NewsHour is usually on while they train. “I even became a fan of NewsHour,” Johnson says, not exactly with enthusiasm. He was pretty relieved the first time Kagan asked to flip to ESPN’s SportsCenter for her own gym time.

  And he was thrilled to teach Kagan how to box. “How many women know how to punch? It’s not a ladylike thing,” says Johnson. “But there’s nothing like the sound of leather hitting leather. When you hear that pop sound”—he mimes a punch and makes the sound buh, buh, buh—“that’s a feeling that sometimes women don’t get.” He’s even created an extended boxing sequence he calls the “Kagan combination.”

  One evening—and her training sessions are almost always in the evening, usually at 7 P.M.—when RBG’s session directly followed Kagan’s, she asked about those gloves. Johnson suggested the senior justice give them a thump. “She said, ‘No, we’ll leave that for her.’”

  So had RBG finally found her limit?

  Johnson has a theory about that: “She’s already empowered.”

  If he wanted to, Johnson could take some credit for the fact that RBG has kept up her daunting work output and her frenetic social schedule past the age of eighty. Mostly he’s just happy that, he says, RBG hasn’t lost any bone density since they began training, which beats the odds for her age. “She fell in her chambers once, on her hip,” he said. “What happens to older women when they fall?” Johnson was referring to the fact that they often break bones. “She went to the doctor, came back, and said, ‘Nothing’s broken.’ That was my report card.”

  They had a scare during one training session, when RBG started feeling light-headed. Her chest felt constricted, and she broke out in a sweat. She wondered whether it was because she had stayed up the night before writing an opinion, and wanted to ignore it. “I was very stubborn,” she says. Johnson called her secretary, who, as RBG puts it, in her “gently persuasive way,” insisted she go to the hospital.

  As Johnson saw RBG to the ambulance, he promised, “You ain’t going out on my watch.” He added something else that made RBG smile: “I said, ‘Justice, you do realize this is not going to get you out of doing these push-ups.’”

  An EKG showed she had a blocked right coronary artery, and doctors put in a stent. “I was fine,” RBG told me. “No more constriction in my chest. I wanted to go home.” She laughed. The doctors insisted she stay in the hospital two nights.

  When her hospital stay became public, Johnson got a text message from a fellow trainer in Ohio, whom he’d met at a fitness convention, where RBG was an instant hero. “‘Yo B, what you doing to the justice, man?’” his friend demanded. “I’m like, ‘How do you know?’ ‘We keep NPR on!’”

  The heart stent was inserted on a Wednesday. RBG still wanted to train on the following Monday. That time, Johnson relented—as long as they only did stretching exercises. By then, he knew she would pick working out over almost anything else. Even her own bones. Even dinner with the president.

  RBG plainly adores Barack Obama. She calls him “sympathique,” a French word that is one of her highest forms of praise. And yet one night, Johnson remembers, RBG slipped out early from a dinner at the White House. After all, she had a date at the gym.

  “I said, ‘You left the president for me?’” Johnson recalls. “‘Oh man, extra push-ups for you.’”

  Rehnquist funeral silhouette Sarah Pearl Cooper

  THE NOTORIOUS RBG WORKOUT

  * * *

  The justice starts with a five-minute warm-up on the elliptical, followed by stretching and rotational exercises. Lately, Bryant Johnson has had her do one-legged squats—holding on to his hands—and planks, where he does his best to knock the tiny justice down. But the signature move is one that Johnson desc
ribes as “the exercise that will actually stop you from having to have a nurse 24/7,” preventing the client from getting to “the moment you can’t sit down at the toilet and get up.”

  1.Sit down on a bench with a 12-pound ball. (RBG started with a 2-pound ball and made her way up. “The first time I gave her the 12-pound ball, it almost threw her,” Johnson says.)

  2.Stand up, holding the ball with two hands; press it to your chest.

  3.Toss it to Johnson, who hands it back. (“I don’t want to take the chance she misses it and it hits her. That wouldn’t be a good look. Just think of the paperwork I would have to fill out.”)

  4.Sit back down on the bench.

  5.Repeat 10 times.

  RBG’S SWAG

  * * *

  Among rows of black robes, in a city of sensible conformity, RBG has boldly staked out her own aesthetic. Like everything else about RBG, it is precise, elegant, and at times unexpectedly audacious. And every detail matters—not just because she’s a perfectionist, although she is, but because it tells a story.

  The lacy collar, or jabot, the visual she is most known for—a glimpse into the closet in her chambers shows she has at least a dozen—started out as a quietly political statement about women on the bench. “You know, the standard robe is made for a man because it has a place for the shirt to show, and the tie,” RBG said. “So Sandra Day O’Connor and I thought it would be appropriate if we included as part of our robe something typical of a woman. So I have many, many collars.” She and O’Connor took something that had never been made with a woman in mind, because no one ever imagined the world other than how it was, and they made it theirs.

  RBG in San Francisco, 2011AP Photo/Ben Margot