The Notorious R.B.G.: Lessons on Legal Writing from the Legendary Ruth Bader Ginsburg
10.6.2020
Ruth Bader Ginsburg reached a level of notoriety unparalleled by any other Supreme Court Justice. She served as the main litigator and legal strategist to dismantle gender discrimination in the law and inspired countless women to pursue legal careers. Ginsburg is considered “the most important woman lawyer in the history of the Republic.”[1]
Born in Brooklyn in 1933, Ginsburg graduated from Cornell University with a B.A in Government.[2] She attended Harvard Law School, where she joined eight other women in a class of 552 students.[3] She transferred to Columbia Law School for her final year; she was one woman out of 12.[4] After graduating (and tying for first in her class), Ginsburg served as a judicial clerk to Judge Edmund Palmieri, U.S. District Court for the Southern District of New York.[5] She taught at Rutgers Law School from 1963 until 1972, when she became the first woman to serve as a tenured faculty member at Columbia Law School.[6]
In 1972, Ginsburg cofounded the Women’s Rights Project at the American Civil Liberties Union.[7] As the director, she carefully crafted a litigation strategy “to build brick upon brick . . . to create a stable structure” demonstrating the unconstitutionality of gender discrimination.[8] She often picked cases involving discrimination against men to show that gender discrimination hurt everyone, not only women, and to elicit sympathy from the Justices, all of whom were men.[9] Ginsburg won five of the six cases she argued before the Supreme Court and contributed to 34 additional Supreme Court arguments.[10]
In 1980, President Jimmy Carter appointed Ginsburg to the United States Court of Appeals for the District of Columbia Circuit, where she earned a reputation for building consensus between the court’s conservative and liberal members.[11] President Bill Clinton referenced this skill when he announced her appointment to the Supreme Court.[12] Ginsburg became the second women to serve in this position.[13] In her confirmation hearing, she described her approach to judging as “neither ‘liberal’ nor ‘conservative.’”[14] But as the Court became more conservative over the next 27 years, “Justice Ginsburg’s powerful dissenting voice emerged.”[15]
In the last decade of her life, Ginsburg became a cultural icon known as the Notorious R.B.G.[16] The moniker — a play on the name of the rapper, the Notorious B.I.G. — originated as an online joke created by New York University law student Shana Knizhnik, who later co-wrote the biography Notorious RBG: The Life and Times of Ruth Bader Ginsburg.[17] Ginsburg’s notoriety spawned a documentary, a Hollywood biopic called On the Basis of Sex, and Saturday Night Live skits. Children dress up as Justice Ginsburg for Halloween.[18] Her face and nickname appear on T-shirts and tattoos.[19]
When Ginsburg died on September 18, 2020, hundreds gathered outside the Supreme Court for an impromptu vigil.[20] Throughout the weekend, people across the country came together to honor her.[21] That she died on Rosh Hashanah eve – the last night of the Jewish year – is “powerfully symbolic.”[22]
Cindy Rowe, executive director of the Jewish Alliance for Law and Social Action in Boston, explained that “[t]he fact that God waited until the very last day to take their life away means that that person was so righteous and so holy that God wanted to hold on to that person for as long as possible.”[23] She added, “This was such a moment of holiness that it was the last moment she was taken from us.”[24]
Instead of being buried as soon as possible after death, in accordance with Jewish tradition, Ginsburg became the first woman — and Jew — to lie in state in the Capitol.[25] Her family “chose a memorial that infused Judaism into America’s rituals of mourning.”[26]
Ginsburg’s success as a champion for equality can be attributed, in part, to her legal writing skills. Many considered Justice Ginsburg the Court’s best writer.[27] While the public mainly knew her “fierce” and “fiery” dissents, she was known in the legal profession as a “lawyer’s lawyer,” in the words of Columbia Law School professor Jamal Greene.[28] She wrote clear and concise prose that was as restrained and persuasive as her litigation strategy.[29] When Ginsburg litigated cases to challenge gender discrimination, she knew she needed to educate the Justices to persuade them.[30] She aimed to “giv[e] them a perspective that had probably never occurred to some of them.”[31] Her persuasive writing style aided her ability to build consensus.
Ginsburg believed that “lawyers have a professional obligation to become the best writers they can be” — for the sake of their clients and also because she believed that lawyers have an obligation to serve the public.[32] She explained that “[t]he more effective a lawyer can be in speech and writing, the better professional he or she will be.”[33] Ginsburg elaborated on this idea in the foreword to an anthology of essays, Garner on Language and Writing: “Lawyers serve their clients best when their readers can read quickly and firmly grasp their points.”[34]
Because “[r]eaders of legal writing, on and off the bench, often work under the pressure of a relentless clock,” Ginsburg explained, “[t]hey may lack the time to ferret out bright ideas buried in complex sentences, overlong paragraphs, or too many pages.”[35] She added that “[s]trong arguments can escape attention when embedded in dense or Delphic prose. Lucid, well-ordered writing can contribute immeasurably to a lawyer’s success as an advocate and counselor.”[36]
Underlying Ginsburg’s understanding of what it means to be a good legal writer was her conviction that “law should be a literary profession,” noting that “the best legal practitioners do regard law as an art as well as a craft.”[37]
Ginsburg’s literary approach can, in part, be credited to her European Literature professor at Cornell — Vladimir Nabokov — who changed how she read and wrote.[38] He taught her that “[w]ords could paint pictures” and showed her that “[c]hoosing the right word, and the right word order . . . could make an enormous difference in conveying an image or an idea.”[39]
Ginsburg also admired Jane Austen for her word pictures, though she claimed that her writing style was not directly related to Austen’s.[40] But Ginsburg, too, could paint word pictures. One of her most memorable lines comes from her dissent in the Voting Rights Act case, Shelby County v. Holder, when she wrote that “[t]hrowing 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.”[41]
Although Ginsburg also claimed her writing style had no direct relationship with Tolstoy’s, we can see his influence as a “strong writer”[42] in the fierceness that punctuates her dissents. Her explicit call to Congress in Ledbetter v. Goodyear Tire & Rubber Co., Inc. — “the ball is in Congress’s court”[43] — worked. In direct response to her remark, Congress enacted the Lilly Ledbetter Fair Pay Act, which overturned the Court’s “parsimonious reading” of Title VII of the Civil Rights Act of 1964.[44]
In addition to these musings on her own writing style, Ginsburg shared several tips for legal writing with Bryan Garner, notable legal scholar and author of many books on legal writing.[45]
Be scrupulously honest
Ginsburg was known for her honesty: The slogan “You Can’t Spell Truth Without Ruth” adorns t-shirts and bumper stickers.[46] She emphasized the importance of being “scrupulously honest,” explaining that judges will distrust a brief if they notice the writer has slanted or miscited an authority.[47] She added that most appellate judges first read the decision they’re reviewing. If they discover that a brief has unfairly characterized the decision, they “will tend to be impatient with that advocate.”[48]
Be concise
According to Ginsburg, “[a] lawyer’s skill is not to dump the kitchen sink before the judge but to refine the arguments to the ones that a judge can accept.”[49]
Ginsburg credited her undergraduate constitutional law professor at Cornell, Robert Cushman, for teaching her to “make [her] compositions as spare as [she] could” and to eliminate unnecessary adjectives after he suggested that her writing style was “a bit elaborate.”[50]
She also advised that it’s not necessary to use all the space allotted for briefs.[51] For most single-issue cases, Ginsburg suggested using only about half the pages allowed.[52] She cautioned that “eye-fatigue and even annoyance will be the response they get for writing an overlong brief.”[53]
Be fair
Despite Ginsburg’s “fiery” dissents, she suggested that legal writers be dispassionate and let their argument speak for itself.[54] She cautioned against disparaging the opposite side or, if writing an appellate brief, the judge who wrote the decision under review.[55]
Ginsburg added that ad hominem attacks are not useful: “If the other side is truly bad, the judges are smart enough to understand that themselves.”[56] The best method of persuasion for lawyers is to focus on their own reasoning.
Know your audience
Ginsburg wrote “innumerable drafts” because she aimed to write opinions that people could understand without having to read any sentence twice.[57]
Although Ginsburg understood her readers to be primarily judges and lawyers, she also knew she was communicating with the public. Trying to be as clear and concise as possible, Ginsburg began her opinions with a “press-release account” to explain to a lay audience “what the case is about, what legal issue the case presents, how the Court decides it, and the main reason why.”[58]
Write affirmatively
Although petitioners should anticipate how respondents will likely react and incorporate rebuttals within the body of their briefs, Ginsburg explained that respondents should avoid writing a brief that merely responds to points raised by the petitioner and the lower court(s).[59] Instead, she suggested that when lawyers are representing a respondent, they should draft a brief before they receive the brief from the petitioner.[60] Only after they tell their side affirmatively should they respond to points from the petitioner, by putting their answers mainly in footnotes.[61]
Write simply
“If you can say it in plain English, you should,” Ginsburg advised.[62] She disliked legalese and legal Latin, particularly given the importance of communicating clearly with the public. Ginsburg understood that eliminating legal jargon would help the public better understand what judges and lawyers do and why.[63]
Read aloud
Ginsburg described Nabokov as “a man who was in love with the sound of words.”[64] She used the “read aloud” test to determine whether she succeeded in using the right words in the right order.[65]
Similarly, she advised lawyers look at their writing. When Ginsburg was litigating sex-discrimination cases in the 1970s, her secretary at Columbia said to her, “I’m typing all these briefs and articles for you and the word sex, sex, sex, is on every page.”[66] Her secretary explained, “These judges are men, and when they read that they’re not going to be thinking about what you want them to think about.”[67] She suggested that Ginsburg use the word “gender” instead.[68]
Don’t write like you’re writing for a law review
Ginsburg disliked three- or four-prong tests — a sign of a law clerk’s work, she believed — because they give “a false sense of security that you have to go down a certain litany in one, two, three, four rank order. But often the decision is made on other grounds and then fitted into the prongs.”[69] Understanding how judges decide will improve how lawyers craft their arguments to make them persuasive.
Justice Ginsburg’s commitment to clear communication was foundational to her success. Her meticulous approach to legal writing enabled her as a litigator to persuade judicial readers and as a judge to build consensus on the bench. The care she put into writing — to make sure everyone would understand what she wrote — helped her become the beloved icon she’ll always be.
This column continues in the next issue of the Journal with what the great writers can teach legal writers.
[1] “‘The Most Important Woman Lawyer in the History of the Republic’: How Did Ruth Bader Ginsburg Change America? More Than a Dozen Legal Thinkers Weigh In,” Politico, Sept. 18, 2020, https://www.politico.com/news/magazine/2020/09/18/tktk-418191.
[2] Ruth Bader Ginsburg, My Own Words 18 (2018) (ebook); Beth Saulnier, “Justice Prevails: A Conversation with Ruth Bader Ginsburg ’54,” Cornell Alumni Mag. (Nov./Dec. 2013), http://cornellalumnimagazine.com/justice-prevails/.
[3] Ginsburg, supra note 2, at 19; Linda Greenhouse, “Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, is Dead at 87,” N.Y. Times (Sept. 18, 2020), https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html.
[4] Ginsburg, supra note 2, at 19.
[5] Id.
[6] Id.
[7] “Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff,” ACLU, https://www.aclu.org/other/tribute-legacy-ruth-bader-ginsburg-and-wrp-staff.
[8] Anthony D. Romero, “In Memory of Justice Ruth Bader Ginsburg (1933-2020),” ACLU, Sept. 19, 2020, https://www.aclu.org/news/civil-liberties/in-memory-of-justice-ruth-bader-ginsburg-1933-2020.
[9] Id.
[10] Id.
[11] Ginsburg, supra note 2, at 19; Greenhouse, supra note 3.
[12]Greenhouse, supra note 3.
[13]Ginsburg, supra note 2, at 19.
[14]Greenhouse, supra note 3.
[15]Id.
[16]Romero, supra note 8.
[17]Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015).
[18]Romero, supra note 8.
[19]Id.
[20]Gary Grumbach & Adela Suliman, “Hundreds Mourn Ruth Bader Ginsburg in Vigil Outside Supreme Court,” NBC News, Sept. 19, 2020, https://www.nbcnews.com/politics/supreme-court/hundreds-mourn-ruth-bader-ginsburg-vigil-outside-supreme-court-n1240531.
[21]“Mourners Gather at Vigils Across the County in Ginsburg’s Honor,” N.Y. Times, Sept. 19, 2020, https://www.nytimes.com/2020/09/19/us/politics/supreme-court-ruth-bader-ginsburg-live.html.
[22]Id.
[23]Id.
[24]Id.
[25]Julie Zauzmer, “‘Blessed is God, the True Judge’: Ginsburg Memorialized in Hebrew in the Halls of the Supreme Court,” Washington Post, Sept. 23, 2020, https://www.washingtonpost.com/religion/2020/09/23/ginsburg-memorial-rabbi-jewish/.
[26]Id.
[27]Bryan A. Garner, “Interviews with United States Supreme Court Justices: Ruth Bader Ginsburg,” 13 Scribes J. of Legal Writing 134 (2010).
[28]“The Most Important Woman Lawyer in the History of the Republic,” supra note 1.
[29]See Greenhouse, supra note 3; Ross Guberman, “Justice Ginsburg the Writer: Something in Between,” SCOTUSblog, Sept. 23, 2020, https://www.scotusblog.com/2020/09/justice-ginsburg-the-writer-something-in-between/.
[30]Greenhouse, supra note 3.
[31]“Stanford Law Faculty on Justice Ruth Bader Ginsburg’s Legacy,” SLS Blogs: Legal Aggregate, Sept. 18, 2020, https://law.stanford.edu/2020/09/18/stanford-law-faculty-on-justice-ruth-bader-ginsburgs-legacy/.
[32]Garner, supra note 27, at 144.
[33]Id.
[34]Ruth Bader Ginsburg, Foreword to Bryan A. Garner, Garner on Language and Writing xiii (2009).
[35]Id.
[36]Id.
[37]Garner, supra note 27, at 133.
[38]Id. at 135.
[39]Ruth Bader Ginsburg, “Ruth Bader Ginsburg’s Advice for Living,” N.Y. Times, Oct. 1, 2016, https://www.nytimes.com/2016/10/02/opinion/sunday/ruth-bader-ginsburgs-advice-for-living.html.
[40]Garner, supra note 27, at 139.
[41]Shelby County v. Holder, 570 U.S. 529, 590 (2013) (Ginsburg, J., dissenting).
[42]Garner, supra note 27, at 139.
[43]Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 661 (2007) (Ginsburg, J., dissenting).
[44]Greenhouse, supra note 3.
[45]Garner, supra note 27.
[46]Greenhouse, supra note 3.
[47]Garner, supra note 27, at 137.
[48]Id.
[49]Id. at 134.
[50]Id. at 135.
[51]Id. at 137.
[52]Id.
[53]Id.
[54]Id. at 142.
[55]Id.
[56]Id.
[57]Id. at 134.
[58]Id.
[59]Id. at 143.
[60]Id.
[61]Id. at 141.
[62]Id.
[63]Id.
[64]Id. at 135.
[65]Frances Katz, “How Vladimir Nabokov Helped Ruth Bader Ginsburg Find Her Voice at Cornell,” Medium, Mar. 19, 2018, https://medium.com/@francesk/how-vladimir-nabokov-helped-ruth-bader-ginsburg-find-her-voice-at-cornell-e87e68f49f71.
[66]Catherine Crocker, “Ginsburg Explains Origin of Sex, Gender: Justice: Supreme Court’s Newest Member Speaks at Her Old Law School and Brings Down the House with Her History Lesson About Fighting Bias,” L.A. Times (Nov. 21, 1993), https://www.latimes.com/archives/la-xpm-1993-11-21-mn-59217-story.html.
[67]Id.
[68]Id.
[69]Garner, supra note 27, at 138.
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