"I want to emphasise to you that understanding the impact of gender oppression does not mean that you will understand racial oppression. I believe that you will champion those concerns that you think are important, and I, as one member of the Academy, want to challenge you to hear the unspoken voices of racial oppression in your deliberations, voices that many of your colleagues cannot and do no desire to hear. To do that sometimes means not compromising on concerns fundamental to the poor, to racial minorities, or to women. Sometimes justice requires a Brown or a Roe to alter and structure our conversations. It is that difficult task that I ask you to undertake." (1)
There are numerous images and quotes doing the social memia rounds featuring Ruth Bader Ginsburg’s comments on take the knee protests, which serve to question her record in relation to issues of race. She is quoted as saying:
“I think it’s really dumb of them ….Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it….I would point out how ridiculous it seems to me to do such an act. But it’s dangerous to arrest people for conduct that doesn’t jeopardize the health or wellbeing of other people. It’s a symbol they’re engaged in.”
Ginsburg was a pillar of the US establishment – a liberal, not a radical. She was immersed in that rarefied culture of constitutional law and jurisprudence within which lawyers and judges wander along interminable, convoluted paths of legal logic and precedent to arrive at opinions which sometimes challenge powerful vested interests but seldom get to grips with the structural inequalities that are cemented into the very foundations of the wider economic system the US constitution was intended to serve and protect.
She addressed herself mainly to unfair discrimination on the grounds of sex and was always the pragmatist; for example, she initially used cases which highlighted where sex discrimination was unfair to men to prove her point and, because that’s how the system works, to make her legal name.
She was as opposed to race-based unfair discrimination as she was to sex-based discrimination but she was a product of her class and her time, and she believed the foundations of the system she served were solid. It was just aspects of the superstructure which needed refurbishment and modernisation.
When, at the age of 83, she was faced with a question about what many (maybe most) Americans see as a gesture of disrespect for the anthem and the flag – those symbols of American imperialism and manifestations of the ideology of American exceptionalism – her establishment roots were showing.
She was wrong in her choice of words – dumb, disrespectful, terrible, ridiculous – and although she apologised subsequently – she perhaps betrayed an intellectual arrogance and disregard for what avenues are open to less privileged people to speak truth to deeply entrenched power.
The gesture, like the Black Power salute at the 1968 Olympics, was symbolically powerful and it focussed attention on the on-going reality of race-based oppression in the USA – and, by extension, elsewhere.
Ginsburg's words remind us of the depth of the attachment that many Americans have to the idea of the flag and anthem as symbolic of not just national identity, but national exceptionalism.
Most American children recite the Pledge of Allegiance and salute the flag every morning at school. The great majority of US states have laws requiring school boards to ensure children recite the pledge daily. The recitation is accompanied by a salute that, before WW2, was almost identical to the Nazi salute and was changed to the current hand on heart salute. The phrase “One nation under God” was added in the early 1950s as an ideological volley in the Cold War and to bolster the view that the American corporate way was ordained and blessed by the Almighty.
We all need to be aware that many Americans’ belief in their own exceptionalism is deeply rooted and has a tendency to sucker wildly when it perceives itself to be under attack.
1) From an open letter from black legal scholar Jerome McCristal Culp on the appointment of Ginsburg to the Supreme Court in 1994.)
