Ruth Bader Ginsburg: a folk hero in a profession of expensive villains

Image: Sebastian Kim

This article was also published by the Swanston Gazette

The death of Ruth Bader Ginsburg marks the loss of one of the last noble figures in the legal profession. Justice Ginsburg was as loathed by the global right for her stance on abortion as she was beloved by the global left for her views on equality. But it is likely that ‘the notorious RBG’s’ legacy will mark her as something of a peculiarity. The modern legal profession is inhabited with more villains than folk heroes.

Ruth Bader Ginsburg hit the big time as a US attorney, arguing trailblazing gender equality cases before the Supreme Court she would eventually join. Having fought to educate herself and find employment in a male dominated legal profession, Justice Ginsburg was celebrated a pioneer in her own lifetime. Her passing seems to demand more than just mourning for the loss of the lady, but the qualities she embodied.

Television heroine Ally McBeal possibly put it best: “Law and love are the same; romantic in concept, but the actual practice can give you a yeast infection.”

Even as Justice Ginsburg was cutting her legal teeth in the 1960’s and 70’s on important gender equality cases, American litigiousness was conquering the world. The US legal system became a hungry, profit-making enterprise as hard-won precedents to ensure equality and safety were applied on an industrial scale. The cash windfall of legal victories became sought-after. The lawyers who could deliver them became high-priced property. Progress became subservient to profit.

Good lawyers were never popular, or cheap. But good justice, in a democratic society, was never intended to be exclusive. By the time Justice Ginsburg was sworn to the SCOTUS bench, bringing a case before her jurisprudence cost upward of US$250,000; not including the legal fees of taking a case through local, district and appellate courts first.

The prohibitive cost of legal expertise has become an unacknowledged global crisis. In Australia, senior court barristers charge up to $25,000 a day. In 2019, the Australian legal industry brought in revenue of over $20 billion. The global legal services market is currently valued at US$728.5 billion, a value expected to increase US$120 billion by 2023.

“One of the world’s greatest jurists, Judge Learned Hand said that the spirit of liberty that imbues our constitution must lie first and foremost in the hearts of the men and women who compose this great nation. A community where the least shall be heard and considered side by side with the greatest. I will keep that wisdom in the front of my mind as long as I am capable of judicial service.”

Ruth Bader Ginsburg during her Senate confirmation hearing in 1993.

Lawyers have become expensive specialists in everything from defamation to tax evasion. Backed by sprawling international firms with an army of workers at their disposal, they can outmanoeuvre in court on research alone. Unfavourable decisions can be appealed to higher courts with lengthier processes and more expensive fees. Money is a powerful weapon in the modern legal system.

The American legal system has long faced the same extremes as it’s health care industry. But it’s never faced the same level of public debate or criticism or become a vital electoral issue. In the US and Australia, litigants unable to afford a lawyer or qualify for legal aid have begun to represent themselves. The trend has slowed court rulings and brought into question the ability of the modern judicial system to respond fairly in such cases.

The death of Justice Ginsburg has spawned the question: who will replace her? Who indeed. Even from Ginsburg’s own generation, it’s difficult to sort the legitimate jurists from the rogue’s gallery of rain makers and ambulance chasers. The dollar signs in the eyes of the legal industry have only darkened since, with no end in sight.

A beloved yet controversial figure, Justice Ginsburg’s legal legacy is likely to be re-written by an increasingly conservative set of legal textbooks. The news cycle in the weekend following her passing revealed the bipartisan view that America’s highest court is a weapon to be stacked with justices to suit competing political agendas. Justice Ginsburg never thought so.

It’s easy to romanticise a legal legend like Ruth Bader Ginsburg. The modern legal system is rife with inequalities, and one cannot be blamed for holding out for a hero of her stature to take up the fight in her place. Justice Ginsburg leaves a world in which her brand of equitable jurisprudence is a luxury – an increasingly rare one.