Preprint
Rethinking RBG's Incrementalism
SSRN Electronic Journal
2026
Abstract
When Ruth Bader Ginsburg died in September 2020, commentators piled on the laudatory adjectives to describe her career: feminist, trailblazer, icon, notorious, advocate, pioneer, and more. But amidst this string of praise frequently appeared another adjective, one that tempered the impression of Justice Ginsburg as a path-marking radical: incrementalist. This characterization of Ginsburg has a long pedigree, some of her own making, as she and others used the label throughout her career to describe a lawyer and judge who took measured steps to accomplish long-term goals. With the frequent repetition of this particular description, it seems clear that the idea of Ginsburg as incrementalist appeals to admirers of Ginsburg’s career and legal accomplishments. For many, it may feel intuitive to read Ginsburg’s success in changing legal norms regarding sex discrimination and sex equality through a lens of incrementalism because, as social theory tells us, when legal changes outpace public opinion and conditions on the ground, backlash occurs. The incrementalist label may also accord with public perception of Ginsburg’s appearance. Her proper, conservative dress and manner combined with her modest physical stature projected quite the opposite of a firebrand or radical. This Article challenges the traditional understanding of Ginsburg as an incrementalist. We draw on the briefs she wrote and her arguments before the Supreme Court, the positions she took as a jurist, and her own scholarly writings to suggest a more accurate assessment of Ginsburg as a bold advocate whose conviction in the justness of her cause led her to seek profound changes in American law and culture over a relatively short period of time, rather than support half-measures in pursuit of a long-term goal. Whatever the reason for the appeal of the incrementalist label, calling both lawyer Ruth Bader Ginsburg and Justice Ruth Bader Ginsburg an incrementalist is a mistake. Doing so misrepresents the legal arguments she made as a lawyer and misunderstands the historical backdrop against which those arguments came before the Supreme Court. It also is a revisionist and incorrect description of what she voted for and accomplished while she was a Justice on the Supreme Court. In short, the characterization of Ginsburg as an incrementalist is an oversimplification that often gets the story wrong—and in doing so, leads to an underappreciation of Ginsburg’s vision of feminism and equality, as well as missed opportunities to learn about effecting meaningful legal and social change from her life’s work.
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Details
- Title
- Rethinking RBG's Incrementalism
- Creators
- David S. Cohen - Drexel UniversityElizabeth Kukura - Drexel University
- Publication Details
- SSRN Electronic Journal
- Publisher
- SSRN
- Resource Type
- Preprint
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Other Identifier
- 991022171480904721