Ruth Bader Ginsburg and the Art of Positioning

Ruth Bader Ginsburg knew the importance of studying the competition, knowing her audience, and using the law to build air-tight strategies to advance who “we the people” stands for. Had we followed her foundationally sound approach in Roe v. Wade, reproductive rights wouldn’t be vulnerable to reversal today.
Eva Frye

Eva Frye

Founder of Two Hands

2020 has been the most chaotic, challenging global year in recent memory, yet a particularly big blow came when we learned of the loss of Justice Ruth Bader Ginsburg. Our Supreme Court Justice with a 27-year tenure never missed a single day in court, even hearing cases from hospital beds while sick with cancer.

What Ginsburg excelled at in law are common in business as well—using the power of strategy, positioning, and messaging. Her strategies moved an [at the time] all-male SCOTUS to widen the scope on who “we the people” stand for in our constitution. To do so, she had to deeply understand her audience and competitors, their behavioral psychology, and meet them where they were in order to enact change.

Yet all strategies are not created equal. Had we followed RBG’s strategically sound approach in Roe v. Wade, reproductive rights wouldn’t be vulnerable to reversal today. RBG’s approach, and her critique of the landmark case, teach us how to set strategy that stands the test of time.

The Incrementalist Strategy

Strategy (n): the art of planning and directing overall military operations and movements in a war or battle.

Business, justice, politics—winning anything, really—is often viewed as a battle. Violent metaphors aside, we study the industry to understand how to win. We study the competition to know which smart or paltry positioning and tactics are already in action, and to see where we can fill holes. We study the audience to know their behavior, how they think, and why. The entire aim of strategy is to skillfully zig when others zag.

As a litigator, RBG studied legal strategies and tactics that worked. She was largely influenced by Thurgood Marshall, who advocated for civil rights legislation for Black Americans while at the NAACP. The strategy that he developed was small, incremental gains, to ultimately build more equity for Black Americans.

Ginsburg saw incrementalism as a strategy that worked for marginalized communities, and reckoned that it could similarly be helpful to advance women’s rights.

Ginsburg saw incrementalism as a strategy that worked for marginalized communities, and reckoned that it could similarly be helpful to advance women’s rights.

“There are two core tenets to Justice Ginsburg’s strategy—the first was incrementalism. You advance the ball a few yards at a time, you don’t throw a Hail Mary and try to get the touchdown,” said Chris Ramos, Founding Director of Time Foundation, whose mission is to give lawyers back time so they can advocate for equitability. Called “a litigator’s litigator” by his colleagues, he’s studied constitutional law in-depth.

While other Hail Mary strategies certainly exist in law and business, the gap between where she was, and where she needed to be, was too great here. She knew her audience wasn’t ready for sweeping changes. She understood that in this industry, with her audience of male SCOTUS Justices, to make gains, she had to play the long game.

Facts Before Drama

“The second core tenet of Ginsburg’s strategy was a focus on being dispassionate, and that’s something that gets lost in society today. Specifically in litigation, being dispassionate and able to persuade with just the law and the facts is something Justice Ginsburg was particularly adept at. All litigators try to emulate this—or at least the good ones,” said Ramos.

Facts, data, numbers, research, studies, science—these are the strongest tools of persuasion we have. While tugging on heartstrings is often employed in marketing, and is an important tool, make sure facts provide the backbone of arguments.

Build the Right Foundation—And Roe v. Wade ’s Shaky Footing

While strategy is important, RBG cared most about the legs those strategies had. She knew the importance of building on a strong foundation.

Poor strategic footing can lead to stumbling outcomes, even many years down the line.

“The abortion right recognized in Roe v. Wade is grounded in a doctor’s freedom to practice, not necessarily women’s rights. RBG disagreed with that strategy, and believed the case’s rationale disserved women by taking the focus off of their rights. A stronger strategy, according to her, would have been protecting a woman’s right to abortion under the Equal Protection Clause of the Fourteenth Amendment,” Ramos articulated. “Even though it was decided in favor of a right to abortion, since it was decided on shaky constitutional ground, it’s left vulnerable today.”

“The abortion right recognized in Roe v. Wade is grounded in a doctor’s freedom to practice, not necessarily women’s rights. RBG disagreed with that strategy, and believed the case’s rationale disserved women by taking the focus off of their rights.” —Chris Ramos
Timing is Everything—How Poor Timing Made Roe v. Wade the Wedge Issue of the Century

There are other critiques of Roe v. Wade. Some, including Ginsburg, would argue that the country wasn’t yet ready for it. As such, it moved national attention to abortion, eventually turning it into the wedge issue of our time. This demonstrates that if your audience is not ready for what you give them, it can easily backfire.

“RBG thought the country wasn’t yet ready for a law this sweeping,” Ramos explained. “Now, 50-60 years later, abortion remains a polarizing topic, she’d say, because that battle wasn’t chosen wisely.

“Even though the result was favorable, it’s not as strong as it could have been. Justice Ginsburg understood that some wins are stronger than others. Viewing problems through that strategic lens, whether in a litigation or business context, is important. It’s about cognizantly picking battles, and thinking about the long term,” Ramos summed up.

Sportsmanship Moves the Needle

In today’s world of outrage media and politics, it seems those who get the biggest rises win. Yet while rage gets reactions, diplomacy gets things done.

“One of the most misunderstood pieces of the Supreme Court is that all of the Justices actually get along famously. There isn’t this extreme and acute political divide that we’re seeing play out in other parts of our society. Although the Justices are just as distributed along the political spectrum, they do not manifest in anything but respect and deference for each other. In the Supreme Court, you can be ideologically different, yet extremely collegial and work well together,” said Ryan Alshak, ex-litigator, and another Founding Director of Time Foundation.

“One of the most misunderstood pieces of the Supreme Court is that all of the Justices actually get along famously… Although the Justices are just as distributed along the political spectrum, they do not manifest in anything but respect and deference for each other.” —Ryan Alshak

In Ginsburg’s case, “She cared most about having a productive discussion, even in the face of the many discriminations she was facing. The upside is if you are open to ideas, you can create better ideas. The downside is that diplomacy can stall advancement if taken too far,” said Niket Desai, Founding Director of Time Foundation.

“She cared most about having a productive discussion, even in the face of the many discriminations she was facing. The upside is if you are open to ideas, you can create better ideas. The downside is that diplomacy can stall advancement if taken too far.”—Niket Desai

RBG’s diplomacy and argumentation is, and should always remain, a reminder of what the end goal is—progress.

Winning Messaging—Meet Them Where They Are

The art of messaging is filtering everything through the lens of your audience. It tells you what to say, and even when to say absolutely nothing—a skill Ginsburg employed with finesse and mastery.

A little told story about RBG is during her last case as a litigator, in Duren v. Missouri. She represented a case about jury duty, where she argued that women should not be able to opt-out of jury duty, positing that their contribution and judgement were equally important as men’s in the eyes of the law.

“You won’t settle for Susan B. Anthony on the dollar, then?” Justice William H. Rehnquist, the only dissenting judge, quipped into the microphone.

Ginsburg wanted to respond with, “We won’t settle for tokens.” Yet she opted NOT to say anything.¹

Had she said,“We won’t settle for tokens,” she could have risked losing the ear of the court. She had to meet them where they were, and she had limited margin as a woman in a man’s courtroom. She astutely didn’t say this, and did end up winning the case. If you say the wrong thing at the wrong time, you will lose your audience.

Had she said,“We won’t settle for tokens,” she could have risked losing the ear of the court. She had to meet them where they were, and she had limited margin as a woman in a man’s courtroom. She astutely didn’t say this, and did end up winning the case. If you say the wrong thing at the wrong time, you will lose your audience.

Justice Ginsburg didn’t light the court on fire, she did not polarize. She played the incremental, long game, based on sound strategic footing, which successfully moved the needle forward on equity. May we all learn from her winning approach: strong strategy, stable footing, expert positioning, sportsmanship, and apt messaging. A hero and icon for this brand strategy firm.

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