THE VFA PIONEER HISTORIES PROJECT
Ruth Bader Ginsburg
March 15, 1933 – September 18, 2020
“My eyes were opened in 1963 and by the late 60s I was there at the right time when society was ready to listen. – Justice Ginsburg on women’s rights.
Interviewed by Lynn Hecht Schafran at the VFA Salute to Feminist Lawyers event, 2008
MF: I am Muriel Fox, and this is such a legendary gathering – everyone in this room is a legend. I’m going to introduce very briefly Lynn Schafran, who is going to interview our legend of legends. Lynn is the director of the Judicial Education Project of Legal Momentum formerly, now Legal Defense and Education Fund. She also created this fantastic gender bias task force preventing gender bias in the courts and in the legal systems. It is my privilege to introduce Lynn Schafran.
LS: In 1980, when Justice Ginsburg was about to be sworn in as a judge of the D.C. Circuit Court of Appeals she told me that there was a problem with respect to the room in the courthouse where the ceremony was going to be held. She told me that the beautiful ceremonial courtroom was too small and that the room that was big enough to hold everybody was not very attractive. So, I suggested that she could have her swearing in on the Washington Mall and then all the women who were grateful to her could come.
About two weeks ago, one of the U.S. marshals who provides security for Justice Ginsburg when she’s in New York, called me up to ask about the nature of [this] event. He asked what the crowd would be like. I said the word adulation would be the operative word for this event. This really is an occasion when the honoree needs no introduction to her audience. And I would say that her audience needs no introduction to [the] honoree because so many of us in this room have had the wonderful good fortune of working with Justice Ginsburg through the years that she was a law professor. Some of us have even appeared before her in her two judicial positions.
She’s been called the legal architect of the modern women’s movement. She is, of course, the second woman on the U.S. Supreme Court. We are very honored that Justice Ginsburg would make time to be with us today. Our format is very informal. I get to ask leading questions for about half an hour and then Justice Ginsburg has graciously agreed to take your questions.
The first question, Justice Ginsburg, is this: the years that we’re focused on are 1963 to 1975. In 1963, you became one of the country’s extremely few women law teachers when you were given a contract appointment as the second woman on the Rutgers Law School faculty. You were hired because you were an expert on civil procedure and that is what you began teaching. And then within a few years, you were doing litigation on behalf of women who were discriminated against in their employment circumstances. You created one of the first women in the law seminars. You began working on a textbook, and then you became the head of the newly established ACLU Women’s Rights Project, which continues to this day.
What caused you to switch from this intense focus that you had, even to the extent that you went to Sweden and learned Swedish to be able to write about their civil procedures. What took you onto the path that we are celebrating you for today?
RBG: It was that the women’s movement came alive again in the ’60s. Until 1963, it was hopeless to advocate for women’s rights, because you were in an era when people were not prepared to listen. And it wasn’t until the ’60s, it was not simply the civil rights movement that was going on, but there was a women’s movement alive all over the world. Betty Friedan has been mentioned in this gathering. The woman who really opened my eyes was Simone de Beauvoir, The Second Sex. That was published in 1948 and republished many times.
1963 was the year I was in Sweden; they were considerably ahead of us. It was well accepted that a woman would be working, but also that she would have dinner on the table at 7:00, buy the children’s new shoes and all the rest – there was a column in the Stockholm daily paper to that effect. Why should the woman have two jobs and the man only one – it is not enough that he takes out the garbage? Another event also in Sweden, involved a woman named Sheri Finkbine. She had taken thalidomide and was at risk of having a terribly deformed fetus.
She couldn’t get an abortion in Arizona, so she came to Sweden where she thought a safe abortion would be available to her – as it was. So it was that this woman from the United States could not exercise her choice in her own country. And this notion that it’s right and proper for women to work, but it is right and proper for a man to be an equal partner in bringing up the next generation and taking care of the home. The idea was formed, then there was still not very much that one could do about it.
I was there in the right place at the right time. Reed v Reed was the turning point sex discrimination case in the Supreme Court. It was decided in 1971 and was the first time ever the Supreme Court found a gender classification in the law unsatisfactory. Sally Reed wanted to be appointed administrator of her teenage son’s estate. He had committed suicide while in the custody of his father. The mother had preference when the child was of tender years. But Richard Reed was a teenager, prepared for living in a man’s world.
So, the judge thought the father should have custody anyway. Sally wanted to be the administrator of his estate, the lawyer said, as between two persons equally entitled to administer antecedence, estate males must be preferred to females. Ideal case. But if the Supreme Court was ever going to say that a law violates equal protection because it discriminates against women, it was that. Well on the debrief we put two names as lead counsel. One was Pauli Murray and the other was Dorothy Kenyon.
Those two women had been saying the same things that we were saying to the court, but they were saying it at a time when society was not yet ready to listen. Our point was that we had the great good fortune to be there at the right time when society would listen. But these great women said the same things that we were saying, and they kept the idea alive, although it wasn’t possible for it to be successfully realized in the age that they were living.
LS: When you mention Reed v Reed, I discovered that I was ignorant about a critical fact in that case. You are so strongly associated with that case that I just assumed that you argued it. But in point of fact, you didn’t. You wrote the brief, but you didn’t argue the case. That was very interesting to me. But you did argue six other cases before the Supreme Court and you won five and you wrote an astonishing number of briefs or amicus briefs or certiorari petitions, basically in every important women’s rights case that came along.
And even if your name wasn’t on it, you were consulting with the attorneys who were doing it in terms of the challenges that you faced, they really come clear when you read Linda Greenhouse’s biography of Justice Blackmun. I know that you and he ultimately became good friends, but he had some astonishing things to say about your arguments. And they’re particularly astonishing to any of us who know you, because he chose adjectives that are so inappropriate that we just have to wonder what was going on there.
He described the brief we read as mildly offensive and arrogant; a very lengthy brief filled with emotion. Now, is there anyone who argues with more dispassion than Justice Ginsburg? I don’t know. And then he graded some of your appearances before the court and you never got an A from Justice Blackmun. I love the one where he called you too smart. But the one that I really liked was in 1976 you argue Califano v Goldfarb and Justice Blackmun wrote about your clothing. And this is a quotation “in red and red ribbon today”. “I thought of you as the matador twirling the cape who keeps sticking in those very pointy things and making us face up to things we don’t want to face up to. These men were in an emotional whirl over what you kept bringing to them.”
So, my question is, what was that particular strategy you had in mind when you wrote that emotional brief in Reed v Reed? Perhaps you’d like to talk more about your strategy over the course of these many cases. And then what was it like to argue in 1973? There you were in 1973, one of the first women to argue in the court, arguing a women’s rights case. How did that feel, and then did it change over the years?
RBG: The first case that I argued, and it was a divided argument, was Frontier against Richardson. I divided it with counsel for the Southern Christian Poverty. I had twelve minutes of the argument; Justice Brennan had the rest. I was up second. He was going to argue rational basis, this law fails even the rational basis test. I was going to suggest heightened scrutiny, strict scrutiny. My argument went from beginning to end without an interruption. I was dismayed. Do they think they’re letting me just do this for a show? Why haven’t they asked me any questions?
And then was just amazed and delighted to see that in Justice Brennan’s opinion, he lifted all passages of that brief and put it in the court’s opinion in front of Frontier against Richardson. There’s no higher compliment that a lawyer can have then a brief shows up in the court’s opinion.
The last case that I argued before the court was about the state of Missouri not putting women on juries if the women didn’t want to work. The clerk in Kansas City would send a notice that you were called for jury duty and on the card, it said: if you are a woman, you need not serve, if you don’t want to serve check here. If the card was not returned, the clerk would make the assumption that the woman did not want to serve with the result that the juries were virtually all male.
The public defender in Kansas City in every case complained that the jury was not selected from a pool that represented a fair cross-section. That was a divided argument, too, with the Kansas City public defender. I was second and when I got finished. I sat down with the great sense of relief because I got out all the essential points that I had planned to make. My later chief and then Associate Justice Rehnquist said at the end of my argument: Mrs. Ginsburg, you are not satisfied with Susan B. Anthony’s face on the new dollar? This is 1978 , it’s still appropriate to make that kind of joke.
Let me flash forward to my swearing in ceremony at the court. Associate Justice Rehnquist is now the chief. My commission is going to be presented by Janet Reno. Most attorneys general like to be called general, but Janet Reno said she was not a military officer and she just wanted to be called Ms. Reno. The chief was not accustomed to using Ms. We had a little dress rehearsal and he said Ms. Reno, Ms. Reno a few times so that he would feel comfortable. What a change from Susan B. Anthony’s face on the new dollar to that wonderful moment when my commission was presented by then Attorney General Janet Reno.
LS: The fact that you chose to read your dissents aloud in the Ledbetter case and then in the Carhart abortion rights case was very striking to many people. What made you feel that you needed to not just publish your dissent as is typical, but actually make those statements orally from the bench at the same time that the majority opinion was announced?
RBG: One reads the dissent when one thinks that the court’s opinion is not just wrong, but grievously so. I’ve been on the court now for 15 years, it’s hard to believe. Up till then, I had a total of something like six dissents announced from the bench and that year I announced two. Never before had I announced two and most years none. My dissent was written, and people could read it, but I wanted to capture the attention of the public and in Lilly Ledbetter’s case, the attention of Congress.
There was a corrective bill that passed the House easily. It stalled in the Senate. Perhaps one of the reasons is that the White House announced that if the bill passed, the president’s advisers would counsel him to veto the measure. But the measure is there, and I am confident that in another Congress it will be passed. I can also say that the court was criticized rather strongly for its blindness in that case. So far this year, the employment discrimination cases have all gone to the challenger. There has been some rethinking of what the court did in the Ledbetter case.
LS: Young women lawyers are deeply concerned about the question of whether they can have a successful and demanding career and also have children whom they see in daylight. And there are also increasing numbers of young men lawyers who are asking that question. You and your husband, Marty Ginsburg, a tax lawyer and a professor, raised two very successful children.
Jane is a law professor at Columbia and an international authority on intellectual property. James, who produces classical music records, won two Grammys this year. So, two very successful progeny. And you did it while the two of you both had extremely demanding careers. So, for young women who were wondering how you did it and how they might do it, what are your words of sage advice?
RBG: Have a life partner who thinks your work is at least as important as his and who is a great chef. Marty sustains me in every way. I was phased out of the kitchen by my food loving children before we even moved to D.C. Even now, the kitchen is totally Marty’s domain, I’m not allowed to do anything in it. We married, by today’s standards, rather young. Marty was 22 and I was 21 and we had a notion that whatever we did, we were going to do together.
When we were students at Cornell, medical school was a possibility, but that lost out to golf practice because there were labs in the afternoon. Then we thought about business school and Marty for some reason wanted to go to Harvard and the Harvard Business School did not admit women until sometime in the ’60s. So, there we were, left with law school. You need to have the people closest to you in your corner. If they’re not, it’s terribly difficult.
LS: This is prompted by the fact that Judicature Magazine has a very long article in the spring issue that’s called “The Attorney Gender Gap in U.S. Supreme Court litigation.” It’s by three political scientists and they analyzed the number of women and men attorneys arguing to the Supreme Court in the years 1993 to 2001. The numbers come out to 150 out of 1,078: 14% were women lawyers. Even in the women’s rights cases, the people arguing are men or men on one side.
They couldn’t identify any case where there were women on both sides in a women’s rights case. That analysis ended in 2001. I wondered if you’ve seen any improvement in those figures in the years since and if you have any advice for women who would like to develop a Supreme Court practice, maybe some of the women in this room?
RBG: I wouldn’t recommend that anyone aim for a Supreme Court practice unless you have another source of income. We take so few cases. We have had more than an occasional case in which women were on both sides. The Supreme Court tends to trail other institutions with respect to change. I wish I could tell you that there has been a steep rise in the number of women arguing before the court. I can tell you one positive thing. It came to my attention that in all the years the Supreme Court has been in existence, there has never been a woman appointed special master in any case. That was the last threshold that women had not crossed.
Just a few months ago, Chief Justice Roberts announced that a woman had been appointed a special master in a case between North Carolina and South Carolina, some watery rights case. Now there’s nothing that a woman hasn’t done. There are not enough women, who argue before the court, but also the law clerks. The court has done better this year than last year when they were really at the bottom with only seven women working.
What we see more and more are law clerks with children, and no one thinks that’s a large problem. I have one Clerk this year whose boys are 8 and 10. Justice Scalia has had women raising children. Years ago, that would have been an unthinkable combination. How could we hire a mother as a Supreme Court clerk? Well, now there have been a number of mothers and they’ve done a very good job, so that’s not an issue. The returns are mixed, I expect that as more women become specialists in appellate advocacy we will see more women arguing before the court. But there are certainly more women arguing before the court now than they were and when I was a young lawyer.
LS: Justice Ginsburg has very kindly agreed to take questions.
BB: Barbara Babcock from California – just wanted to reminisce for a minute. When I first came into academia people thought that Ruth Ginsburg was ruining a very promising career by taking these “stupid women’s cases”. Her appointment was the sweetest thing to me for that reason. So, I just wanted to share that.
RBG: May I say that I would not be standing here today were it not for Barbara Babcock. When Carter became president there was one woman on a court of appeals in the entire country. She was only the second in history, Shirley Hufstedler. Carter made her the first ever secretary of education, and then there were none. But he was determined to change the complexion of the U.S. judiciary by appointing members of minority groups and women in numbers.
Well, my name was one of the names on the list for appointment to the D.C. Circuit, but not much was happening. Barbara was in my corner and the first thing that she did was get Judge Barzman to take senior status judgments on. He had been the chief of a D.C. Circuit forever and he wasn’t inclined to take senior status. I think you told him that he risked having someone that he wouldn’t like so much appointed. That cleared the way for Harry Edwards. And then I got the next seat on the D.C. Circuit. Barbara was head of the civil division in the Department of Justice and the largest division by far at Justice.
Unidentified Woman: Justice Ginsburg, I come from the state of Washington where several times in the last decade we’ve had a majority of our Supreme Court as female. I’m wondering if you see any future in the Supreme Court of the United States having a majority of female justices.
RBG: I certainly do. I just came here from my Second Circuit Judicial Conference, and one of the questions I was asked, was what do I think of the idea of having a seat reserved to be sure that the next appointee is a woman? I said that I see in the fullness of time there will be many, many women. There’ll be so many women that maybe we would think seriously about having one seat reserved for a white male.
We are terribly behind in that respect if you look at the U.S. Supreme Court. But look at our state courts, seventeen state supreme courts are now headed by women. There have been 10 women who were chief judges of a federal circuit, it’s an enormous change from the way it was in the not so good old days. The states of North Carolina, South Carolina and Georgia each have a woman as the chief judge. These are women who are super bright and very well respected.
BB: My name is Barbara Berg, and I would like to ask you what you think the prospects and future of Roe v Wade is in our country. Particularly, if you would please comment on the movement in America to declare fetuses personhood and to give them those rights.
RBG: Sarah Weddington is here, and she argued Roe v Wade. She’s another person responsible for my appointment to the D.C. Circuit because she was counsel to President Carter at the time and she really urged my nomination incessantly. People tend to think that Roe v Wade has to be preserved at all costs. What has to be preserved is the right of a woman to have access to the means to control her own reproductive capacity. It has to be much more than the bare right of a woman of means to obtain an abortion.
The government has a policy that there is no Medicaid reimbursement for abortion, but there is for childbirth. I think that the concentration really should be at the legislative level in the states and in Congress, assuming the composition of Congress will continue to change, but I would never put my faith in one single Supreme Court decision. The work really has to start at the local level. I remember once in New York trying to find out how hard it was for a poor woman even to get an IUD. It was terribly hard. That’s the group that we should be concerned about.
MH: Hi, my name is Merle Hoffman, and I want to follow up on your question about abortion rights. I read a paper of yours written many years ago where you were stating that you really didn’t believe that the fundamental right of reproductive freedom should be based on the right to privacy. But I think it’s on the 13th Amendment or the 14th against slavery, because obviously, if a woman is forced to bear a child against her will, I would consider that a form of slavery. Do you think there’s any way that lawyers now should be working towards recasting the argument of reproductive freedom, taking it away from Roe and the right of privacy to something much deeper?
RBG: I think lawyers have argued that in the Casey case, for example, that it’s not privacy in the sense that this is something I want to do and hide from everybody and see myself in a cocoon. Its autonomy is the idea. It’s a woman’s right to choose. I have criticized the court’s decision in Roe v Wade, not, of course, for the result, but that decision is heavily oriented to doctors. It’s the doctor’s choice as much as the woman’s.
The government shouldn’t regulate what doctors decide is best for the patient. But I think the notion of a woman’s autonomy to determine her life’s course has come more and more into the more recent cases. Of course, the most recent case is a flip flop: the court had held that Nebraska’s so-called partial birth abortion laws were unconstitutional because it didn’t have a reservation for a woman’s health. Then Congress passed a law to the same effect and the court, 5-4 upheld that federal law. What was the difference? One person. Justice O’Connor was no longer on the court. I think the notion that it isn’t just some private act, it is a woman’s right to control her own life.