On April 10, the Ohio State Law Journal hosted a symposium entitled “The Jurisprudence of Justice Ruth Bader Ginsburg: A Discussion of Fifteen Years on the U.S. Supreme Court.” The symposium included an in-depth analysis of the Justice’s impact on constitutional law, statutory interpretation, civil and criminal procedure, reproductive rights, gender and race equality, and labor and employment law. Ginsburg also received an honorary degree from the University.
From the minute she hit the tarmac in Columbus via a U.S. Airways flight from Washington, the Justice was spellbinding. Gracious. Elegant. Patient. Brilliant. She ate lunch with faculty, students, and areas judges at the Barrister Club. She posed for photos. She answered questions. She opined about the role of the Court. She chatted about her favorite operas and travels. She was escorted throughout the day by 3L and Ohio State Law Journal Editor-in-Chief Dylan Griffiths. She sat in the Saxbe Auditorium and listened to the speakers discuss her impact on the law. She dined with more faculty and students for dinner while being entertained with opera music by students from OSU’s School of Music. She posed for more photos. She stayed at the Blackwell Hotel on campus.
And, she spent more than 90 minutes on stage answering questions submitted from faculty and students and posed by Deborah Merritt, a Moritz professor and former clerk of the Justice, and Wendy Webster Williams, the Justice’s official biographer from Georgetown University Law Center. Attendees learned that the battle for gender equity was more than about just women, and Justice Ginsburg marked her own personal victories along the way. She explained how timing and strategy have a lot to do with success. And that life on the Supreme Court is not always quite as it seems.
Ruth Bader did her undergraduate work at Cornell University and then became one of nine women out of a class of more than 500 at Harvard Law School in 1954, after a short stop in Oklahoma with new husband Martin Ginsburg. The newlywed soon found herself juggling the rigors of the first years of law school with an infant and a sick husband. When Marty was diagnosed with cancer, Ruth went to class and took notes for them both and typed Marty’s papers from dictation. Ironically, her mother died of cancer the day before her high school graduation. When Marty recovered, graduated, and took a job in New York, Ruth transferred to Columbia, where she made law review for the second time and finished tied for first in her class. Despite the stellar academic performance, she was not showered with job offers. No New York City law firm would hire her and, after an initial clerkship, she applied to the U.S. Supreme Court. Justice Felix Frankfurter replied that he was not ready to hire a woman as a clerk. Ginsburg instead began working on an international civil procedure project for which she spent nearly two years in Sweden studying and writing about the country’s civil system. In addition to learning a new language and judicial system, she was exposed to a new culture where dual-income families and working women were becoming the norm.
“I was hired by Rutgers law school in 1963, the year the equal pay act passed. My good dean explained that I would have to take a cut in salary, and I expected that because it was a state university,” Justice Ginsburg said during the April 10 event. “But when he gave me the numbers, I started to ask, ‘well what are you paying so and so, who was about the same age and years out of law school?’ And, he said, ‘well Ruth, he has a wife and two children to support and your husband has a good job in New York.’ When James was born in 1965, I was on a year-to-year contract. I feared that my contract would not be renewed if I revealed my pregnancy. My child was very cooperative in being born in the beginning of September. The school term ended in May. So I wore my mother-in-law’s clothes – she is one size larger — for the last couple of months. And then, with contract in hand on the last day of classes, I announced that when I came back in the fall there would be one more member of my family. Far from asking for any benefits, my concern was that if I revealed my pregnancy, it would be the end of my job. This was 1965, the year after Title VII passes.”
Ginsburg’s academic focus remained on civil procedure until 1970 when she started to focus on the law of gender.
“It was the time in which we were living. There was first the civil rights movement and then the revived women’s movement, not just in the United States, but all over the world,” Ginsburg said. “There were students at Rutgers who wanted a course taught on women and the law. And there were new kinds of complaints trickling into the ACLU of New Jersey. One whole group of complaints came from teachers who were being forced out of the classroom as soon as their pregnancies showed because, after all, the children should not think that their teacher had swallowed a watermelon. For my students, I went to the library and read every federal decision that had anything to do with women’s rights and some state court decisions and that was no mean feat at all because there were precious few of them. My eyes had been opened earlier when I was in Sweden.”
An Advocate for Women’s Rights
While there were various women’s rights groups forming and advocating for changes in the law, Ginsburg quickly decided to focus her attention on the ACLU. She became a volunteer lawyer for the group and later its chief litigator.
“Women’s status was going to improve only when it was on the human rights agenda,” Ginsburg said. “I think people who wanted to keep women down would like nothing better then for women to go off in a corner and speak only to women. Nothing would happen. You needed to persuade men that this was right for society, that it was right for their daughters and granddaughters. Another very practical reason is that the women’s litigating groups then didn’t have very much money. While the ACLU wasn’t a wealthy organization, it could put up $50K of its own money to get this thing started. It was the leading civil rights organization. If it could say that this issue was on its agenda, it would be great. And, this wasn’t so easy because the ACLU, to this day, its first client is the First Amendment. There was some concern from some ACLU members about getting involved in this equality business.”
While the equal protection clause was inserted in to the U.S. Constitution in 1868 the Court turned away every woman’s complaint that she had been denied equal protection by a state or federal law. That is, however, until 1971 when they ran into Ruth Bader Ginsburg in Reed v. Reed.
“It arose out of tragic circumstances,” Ginsburg said. “Sally Reed had a teenage son, Richard, and was separated from her husband. When he was little, she had custody. When he reached his teens, the father applied for custody and the probate court said ‘well, he is growing up and has to be prepared for a man’s world, and we think the father should have at least part-time custody.’ Sally fought against it very hard because she thought her ex-husband was a bad influence on her son and it turns out she was right. One night Richard took out one of his father’s mini rifles and killed himself. Sally wanted to be the executor of his estate and put in an application. Her ex-husband, perhaps out of spite, put in a rival application. The probate judge said the law tells me what to do: ‘between persons equally entitled to administer a deceased estate, males must be preferred to females.’ So, that was the decision of the probate court.”
Ginsburg co-wrote the brief in the case, but did not present the oral argument.
“That case was the first time the Supreme Court struck down, as discriminatory on the basis of sex under the equal protection clause, a statute,” Ginsburg said. “Before that the Supreme Court never saw a sex classification that it did not like. And, they were all considered to operate benignly in women’s favor.”
In 1973, Ginsburg tackled a case that demonstrated that gender discrimination did not affect just women.
“Charles E. Moritz took good care of his mother, who was 93,” Ginsburg said. “He was a book salesman. His mother lived with him and he needed someone to take care of her while he was away. He hired a nurse. When it came time to fill out his tax return, he knew about a babysitter deduction, which was very low in those days – $600. He took it. He was challenged. He appeared pro se in the tax court. He had a very simple brief he wrote in tax court: ‘If I had been a dutiful daughter, I would have gotten this deduction. I am a dutiful son. Isn’t that a denial of equal protection?’” Ginsburg said. “We argued the case. Marty, a great tax lawyer, and I divided the argument. One of the arguments the government made in this case is very interesting. It was that he would not be entitled to the deduction in any event because he had not proved that he was able to care for his mother, that the nurse was a substitute for himself. You could make the assumption that a daughter would be able to care for an elderly parent, but that was not apparent in the case of a son. The story of Charles E. Moritz’s life is that he was very devoted to his mother and knew very well how to take care of her, but that was the thinking those days – 1971. It took 18 months, but the Court decided that this distinction between dutiful daughters and dutiful sons was unconstitutional. It was the first time that we dealt with the extension issue. The last thing we wanted was for the Court to say the law was bad. The law was just fine, but you just forgot someone. Include the category you left out and then the law became constitutional.”
Several of the cases Ginsburg argued before the Supreme Court involved social security issues and men’s rights.
“The social security law followed the traditional breadwinner-homemaker view of life that men earned a living and women took care of the house and children,” Ginsburg said. “Stephen Wiesenfeld was a young man. His wife was a teacher, had a very healthy pregnancy, worked until the ninth month, went to the hospital to have the baby, and the doctor came out and said to Stephen, ‘you have a healthy baby boy, but your wife died of an embolism.’ Stephen vowed that he would not work full time until the boy was in school. He wanted to get Social Security benefits (and) child-care benefits so he could support himself and his infant. He went to the Social Security office, but was told, ‘sorry these are mother’s benefits, fathers do not qualify.’ Everyone of these plaintiffs were real people with a life story that was engaging, real, so genuine. He was the perfect plaintiff because we had discrimination against everyone in the Social Security system.”
In 1973, Ginsburg joined Columbia University as the first female tenured law professor. She often utilized the students in her clinical class to work on cases she was arguing on behalf of the ACLU Women’s Rights Project.
“I had a secretary at Columbia, and she said ‘I am typing these things for you and jumping out on the page is sex, sex, sex. … Don’t you know the audience you are addressing? The first association of the word sex is not what you are talking about. So, why don’t you use a grammar book term and use gender. It has a neutral sound and will ward off distracting associations.’” Ginsburg recalled. “From that day to this, I use gender.”
In total, Ginsburg argued six cases before the Court, winning five, and had her hand in numerous others. In 1980, President Jimmy Carter appointed her to the United States Court of Appeals for the District of Columbia Circuit. Ginsburg spent 13 years on the D.C. Circuit.
Life on the Supreme Court
In June 1993, President Clinton nominated Ginsburg to the Supreme Court and she was affirmed by the Senate by a 97-3 vote.
“One thing that was surprising is how hard the job is. I thought that on the D.C. Circuit we worked hard and the Supreme Court has all these law clerks and everything,” Ginsburg said. “It is the best and hardest job I have ever had. Everything is en banc. There is togetherness in everything we do. I sometimes say the real power is in the district judges. They sit all alone in the courtroom, and they are in command during the entire trial. In the Supreme Court you have to convince four others in order to have your voice heard. … Everyday that we sit and everyday that we confer we have lunch together. And then there are all kinds of extracurricular activities.”
Despite their different backgrounds and perceived different political ideals, Ginsburg soon found a friend in Justice Sandra Day O’Connor.
“Justice O’Connor gave me wonderful advice. First she gave me some information on my chief. Those two knew each other very well and it was rumored that at Stanford Law School they even dated,” Ginsburg said. “At the end of the first sitting, the homework assignment comes around. I am expecting a unanimous, single issue case, that is what I am told is the tradition for the new justice. Instead, the chief assigns me an ERISA case on which the Court divided 6-3. I went to Justice O’Connor to ask her advice, and I said ‘why is he doing this to me?’ And she said in typical Sandra fashion, ‘Ruth, you just do it. You get out your opinion before he makes his next set of assignments or you will be in jeopardy of getting another difficult case.’ That is her attitude in life, whatever comes your way, you just do it. She is one of the most courageous people I have ever known.”
Ginsburg stressed the great compromise and thought that goes into each opinion that is drafted by the Court.
“When you are on a collegial court, you do not write as if you are queen because you are writing on behalf of the Court,” she said. “First, at conference, you take notes of what each of your colleagues has said and you try to incorporate those views into your draft. If not, you will get a Dear Ruth letter. … There are times when I have circulated drafts into the high teens.”
Off the Court, Ginsburg has developed close friendships with several members of the Court, most notably Justice Antonin Scalia. The Ginsburgs and Scalias are frequently spotted having dinner and enjoying the opera together in Washington and the Justices have even appeared on stage at several operas. In addition, they travel together and have a standing double date for New Year’s Eve. On the Court, however, Ginsburg made it clear that she would strongly prefer for there to be an additional woman or two, or three, on the bench.
“Now that I am all alone on the Court, it doesn’t look right,” Ginsburg said. “I see the people being admitted to bar of the court and there are many women. And the box of reporters has many women. I look to our neighbors to the north, and they have a woman chief justice and three others out of nine. It is lonely for me. Not that I don’t love all my colleagues, I do. And even though I believe a wise old man and a wise old woman would reach the same decision, there is life experience that a woman has simply because she has grown up inside a woman’s body that the men don’t have.”
Despite her own successes in advancing the issue of women’s rights, Ginsburg said when it comes to addressing large societal and cultural trends, the branches of government work in concert, with the Court being far from out front.
“The court never leads,” Justice Ginsburg said. “Even in Brown v. Board of Education, they were hardly in the vanguard. They moved when they did because no one in the political arena was going to move, and because the U.S. government was pushing. Did you see the brief filed by the government in Brown? They said ‘we are embarrassed by the Soviet Union’ – who were pointing to apartheid in America – and ‘please, Supreme Court, help us in our international relations by ending this forced separation in school’. It was similar in U.S. v VMI – who brought the suit, not some liberal group, the United States government. There is a notion of dialogue. The Court is not out there on high declaring the final word. There is a back and forth between the legislature and the Court. Sometimes the legislature acts to reinforce what the Court has done and, like in the case of Lily Ledbetter, sometimes it acts to correct what the Court has done. The Court is in constant conversation with the other branches of government.”
Throughout the day speakers and panelists debated and discussed Ginsburg’s impact on various areas of the law. On her final note, she urged law students to find a path to make their own impact.
“I have found working in the law so tremendously satisfying,” Ginsburg said. “The key reason is not just because you can earn a decent income, but because you will have a skill that you can contribute to your community. Because you are a lawyer, you can do things to make life a little better than it might be if you were not contributing your time and talent. There is no greater satisfaction than to give something to the community.”Tags: Dylan Griffiths, Ruth Bader Ginsburg