Tribute to Ruth Bader Ginsburg
February 3, 2014 – Justice Ruth Bader Ginsburg Distinguished Lecture of Women & the Law, New York City
Justice Ginsburg deserves the Standing O, I haven’t done anything yet. Thank you Justice Ginsburg Ruth for that wonderful introduction. I think that Christmas Day story is going to follow me everyplace I go. There’s nothing I’m ever going to write on the U.S. Supreme Court that’s going to be so much quoted as that line. But, I’m still going to try. Thank you so much to the New York City Bar Association for having me. It’s really an honor to be here to talk with all of you, and especially because you’ve given me this wonderful opportunity to talk about one of the living giants of American law, Ruth Bader Ginsburg. I’m very grateful for that.
So, in my 3 and a half years on the court, serving with Justice Ginsburg I’ve learned to admire her more and more each day. As a judge, a colleague, and a friend. You know they say that life on the court can be a little cloistered. And I didn’t realize until recently, that to folks on the outside, Justice Ginsburg is much more than that.
To many of them, she is a hip-hop icon. I’m going to disappear for my first prop. The “Notorious R.B.G.”. They sell these, truly. She is the subject of an opera, a comic book, a Tumblr, and a blog, called the Ruth Bader Gins-Blog.
I’m going to disappear now for my second prop. She is a bobble head. Bobble-head because the head bobbles, as you can see. Here she is, this is pretty small, and I know you won’t be able to see it. She is standing on the grounds of Virginia Military institute. A college, as it sounds many of you know, she along with other members of the court, made co-ed. This thing here is a safe. What she’s doing here is pulling from the safe the 13 cents less per dollar that Lilly Ledbetter was paid relative to her lowest paid male colleague. So that’s Justice Ginsburg the bobble-head. There’s also some reference to copyright law in here, but I’ll spare you that one.
Did you know that BuzzFeed has a list of “19 Reasons Ruth Bader Ginsburg is your Favorite Supreme Court Justice”? I thought, 19, they’re actually all pretty funny, but I thought 19 was maybe a little too much. But I thought, I’d give you a sample. So here are 2 of them. (Displays 2 posters, the first one has written 4. She was a complete and total babe. 5. She is one smart cookie) There are 17 more reasons why Justice Ginsburg is your favorite Supreme Court Justice. You can make them up. After this is over, you can go talk with your friends and come up with your favorite 17 reasons.
Now, it really makes absolute sense that Justice Ginsburg has become an idol for younger generations, and especially for younger women. I’m just delighted to see many, many here. Her impact on America and American Law, has been extraordinary. I think one way to see that impact clearly, is by looking at the women who have served on the court. About 25 years separate the first two Sandra Day O’Connor, and Justice Ginsburg, from the next two, me and Justice Sotomayor. In those 25 years, the world changed for women. So that my, and Justice Sotomayor’s paths after law school were so much easier than those of our two predecessors.
When Justice Ginsburg started out at Harvard Law School, in 1956, she was part of only the 7th class to admit women. That 500 person class, as you’ve heard, had, did you use this number, and had 8 people? Or did you say 9. I don’t know, one of us is right. The on campus dorm were all for men, and in half the classroom buildings, so were the restrooms. That meant if you had the misfortune to take a class, or still worse if you had the misfortune to take an exam, in say, Langdell Hall, you had to make a mad dash across campus when the need struck.
The Dean at the time, Erwin Griswold, had a famous, or maybe I should call it infamous, tradition for the few women students who were there. Every year he would invite all the women in the first year class for a lovely dinner at his house. They all fit at one table, of course. Then, when dinner finished, Dean Griswold would usher everyone into the living room, where he would ask them one by one to explain what they were doing at the law school, occupying a seat that could have been held by a man.
Now, in fairness to my predecessor, who has gotten a lot of grief for this practice over the years as you can imagine, I recently heard Justice Ginsburg give the story a charitable interpretation. Apparently years later, Dean Griswold told her that he hadn’t meant the question to be skeptical, much less, unkind. He said he had asked the women about their plans, just so he would have stories to tell the doubting Thomases on the faculty. Who were dubious about the schools decision to admit women.
I don’t know, as a former Dean myself, I admire the man’s capacity to spin. But I’m not sure I believe it. Justice Ginsburg was already a rock star. She shot to the top of her class, she was selected as an editor of the Harvard Law Review, but even being the Notorious R.B.G. wasn’t quite good enough. The start of her third year, Justice Ginsburg made a request of the Dean. Her husband Marty had just graduated from Law School, and started a job in New York. Where he was diagnosed with a serious illness. So Justice Ginsburg, asked Dean Griswold if she could complete her last year of law school at Columbia, while still receiving a Harvard Law Degree. Dean Griswold refused, saying if she was going to spend her final year at Columbia, that all she could get was a Colombia degree, not one from Harvard. Somehow she survived that deprivation.
She graduated from Colombia, getting the highest possible honors from that school as well. Now, I am just going to digress a bit from my story. Numerous subsequent Harvard Law School deans, including me, offered over the years to right Dean Griswold’s wrong, and to give Justice Ginsburg the Harvard Law School degree that she should have gotten years earlier. She always refused. I kind of thought out of an admirable loyalty to Colombia. But I heard her say a couple of years ago that Marty her husband, had told her that she should hold out for the real prize, an Honorary Degree from Harvard University. Marty was a very smart man, and Justice Ginsburg indeed received that honorary degree a couple of years ago.
But back to my real story. Although Justice Ginsburg had excelled at two great law schools, she like her future colleague Sandra Day O’Connor, had a tough time finding a job. Law firms refused to hire her, one told her that it already had a token woman. When she applied for clerkships, the great judges of the era declined even to consider her. Learned Hand said he didn’t want any women in his chambers because he would be, inhibited in their presence. Felix Frankfurter said he wouldn’t break the Supreme Court’s tradition of hiring only male clerks.
But as you’ve heard, Justice Ginsburg ultimately did get a clerkship on the southern district of New York. I think because the great professor Gerald Gunther, basically threatened a judge, and made him hire her. After that, she was hired by Rutgers law school and became one of the first tenure track female law professors in the country. But even that came with a string attached. Rutgers told her she was going to be paid less than her male colleagues because, quote, “your husband has a very good job”.
Now, against this striking background of gender bias, Justice Ginsburg, as you know, succeeded marvelously. She eventually became the first woman tenured professor at Colombia law school, she founded the ACLU women’s rights project, she was appointed by President Carter by the DC Circuit court of appeals, then by President Clinton to the Supreme Court, and she did all this while raising two children.
The first, Jane, who is here with us tonight, and was born just before Justice Ginsburg started law school. Jane followed her parents into law, becoming a Colombia law professor too, and one of the countries foremost copyright scholars. The second, James, shared his mother’s love for opera, and is now the founder and President of a Grammy Award Winning record label for classical music.
I know that Justice Ginsburg would attribute her ability to have it all, at least in some significant part, to her husband Marty. As everyone who knew Marty could tell you, he was a brilliant man. Hilarious and witty, a world class tax lawyer and chef, and an all-around mensch. When I was a Dean at Harvard, at a panel I was moderating once on work-life balance, Professor Carol Steiker, one of my colleagues, was asked by a student, how she had managed to combine such a great career with such a great family life. She gave a four word answer, marry the right guy.
I think Justice Ginsburg would agree. She certainly found the perfect partner in Marty. But I don’t think even Marty could make the path easy for Justice Ginsburg, in the legal world of the 1950’s and 60’s. Every step of her way was marked by perseverance, grit and downright courage. 25 years later my experience was very different. When I graduated from law school in 1986, almost 40% of my classmates were women. Female law firm partners, and law school professors, weren’t exactly the norm, but their numbers were growing, and they weren’t thought of as tokens or curiosities. Well most all federal Judges and Justices were more than happy to hire the brightest women as their clerks.
Although I won’t say I never felt any bias, it was pretty easy for me to pick the path of my choosing. A couple of times as you heard, I happened to be the first woman, as Dean at Harvard, and then as solicitor general. Those firsts were meaningful and important. But it was essentially a fluke that it hadn’t happened already. The dominoes were more than ready to fall. So what explains this gulf between Justice Ginsburg’s experience and mine? In large part, the answer is simply, Justice Ginsburg.
As a litigator and then as a judge, she changed the face of American anti-discrimination law. More than any other person, she can take credit for making the law of this country work for women. In doing so, she made possible my own career, and later on the careers of many of today’s devotees of the notorious R.B.G.’s Tumblr, and the Ruth Bader Gins-Blog.
So I want to explore Justice Ginsburg’s contributions, by looking at 6 of her greatest hits. Three of the cases she litigated as a private attorney, and three anti-discrimination opinions she has written as a justice. Together I think they show the remarkable progress the country and the law have made, thanks to Justice Ginsburg’s efforts, even as they show that possibilities of back-tracking remain very real.
They demonstrate as well, another thing that I want to talk about today, which is Justice Ginsburg’s sheer excellence as both a lawyer and a judge. By picking these 6 cases, I don’t mean in any way to diminish Justice Ginsburg’s many other contributions to the law. As a law professor, she was a path marking scholar of civil procedure, and one of the first comparatists. Path marking, have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions. Although, it actually appears not to exist. Oh well.
Among her less well known achievements, as she told you herself, she wrote, what I’m confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg.
As a judge she has authored outstanding opinions on other subjects, federalism, statutory interpretation, and separation of powers. And her favorite subject of all, civil procedure. For the students in the room, or for the lawyers in this room, if any of you want a refresher course, on personal jurisdiction, I recommend you read Justice Ginsburg’s trio of opinions in Castro, Goodyear and Daimler. Right, right and right.
But today I want to focus on her contribution to women’s rights, because however important personal jurisdiction is, that is the work that has most changed the world. To understand this contribution, it is important to have a sense of what the constitutional law of gender equality was like, before Justice Ginsburg founded the ECLU Women’s Rights project in the early 1970’s. That’s easy enough, because it just didn’t exist. As Justice Ginsburg has memorably put it, the constitution was an empty cupboard for sex equality claims.
The one exception was the 19th amendment, which had given women the right to vote in 1920. Yet, half a century later, the law was still riddled with gender distinctions. Open, unabashed discrimination, right in the text of many state and federal laws. The Supreme Court had yet to declare a single one of those laws a violation of the equal protection clause. Now, everyone is familiar with the great and heroic struggle that lawyers like Thurgood Marshall faced when litigating race discrimination claims in the 1940’s and the 1950’s. Of course, there were difficulties that they faced absolutely unique to that effort. But even those lawyers could point to a handful of legal precedents, paying lip service to racial equality.
For the nascent women’s rights movement, there was all but nothing. What Justice Ginsburg drew on instead was the rapid change that was occurring in social attitudes about women, and their role in American life. With that ongoing change in mind, she approached the cause of Women’s equality with a remarkably strategic mind.
Justice Ginsburg’s first brief before the Supreme Court was in Reed v. Reed in 1971. She had said that this case was perfect in the law, perfect in the facts. The client was Sally Reed, who lived in Idaho with her son, separately from the son’s father. Reed’s son tragically committed suicide. She filed a petition to administer his estate, which consisted of just a few items of personal property. The father then filed a competing petition to administer the estate. Idaho intestacy law at the time provided that, and I’m quoting here again, “males must be preferred to females”. So that was that, as far as the lower courts were concerned. The father’s petition was granted over the mothers.
Justice Ginsburg saw the case as potential. The Idaho law was a relic from the 19th century, dating back to the days when women couldn’t hold property apart from their husbands. Sally Reed had suffered a terrible injury, and the discrimination was unmistakable. When Reeds case made it to the Supreme Court, Justice Ginsburg took on the briefing. Even at a remove of 40 years, the brief Justice Ginsburg wrote, strikes the reader as stunningly ambitious. It made the case for subjecting all classifications based on sex, to the highest level of judicial review called strict scrutiny. At a time when not a single such classification had been invalidated by the Supreme Court.
The brief gained to become more than a legal document. It tried to educate the court about social changes regarding the treatment and status of women. Our mission, Justice Ginsburg later said, was to educate and to spark Judges and Law Makers understanding that their own daughters and granddaughters could be disadvantaged by the way things were.
In line with that goal, the brief began with a simple proposition. In very recent years, it said, a new appreciation of women’s place has been generated in the United States. It marshalled an array of social science research to show that women were just as qualified as men to administer estates, just as the great Louis Brandeis had once used facts in the world to litigate for progressive causes at the turn of the 20th century.
Some of the evidence Justice Ginsburg put before the court actually had to do with women’s aptitude for managing homes. A sly attempt to appeal to the more conservative members of the court. The brief was littered with citations to literature, history, biography, and more. All tending to show both the appalling treatment of women over the years, and the intrinsic injustice of sex-based discrimination. The brief even cited favorable decisions of the West German Federal Constitutional Court. Not Sweden. It cited those decisions before it came forbidden to consider such things. Because as Justice Ginsburg would later say, if our Supreme Court noticed what the West German constitutional court was doing, the Justices might ponder how far behind we might be?
The court ruled unanimously in Sally Reed’s favor. Its opinion was terse. In a few short paragraphs it struck down the law as an irrational gender-based decision. The first such ruling ever. Just as Justice Ginsburg’s briefing had argued, often and nearly the same words, the court held that the Idaho law was the very kind of arbitrary legislative choice forbidden by the equal protection clause. However much Idaho wanted an easy way of selecting who could administer estates, the court said the choice in this context, may not lawfully be mandated solely on the basis of sex.
The court did not go as far as to subject gender classifications to heighten scrutiny, as Justice Ginsburg had asked. But its broad language planted the seeds.
Water is a long ways away, I feel like you have to do a Marco Rubio Maneuver.
Justice Ginsburg’s first oral argument came a year later, in Frontiero vs. Richardson. Her client in that case was Sharon Frontiero, a lieutenant in the air force. Frontiero’s husband was a full time student at a small college in Alabama. Under federal law at the time, a married male service member always qualified for a housing allowance, but a married female service member qualified only if she provided 3/4ths of the family income. The theory, to the extent that there was one, appeared to be that most women in the military were supported by their husbands, and not the other way around. So the women usually didn’t need a government subsidy.
Frontiero fell just shy of the laws cut off, so she didn’t get a housing allowance. In selecting this case, Justice Ginsburg moved the ball forward ever so gradually. Unlike Reed, this was not a challenge to an antiquated, outlier state statute, but to a federal law in everyday use. It was also a case that cut to the heart of sex stereotypes. The facts involved an inversion of traditional gender roles, with the woman as breadwinner, and the husband as dependent.
The court was forced to decide whether a law that relied on increasingly outdated notions about gender, could be defended on that basis. Ginsburg the oral advocate was as compelling as Ginsburg the brief writer. She identified the stakes in stark terms. This was a law, she told the court from the podium, that helps keep woman in her place. A place inferior to that occupied by man in our society. She made a forceful push again, for subjecting gender based classifications with strict scrutiny. And she skewered arguments that women did not need judicial protection because of their numerical superiority. Surely, she said, no one would suggest that race is not a subject criterion in the District of Colombia, because the black population here outnumbers the white.
To those of us who have to occasionally lean in to hear Justice Ginsburg’s questions from the bench, this oral argument is a reminder that Justice Ginsburg has forcefulness to spare when she wants it. The argument went well enough that afterwards, former Dean Griswold, who was by then the solicitor general of the United States, came over to congratulate her. It was as if to say, Justice Ginsburg later recounted, you’re okay. Now I’m claiming you. The court ruled 8-1 in Frontiero’s favor.
Justice Ginsburg won most of her cases. The lead opinion of 4 justices, reads like a Ginsburg brief, and was clearly inspired by it. It bemoaned the paternalistic attitude that had once been firmly rooted in our national consciousness. Through citations to literature, history and sociology, it recounted the mistreatment of women. Through statistics and common sense, it showed how misguided any defense of this discriminatory law was. Four justices would have adopted Justice Ginsburg’s invitation to subject sex classification to strict scrutiny. The fifth indicated his willingness to do so in an appropriate case.
Justice Ginsburg finally achieved something close to that result three years later, in Craig v. Boren. The law at issue there was a historical artifact of curiosity she called it. In the mold of reed, but even more so. Oklahoma defined the age of majority for certain alcohol purchases, as 21 for men, but 18 for women. Curtis Craig was a man under 21, he wanted beer, and he sued to get it. Justice Ginsburg filed a brief on his behalf.
It has long been remarked that part of the genius of Ginsburg as litigator, was her careful client selection. Craig was one of several men she represented. She has explained that this helped show that gender lines were harmful, not just to women, but also to men and children. This tactic occasionally picked up an extra vote from an otherwise hesitant judge.
It also served a deeper function. Laws that afforded women special treatment were often viewed as favors to them. Illustrating this view, Justice Stewart once remarked that he thought it might be better for Women in the Equal Rights Amendment, were never ratified. That way, he said, women’s rights groups would be free to challenge only those laws that gave them worse treatment, while keeping the ones that benefitted them.
Justice Ginsburg’s brief in Craig confronted this notion head on, and demolished it. On the surface, she said, the law may appear to accord young women a liberty withheld from young men. But upon deeper inspection, the gender line drawn by Oklahoma is revealed as a manifestation of traditional attitudes, about the expected behavior of males and females. Part of the myriad signals and messages that daily underscore the notion of men as societies active members, and as women as men’s quiescent companions. She punctuated this with a citation to Simone de Beauvoir Second Sex, how many of the justices do you think have read that.
The brief is also notable for a more subtle legal reason. Although Justice Ginsburg’s previous briefs had argued full throatily for treating gender like race as a class subject to strict scrutiny, this brief was more restrained. Recognizing that the court had only been willing to meet her halfway, Justice Ginsburg now argued for a moderately heightened level of scrutiny for such laws. Writing that they should be invalidated if they were based on overbroad generalizations about the sexes. That argument did the trick. The majority struck down the law, adopting a standard for gender-based classifications, known as intermediate scrutiny. Justifying such laws on the basis of administrative convenience, or archaic and overbroad generalizations, or traditional notions of women’s roles, would no longer be possible.
Soon after her triumphs in those cases, Justice Ginsburg was appointed to the DC circuit by President Carter. Now, I must admit I carry a minor grudge about Justice Ginsburg’s tenure there. When I was a law student, I had the good fortune to be offered a clerkship by several of Justice Ginsburg’s colleagues. Abner Mikva, who I eventually clerked for, Henry Edwards and Pat Wald. The only one of President Carter’s nominees to the DC Circuit, who thought me not quite good enough was Judge Ginsburg. Okay, let’s be frank, she didn’t even interview me, still, she overcame that loss too.
After over a decade of distinguished service on the DC Circuit, she was nominated to the Supreme Court by President Clinton, and confirmed by the Senate, 96 to 3. The kind of vote that you’d think these days was a misprint. In her years on the court, she had issued as I’ve said, countless great opinions. But I want to focus on three. Two of them, unfortunately, dissents, that have brought into sharper focus her transformational contributions to Women’s equality.
Justice Ginsburg wrote the courts proudest women’s rights opinion in 1996, in the United States v. Virginia. The bobble-head case. The case arose out of an effort to admit women to the Virginia Military Institute. An incomparable military college, as Justice Ginsburg put it. For over 150 years, the school had been restricted to men. But in response to litigation, Virginia agreed to open a satellite school for Women, known as the Virginia Women’s Institute for Leadership. This institute for leadership was nothing like the real deal. It employed less qualified faculty, offered fewer degrees, and did not give its students any opportunity to participate in the military training programs, that made VMI great.
The court had seen a case like this before. In 1950, the University of Texas Law School had argued that it could exclude African Americans, from its flagship campus, and place them in an Unaccredited Law School, just for blacks. The court deemed that arrangement a violation of Equal Protection, understanding that the new school, unlike the flagship campus, had none of those qualities, and I’m quoting here, which are incapable of objective measurement, but which make for greatness in a Law School. Yet, in 1996, Virginia was arguing that it could do the same thing to women.
Justice Ginsburg speaking for 6 Justices wrote the opinion deeming this arrangement unconstitutional. The opinion perfects many of the themes Justice Ginsburg had persuaded the court to weave into the law. Classifications based on sex could be withheld, only if they had an exceedingly persuasive justification. Gender distinctions justified by broad generalizations about women, or by supposed inherent differences, or extensively benign efforts to help women, could not stand. Applying these principles, Justice Ginsburg rejected Virginia’s rationalizations, that its system of single-sex schools was intended to provide a diversity of educational opportunities, or to maintain the rigorous physical regimen at VMI.
Drawing on a wealth of historical and sociological knowledge, she compared those explanations to reasons that bar associations once gave to exclude women from the practice of law. Or police departments once offered to exclude women from their ranks. She refused to accept any explanation based on what most women would prefer. Most men would also prefer to not be subjected to the physical rigors of VMI. A point she said, on which, even our descending colleague, Justice Scalia, might agree.
The opinion is an exemplary piece of judicial craft. With her characteristic attention to detail, Justice Ginsburg meticulously explored the many facets of VMI and its sister school, in order to illustrate the profound differences between them. In articulating the standard governing gender equality claims, she synthesized a generations worth of precedent, and then in the manner of great common law judge, re cast all those prior cases into the rule that there must be an exceedingly persuasive justification for any gender based distinctions.
Justice Ginsburg faced a vigorous decent by Justice Scalia. An experience as all my colleagues can attest, can be like facing down a locomotive. Justice Ginsburg says that the decent, written in Justice Scalia’s characteristically powerful and riveting style, ruined her weekend. But she also says, it made her opinion better. And reading it, one is struck by how elegantly and effectively she responds to the many objections that Justice Scalia raises, maintaining the flow and structure of her opinion without ever getting bogged down and squabbling.
It’s been 18 years since the VMI case. Some kinds of victories are now hard to come by. The law of gender equality, mind you, hasn’t changed much in the interim. Reed, Frontiero, Craig, and VMI, are still the constitutional touchstones. And Title VII of the civil rights act, still bars employers from discriminating on the basis of gender. But the court has somehow found reason to cut back on certain Anti-discrimination protections. So I want to conclude my tour of Justice Ginsburg’s greatest hits, with two of her dissents.
They show how she has remained dead right on the law and on reality of gender discrimination, even when the court has turned in the opposite direction. At least one of them demonstrates her ability to speak to people beyond the court, in order to rectify the courts errors. Justice Ginsburg’s dissent in Ledbetter v. Goodyear, another bobble-head case, has become iconic. So that the facts of that case are now well known, even to non-lawyers.
Lilly Ledbetter was a supervisor at a Goodyear plant in Alabama for almost 20 years. During that time she came to be paid less and less than male co-workers doing the same work. Finally, after the pay differential between Ledbetter and her male co-workers opened up to nearly 40%, she sued. A jury found in Ledbetter’s favor, and a judge ordered Goodyear to make up the difference in wages. But on appeal, a court of appeals threw out the judgement, and the Supreme Court affirmed.
The legal issue may seem dry at first glance. Title VII of the Civil Rights Act, allows individuals to sue for acts of discrimination, only when they are less than 6 months old. In the view of 5 justices, Ledbetter was complaining about acts of discrimination that were many years old. Denied raises, lost promotions, and the like. True, the court admitted that Ledbetter’s paycheck week in and week out was lower than those of her male colleagues. But the court ruled that those skimpy paychecks were mere effects of past discrimination, and Ledbetter could not use them to satisfy the statute of limitations.
Justice Ginsburg’s dissent is remarkable for many things. First and foremost of course, it is utterly correct. Pay discrimination occurs repeatedly over time. The court long ago held that plaintiffs can challenge a pattern of discrimination each time a new discriminatory act occurs. So here, Ledbetter was within her rights to challenge Goodyear’s wage discrimination, each time it sent her a paycheck that treated her differently because of her sex.
In her years as a lawyer, Justice Ginsburg often finds herself in the position of arguing that judges should change the law to protect women from unequal treatment. Well in this case, she didn’t need to urge that kind of change. Congress and the Supreme Court had already created a world of legal rules, much like the ones Justice Ginsburg had originally envisioned.
So with Ledbetter, Justice Ginsburg was asking merely for a faithful application, of the courts and congresses prior decisions. It was the majority that was changing the rules, by retreating from the decisions that the court and congress had already made. In explaining the majority’s errors, Justice Ginsburg’s dissent, characteristically cuts through the clutter. With limped pros, perfect diction, it gives life and immediacy to a seemingly Archaean legal issue. Every page bristles with understanding of the realities of gender discrimination in the workplace.
Pay disparities, Justice Ginsburg wrote, often occur as they did in Ledbetter’s case, in small increments. Small initial discrepancies, she stated, may not be seen as meat for a federal case, particularly when the employee trying to succeed in a non-traditional environment, is averse to making waves. But Justice Ginsburg continued, and employees initial readiness to give her employer the benefit of the doubt, should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex. I suspect that when Justice Ginsburg wrote those words, she remembered her own experience of pay discrimination, as a young professor at Rutgers, and her battle on behalf of plaintiffs like Lieutenant Frontiero.
Perhaps most famously, Justice Ginsburg’s dissent ends with a clarion call for legislative action. She told me several years ago, in a public conversation I had with her at Harvard Law School, that this dissent was directed squarely at congress. The dissent, she told me, was saying you could not have meant what this court said you meant, so fix it. And that is what congress did. Justice Ginsburg’s opinion was possibly the most effective dissent of this generation. It instantly turned Ledbetter into a national figure, and thrust equal pay into the forefront of public debate.
Less than 2 years later, in 2009, congress enacted, and President Obama signed as one of his first pieces of business, the Lilly Ledbetter Fair Pay Act. That law adopted precisely the theory put forward in Justice Ginsburg’s dissent. Now the statute of limitations for challenging pay discrimination, restarts with each new discriminatory paycheck, as it always should have.
Finally, I want to conclude my tour of Justice Ginsburg’s opinions, with another dissent. It is more recent, from only last term, and it is a dissent I joined. The case was Vance v. Ball State University, and the issue is not terribly hard to grasp. Under anti-discrimination law, an employer is responsible for workplace harassment, perpetrated by a supervisor. But it was not completely settled who qualified as a supervisor.
It could be, anyone who exercised substantial control over employees. The other option, was that it was only someone that could formally fire, demote or transfer an employee. The plaintiff in the case was an African American woman, Maetta Vance, who worked as a catering assistant, and who alleged that a catering specialist, who oversaw her work, but did not have formal power to fire her, had harassed her on the basis of her race. The court dismissed Vance’s suit that may have been the right result. It was possible that the person that Vance said was harassing her, wasn’t her supervisor under any definition.
The real problem was the court’s reasoning. The majority said that only individuals with hiring, firing, or similar power, could qualify as supervisors. It thought that is the simplest rule, and so the best one. Justice Ginsburg wrote a dissent, joined by three other justices. In my humble opinion, it had the majority dead to rights. Supervisors who can threaten employees with inferior or demeaning work assignments are fully as capable of intimidating, harassing and abusing them, as supervisors with formal power, to demote or transfer.
Just as in Ledbetter, this conclusion followed readily from our prior cases, holding employers liable for the acts of supervisors. Just as in Ledbetter, knowledge of the realities of workplace discrimination, showed how blinkered the majorities contrary rule was. When I first picked up the briefs in the case, I thought about how professors can harass their secretaries, even though they have no formal power to fire them.
In a brazen part of the opinion, Justice Ginsburg illustrated through a series of litigated cases, just how often that kind of harassment can occur. So, how much workplace discrimination the majorities rule would allow. But in this dissent to what is perhaps the most notable is its closing. As in Ledbetter, Justice Ginsburg ends by calling on congress to intervene. To correct the courts wayward interpretation of Title XII, citing a long litany of cases in which the court adopted parsimonious interpretations of Title XII, that congress later had to reject and correct.
The passage seems a bit wearied, as if to say, haven’t we been through all of this before. But it also has the sound of a boxer jumping back into the ring for another round. Others who fought so long and hard, might have grown frustrated with disappointments, a fight for equality entails. But as anybody who knows her can tell you, as the trainer whom we share as Justice Ginsburg told you often tells me, Justice Ginsburg is indefatigable.
It’s been said of Thurgood Marshall, that he would have been a giant of American Law, even if he had never been a Supreme Court justice. As Justice Ginsburg’s greatest hits make clear, the same is true of her. Although she has brilliantly extended those contributions as a judge. More than any other single individual, Ruth Bader Ginsburg is responsible for eliminating sex discrimination from American Law.
How has she done it? One of the constants of Justice Ginsburg’s style, extending from the Reed brief in 1971, to the Vance dissent in 2013, has been a keen attention to the realities of gender discrimination. Partly, no doubt, this comes from personal experience, the slights at Harvard, the doors that shut on her when she graduated, the pay discrimination at Rutgers. It must also come from many years listening to and fighting for other women who suffered from even greater discrimination.
As a litigator, she used this knowledge to rebut every outdated rationalization thrown up to defend gender discrimination. And she relied on it to give the court a full understanding of the injustices she was seeking to correct. As a justice too, she constantly returns to the realities of discrimination, to show how to correctly apply anti-discrimination principles.
Another equally important feature of Justice Ginsburg’s approach, has been her sensitivity to the role of courts in our democracy. Now that may seem paradoxical for a person who led a law reform movement. But it was, and is, a crucial part of her thinking. At our Harvard conversation, she told me, and I’m quoting her words, that courts are reactive institutions. They are not out in the vanguard of any social movement. While they can put their imprimatur on the side of change, she said, they cannot lead it.
Her work as a litigator and as a justice has reflected her understanding of this delicate balance. As a lawyer, she urged, and sometimes shamed the court to catch up to the events occurring outside its doors. But she also recognized that change could not come all at once. She chose her clients, her cases, and her targets, with exquisite care, to avoid pushing the court too far, too fast.
In much the same way, as a justice, she is often been a temperamental conservative, who prefers the gradual common law approach, to the sweeping rule or unnecessary withholding. She has been critical of certain cases, most notably Roe v. Wade, for having ruled too expansively and too quickly. But she also recognizes that when the time is right, courts can play an important role in ratifying society’s progress, and that a well-placed dissent, can become an important spur to justice.
And there is a third piece of the Ginsburg style. One that has become especially impressive to me since I joined the court. That is simple mastery of legal craft. That appears in the appellate briefs that she wrote as a lawyer, which are models of precision, clarity, and power. And so too, her opinions reflect this great apparently inborn gift. Each opinion in crystalline, exact, and elegant. Every word is carefully chosen and perfectly abt, every sentence well considered, every argument organized, coherent and to the point.
You’re never afraid that a stray word or thought will cause some unforeseen bad consequence down the road. Of all the justices, Justice Ginsburg drafts her opinions the most quickly. Yet when I read them, I’m always struck by how ever free and polished they are. We have a practice of inviting others to comment on our opinions and ask for changes, I almost never have anything to say about Justice Ginsburg’s. They are ready to be published the moment they are circulated. She is the archetypal judge’s judge, and every time I read one of her opinions, I feel as though I learn how to do my job a little better.
Justice Ginsburg has also taught me something a little bit more personal. Being a member of an institution like the Supreme Court isn’t always easy. We disagree about a lot of things of great import, matters on which we all feel deeply. It’s a crucial part of the job, not to take those disagreements personally. Partly that’s because there’s always another case. If we are to remain open to persuasion, and also able to persuade others, we need to stay on good terms.
But partly, it’s because the court is an important institution. An institution that the country needs to work. And it’s just not going to function well if its members aren’t able to cooperate. No one performs that difficult role better than Justice Ginsburg. She is second to no one in her convictions of what the law requires and what justice demands, but she’s also a model of respect, and collegiality with every member of the court. She manages to be universally admired and beloved, by me, by Justice Scalia, by everyone in between, without sacrificing an iota of her principles or convictions.
She told me once that her secret comes in part from something her mother-in-law told her, back when she and Marty were young. What’s the secret to a successful marriage, she asked. Sometimes, her mother-in-law said, it pays to be a little deaf. Sometimes it pays to be a little deaf around the court too, and Justice Ginsburg knows when to do just that. I’ve seen Justice Ginsburg maintain those values of collegiality, even when it’s toughest.
Our tradition at the court, and it’s usually a lovely, lovely tradition, is to have lunch together after the conferences in which we discuss and vote on cases. The rule at those lunches is no more court talk. Just friendly conversations about sports, movies and music. Things like that. Now without giving you any specifics, I once left a difficult conference, maybe the most difficult since I joined the court. I found it almost impossible to imagine going to lunch with my colleagues. We’d just had a very serious disagreement about a very tough issue, and I wasn’t so inclined to immediately switch that off and chat about the movies. I told Justice Ginsburg that I didn’t think I would go. She was understanding but quite firm. You have to go, she said. You have to act as though nothing has just happened. Her temperament, her maturity and judgement, her calmness and wisdom helped make the court the institution it is. And of course, when the Notorious R.B.G. tells you to go to lunch, you go. And so I went.
One last story, this one coming from one of my clerks. A few months ago, the court held a seminar of sorts, on women in the law for the women in the law clerks. The speakers discussed balancing work and family, as well as dealing with gender discrimination in the workplace. Issues that are still present but almost unimaginably different than in Justice Ginsburg’s law school days where the very idea of a women Supreme Court clerk was fanciful.
Towards the end of the event, Justice Ginsburg surprised everyone, by walking into the room to answer questions. As soon as she entered, one of my law clerks told me, all of these young women stood up and applauded. It was like seeing a legend walk in the door my law clerk said.
I know that I’m her colleague, and not one of her army of 20-something groupies. But every day I feel much the same way. When I see Justice Ginsburg walk down the halls, I think I am seeing a hero. She is done as much as anyone in the last 40 years, to make America a more equal and just society. It is a tremendous honor to sit on the same bench as her, knowing how much she has contributed to my life, and much more importantly, to the lives of millions of women around the world. Thank you Justice Ginsburg.