Jane Eisner Interviews Ruth Bader Ginsburg: Transcript
Writer-at-Large Jane Eisner February 5, 2018
On February 1, 2018, Jane Eisner, editor-in-chief of the Forward, interviewed Ruth Bader Ginsburg. Ginsburg, a legal and cultural icon, is the longest serving Jewish Supreme Court justice, as well as the second woman to ever serve as a justice. She spoke with Eisner for nearly an hour-and-a-half at Adas Israel in Washington, D.C.
Lauren Holtzblatt: Good evening. Welcome to Adas! My name is Rabbi Lauren Holtzblatt, this is Rabbi Allan … what’s your name? This is Rabbi Aaron Alexander. And we’re just absolutely thrilled to have you here tonight.
Aaron Alexander: At Adas Israel, we primarily measure our increasing growth not by how many people walk through the doors, but by the capacity and openness of our hearts. Our hearts – this community’s heart – has four chambers. Four core practices that obligate us. We are Chesed – loving-kindness in which we take care of each other at every and any stage of life. We are Tzedek – Justice – in which we are obligated to redefine the very we of who is in this world. These walls, they may protect us, but mostly they are meant to come down so that there can be all of us. We are tefilah – prayer – we pray like our life depends on it and we live and work fiercely as if our prayers don’t matter. Lastly we are really mood – we are sacred texts. We never stop plumbing their depths for the ancient wisdom that continues to animate all of it.
So, you came here tonight for, I will say, Justice Ginsburg is a hero. She is an absolute hero. I could not think – we could not think – of someone to be with us at this particular time that we’re experiencing in our country. It’s a dark moment, and she represents everything that we want to be fighting for. For those that are marginalized, for a woman’s voice in the public sphere, in the justice system, for equity, for equality, for everything that we hold dear. And so, for the second time – it’s an embarrassment of riches – we welcome her tonight to this Bima. And we relinquish it out of total love and out of deep, deep respect for who she is and what she brings into the world.
I’d like to introduce Kathleen Peratis, who sits on the board of the Forward, who herself is a remarkable human being, an incredible lawyer who has been fighting for equality and women’s rights for over 30 years. Welcome.
Kathleen Peratis: Thank you. I would like to say a word about the Forward and 120 years of fearless, progressive, workplace-fairness-advocating journalism. The Forward is a mainstay of the progressive Jewish community and we’re here to celebrate that. I want to give a shout-out to Rachel Fishman Feddersen. Rachel is the publisher of the Forward. Jane Eisner is the editor, you’re going to see her in a minute. The head of the Yiddish Forward is a woman. This is a woman-led organization. And if you’ve ever heard an argument in the United States Supreme Court you know that too is a woman-led organization. I’d like Ruth Ginsberg and Jane Eisner to come out before I actually say a few words about them.
I could say an awful lot about Ruth Bader Ginsburg. And I had a lot of alternative plans. But yesterday, there was a prayer for Ruth published in Lilith. It was written by Abby Pogrebin, it’s very short, and I’d like to read it.
At a time as disquieting as this,
When so many of us feel deflated, shaken, worried for the future,
When we almost can’t remember what it’s like to go a day without name-calling, without lies, harshness, or callousness.
When we’re nostalgic for those halcyon years of complete sentences, dignified statesmanship, acts of empathy,
We still look to you, Ruth Bader Ginsburg—yeshiva-girl-turned-legendary-justice, RBG icon, fighter for the powerless and wronged.
May you go from strength to strength because you have been ours.
May you live many more years because you make the world brighter, fairer, kinder… Because we need you.
You have helped us remain clear—not just on the foundational principles of a nation, but on our Jewish mandate: to welcome the stranger and never to stand idly by.
The Hebrew words on your office wall in calligraphy read, “Zedek, Zedek, tirdof: Justice, Justice shalt thou pursue.” You have. And we’ll keep trying.
God bless Ruth Bader Ginsburg.
And welcome, Jane Eisner, the intrepid editor of the Forward. My friend, my icon, and I’m happy to welcome both of you.
Jane Eisner: Thank you all. Thank you to everyone coming here to Adas Israel. To those of you who are watching this at forward.com and on Facebook, we welcome you.
It is such a thrill and a pleasure for me and on behalf of all of my colleagues to participate in such an important event. In the last few weeks, we’ve asked Forward readers to send us their questions for Justice Ginsburg. And the response has been overwhelming. We heard from readers all across the country and from overseas as well. Tonight I will quote from some of these questions in our conversation because they are brilliant and funny and they’re a powerful reflection of how interested Americans truly are in the United States Supreme Court, and especially in this United States Supreme Court justice.
I do want to say at the outset that Justice Ginsburg has asked that we not discuss issues that are before the court or may be before the court.
And of course we’re respecting that. Happily there are so many other topics to talk about. Justice Ginsburg, many readers of ours are interested in your Jewish life and identity and how it shaped your judicial career and your outlook. And as we sit in this beautiful sanctuary this seems like a very good place to start. You grew up in Brooklyn from a family … OK, let’s hear it for Brooklyn.
A family that was not devout, but very identified. You have described your mother, your beloved mother, lighting candles on Friday nights.
And I’ve heard how you’ve enjoyed celebrating Passover with your family. You’ve remarked that the four questions was the best part of the Seder. I’m wondering why.
Ruth Bader Ginsburg: A child — the youngest child — is asking about this evening, this celebration: “Why is Passover night different from all other nights?” It’s a child asking a question and the rest of the Seder is devoted to answering it. The Child’s question.
I think it’s just one of many illustrations of how Jews honor learning and want children to be well-educated.
Jane Eisner: A couple of years ago with Rabbi Holtzblatt you wrote about the heroic and visionary women in the Passover story, and I’m just wondering, did you notice all that when you were a girl? Or is that the kind of thing that emerged later in life for you, this recognition of the role of women in this story?
Ruth Bader Ginsburg: Well, Lauren was the prime mover in this venture. I think growing up I might have known about Miriam and Moses’ mother but I didn’t know about the midwives Shifra and Puah and I knew about the Pharaoh’s daughter. But the Passover Seder, the Haggadah, there were no women.
Jane Eisner: That’s true. And so you’ve worked to make a difference in that regard. And I understand that was something that you were aware of as a girl as well. Your limitations. The boys were having bar mitzvahs and girls could not. And your mother had a very strict Orthodox upbringing. And I’m just wondering how that experience of being a girl at a time when girls and women had very little or no role in religious life … how did that affect you? Did it inspire you or was it something that you wanted to change?
Ruth Bader Ginsburg: Of course. Of course I wanted to change it, I wanted to have a big party for a bat mitzvah and get all those presents!
I grew up with a cousin. we lived in the same household. Two sisters married, two brothers who were three months apart. We were like twins and he was bar mitzvah’d. And had this great party. And all the gifts. I was very jealous.
Jane Eisner: I’ve read that you traced the Jewish presence on the Supreme Court beginning not with Justice Louis Brandeis, the first justice, but actually with Judah Benjamin, who was the first Jew to be offered a seat in the United States Supreme Court — but who declined. And, in fact, he became a leader of the Confederacy. I’m wondering, why do you start there in thinking about the Jewish presence on the court?
Ruth Bader Ginsburg: I don’t think of Benjamin as present on the court. Jews come in all sizes and shapes and some are very good and some are not so good. Benjamin was a very interesting character — he did have an Orthodox Jewish upbringing. But he married out of the faith.
His story is intriguing. He rose to the top of the ranks in the Confederacy. In fact, the reason he turned down the Supreme Court appointment was he had just been chosen by the Louisiana legislature to be to Louisiana’s Senator. These were days before the 17th Amendment. So Senators were chosen by the state legislature, not by direct vote.
And he thought, all things considered, being a senator was a better job for him. He might have envisioned that if he’d been on the court it wouldn’t be too many years before he had to resign.
Jane Eisner: So we have a question —
Ruth Bader Ginsburg: Oh, I just wanted to say something more about him: Although he was the leader of the Confederacy, he was a slaveholder, he was subject to virulent anti-Semitism by others high in the ranks of the Confederacy. They referred to him as Judas Iscariot.
Jane Eisner: It’s true, and I know recently we ran a story about Confederate monuments because there was so much controversy about them. And there was actually no monument to him even though he was a leader of the Confederacy. And it may be just because of what you said — of the way he was treated among the other Confederate leaders.
Ruth Bader Ginsburg: They do have some considerable exhibition about Benjamin in the museum in New Orleans.
Jane Eisner: And have you seen it?
Ruth Bader Ginsburg: Yes.
Jane Eisner: Wow. We have a question from Michael Rosenzweig, a reader in Georgia. He wondered how your Jewishness has affected your life’s work as a lawyer, a law professor, a feminist, and a Supreme Court justice.
Ruth Bader Ginsburg: Perhaps I should start by saying, I grew up in the shadow of World War II. And we came to know more and more what was happening to the Jews in Europe. The sense of being an outsider — of being one of the people who had suffered oppression for no … no sensible reason … it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.
I would say that, and love of learning. The sense of being a member of a minority group that somehow has survived generations and generations of hatred and plundering.
But the idea that — think of my own family. My father came from Russia when he was 13. He never went to school in any country. He went to a [inaudible] in his shtetl outside Odessa. But — and my mother was the first person in her large family born in the USA. She was born four months after her mother arrived here so she was conceived in the Old World, born in the New World. And both of them, more than anything else, wanted me to have a good education. That was number one on their list of what I should have.
Jane Eisner: You mentioned growing up in the shadow of World War II and the Holocaust. And I’m wondering if that shaped your views of human rights and human rights law.
Ruth Bader Ginsburg: It’s certainly a large part of it. I think you probably know that the Holocaust was the beginning of the end of apartheid in America. We were fighting a war against odious racism and our own troops, in that war, until the very end, were rigidly separated by race. So when we were fighting a war against racism, how long could segregation in our own country persist?
So I consider World War II one of the major propelling forces to the Brown v. Board of Education decision.
Jane Eisner: So you see a connection between that and then what especially many of those African-American soldiers faced coming back to the States, after they had fought and then came back as essentially second class citizens. That’s so interesting.
And you feel secure now as a Jew I sense. The beautiful poem that we heard referenced the artwork that’s on the walls of your chamber. And there’s a mezuzah on the door. I’m just wondering, in your time on the court, how has it accommodated Jewish tradition? Has that changed while you’ve been there?
Ruth Bader Ginsburg: There hadn’t been a Jewish justice for some years, from Abe Fortas until my appointment. The clerk of the Supreme Court, Clerk Souter, came to see me very early on in my tenure. And he said, I’m very glad you’re here because you can help me with a problem. The Supreme Court admits lawyers to membership in the Supreme Court bar. And every year they would get, oh, a half a dozen or more complaints from Orthodox Jews who said, “we’re so proud of our membership in the Supreme Court bar. But we can’t frame our certificate included in the wall because it said in the year of our lord so-and-so and he’s not our lord.” So, I spoke to the chief about this he said we’ll take it up at conference.
And one of my colleagues, and I will not disclose who, said, “in the year of our Lord was good enough for Brandeis, it was good enough for Cardozo, it was good enough for Frankfurter, it was good enough even for Goldberg.” And before he got to Fortas, I said “it’s not good enough for Ginsburg.”
It took a while for the cycle to complete. First, they said, all right, for the Orthodox Jews we’ll have just in the year so-and-so. And then there were some complaints — “we liked what it said on the certificate about the independence of the United States so please keep that on our certificate.” Now if you want a certificate showing your membership in the Supreme Court bar you have your choice. You can have just the year 2018. And the year of Our Lord so, or the independence of the United States. It’s the way it should be. It’s your choice, what you want it to be.
The next was the great Yom Kippur controversy. Usually the high holy days come out before the court starts up but sometimes they overlap. So Justice [Stephen] Breyer and I — Justice [Elena] Kagan was not on the court — asked the chief if the court could defer the sitting day. And the first response was, “we confer on Good Friday and nobody complains about that.” I said, “I’d be happy to come Thursday that week.” Then I think the argument that was utterly convincing for the chief was that inevitably in an argument session there will be Jewish lawyers and you want to put them — this is their day at the Supreme Court. Do you want to take away from them the opportunity to present their case and require them to have a substitute?
And that resonated and so now we don’t sit on High Holy Days.
Jane Eisner: Wow. So one of our readers, Jesse Lempell of Cambridge Massachusetts, had a really interesting question. He noted that you once described an opinion by Israeli justice Aharon Barak that forbid torture even in what they called the ticking time bomb situations — and you said that you thought that opinion had tremendous persuasive value. So I’m wondering as an American Jewish jurist, do you feel any special affinity with the work of the Israeli Supreme Court?
Ruth Bader Ginsburg: I feel special affinity to the work of Aharon Barak. He’s one of the most brilliant jurists of our time. As you know Israel doesn’t have a constitution. But they have five basic laws. And they — the Israeli Supreme Court has a wealth of law to draw on. They have Ottoman Empire law, they have the heritage from the United Kingdom, they have Jewish law. The case that you mentioned — the so-called ticking bomb case — presented to the Israeli Supreme Court this question: the police have apprehended a suspect they believe to know when and where a bomb is going off.
Can we use extreme means — a euphemism for torture — to extract that information? And in a very eloquent judgment written by then-president of the Israeli Supreme Court Barak, the answer was clear. Torture, never. And the opinion explained that there is no greater gift we can give to our enemy than to become so overwhelmed by our concern for security that more and more we come to resemble our enemy in this respect. For human rights.
Jane Eisner: I wonder if we can turn to your personal history for a moment. Your sister, your only sibling, died when she was six and you were less than two years old. Your beloved mother was stricken with cancer during your first year in high school and just sadly died two days before your graduation. I’m just wondering how this affected your sense of wanting to support women and girls. And in particular I understand how much of an inspiration your mother was. I was wondering if you want to tell us a little bit about that.
Ruth Bader Ginsburg: My mother was a hugely intelligent woman. She emphasized two things. One was that I should be a lady. And by that she didn’t mean fancy dress. What she meant is, be in control of your emotions and don’t give way to anger, to remorse, to envy, those emotions just sap strength. And enable you to move forward. And her other message was, be independent.
I suppose she hoped that someday I would meet and marry Prince Charming. Nevertheless, she emphasized the importance of being able to fend for myself.
Jane Eisner: Well and you did marry your Prince Charming right. Marty Ginsburg, your long, long time partner. But early on in your marriage there was more adversity. He was stricken very sick with cancer. You yourself have battled it twice. And as one of our readers asked, I’m wondering how do you keep going under such challenging circumstances? Where do you draw your strength?
Ruth Bader Ginsburg: I think the hardest time was when Marty had testicular cancer. There was no chemotherapy, there was massive surgery and deadly radiation. But we always — we got through each day. And we’re thankful that we had and we never thought that he would live as he did.
I was similarly inspired when I had pancreatic cancer by Marilyn Horne who is a great mezzo.
And when she was diagnosed with pancreatic cancer, that was her attitude: I will live. And she is still very much alive.
Jane Eisner: Wow, that is amazing. I’d like to turn now to your long and admirable championing of gender equality. I know that you have discussed those early cases in the public before but I wonder if you might share with our audience tonight just one of your favorite cases? One of the things that you think had the most impact early on in this new field.
Ruth Bader Ginsburg: Well before I answer that question I brought along with me one of the — there was not too much — to inspire young women in my days. There was Nancy Drew and that was just about it. But, I read something by a very young woman. She was barely 15 when she wrote it. And if I can find it here I’d like to read it to you. So, as I said these are the words of a young woman just turning 15.
One of the many questions I have that has so often bothered me is why women have been and still are thought to be so inferior to men. It’s easy to say it’s unfair. But that’s not good enough for me. I’d like to know the reason for this great injustice. Men presumably dominated women from the very beginning because of their greater physical strength. It’s men who earn a living, beget children, and do as they please. Until recently women silently went along with this, which was stupid. Since the longer it’s kept up the more deeply entrenched it becomes. Fortunately, education, work, and progress have opened women’s eyes. In many countries they’ve been granted equal rights. Many people, mainly women but also men, now realize how wrong it was to tolerate this state of affairs for so long.
The letters is signed, Yours, Anne M. Frank.
It was one of the last entries made in her diary. I think this audience knows she was born in the Netherlands in 1929, she died in 1945 while imprisoned at Bergen-Belsen just three months short of her 16th birthday.
Isn’t that amazing that a child would write that.
Jane Eisner: Yes, I know. I’m so glad that you brought that up because I think we overlook that aspect of her writing in her diary.
Ruth Bader Ginsburg: Thank you. Well, you asked about gender discrimination litigation.
To pick a favorite is a little like asking me which of my four grandchildren and two step-grandchildren [laughter].
But I think to illustrate the arbitrariness of gender-based discrimination, Stephen Weisenfeld’s case is as good as any other. And this is Stephen Wiesenfeld’s story. He was married to a woman who taught in a public high school. She earned a little more money than he did. She had a healthy pregnancy. She taught into the ninth month.
At the hospital the doctor came in and told Steven, you have a healthy baby boy but your wife died of an embolism. Stephen Wiesenfeld decided at that moment that he would personally care for his infant, that he would not work full time until the child was in school full time. So he had heard about something called child in care benefits that social security afforded. He went down to the local Social Security office. And he said, I’d like to apply for child in care benefits. The benefits were arranged so that you could earn up to a certain amount and still get the benefits. Once you went above that amount your benefit was reduced dollar for dollar.
But Stephen thought that with the Social Security benefits and his part time earning he could just about make it. He was told by the attendant at the Social Security office, these are mothers’ benefits and not available to fathers. We’re in the early ‘70s now. And Stephen Wiesenfeld writes a letter to the editor of his local Edison, New Jersey newspaper.
It goes like this. “I hear a lot these days about women’s lib. Let me tell you my story.” And then he recites what happened at the Social Security office and his tagline was, does Gloria Steinem know about this?”
Well, I was teaching at Rutgers at the time. A woman who taught on the Spanish faculty lived in the same town, read the letter, and called Stephen Wiesenfeld, suggested that he contact the New Jersey affiliate of the American Civil Liberties Union.
And that’s how his case began. The court issued a unanimous judgment but they divided three ways in the rationale. So most of them, led by Justice Brennan said, this is a typical case of the discrimination women encountered. Paula Wiesenfeld paid the same Social Security taxes that the man would pay but her taxes didn’t net her family the same benefits that a man’s did. And then a few of them thought, this is discrimination against male as parentage. Because the law tells him: you have no choice, you have to be a full time earner, you have to hire a substitute to yourself to take care of your child.
And then one who later became my chief, then-Justice Rehnquist said “it’s totally arbitrary from the point of view of the baby. Why should the baby have the opportunity for care of a sole surviving parent when the parent who died is male but not when she’s female?” So everybody was hurt by this arbitrary gender based discrimination. That woman is [worth wager] and the male as parent and the baby.
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Jane Eisner: I was just saying I feel like there’s a lovely metaphor in that sort of triumvirate of answers, in that it shows that gender equality is actually for men and for women and for children. Did you see it that way?
Ruth Bader Ginsburg: Very much so and I thought we argued it.
Jane Eisner: Around that time in 1973 you delivered a full throated support for the Equal Rights Amendment which at that time had passed both houses of Congress but was never ratified by enough states to become part of the Constitution. And I’m just wondering, do we need an ERA now especially in this #MeToo moment?
Ruth Bader Ginsburg: First I should say that our Constitution is powerfully hard to amend. And the Congress it takes three-fourths, three quarters of the states to ratify and the ERA fell three states short. People ask me a question like the one you asked — haven’t women progressed under the 14th Amendment’s equal protection clause? To get to the point where you would be if they were an Equal Rights Amendment, and my answer is, perhaps.
But then I take out my pocket Constitution and say: I have three granddaughters. I can [take] this Constitution, our fundamental living instrument of government, and point to the First Amendment guaranteeing freedom of speech, press, religion. I would like them to see in that Constitution a statement that men and women are persons of equal citizenship stature. I’d like to see that as a basic tenet of our system. Every constitution in the world written since the year 1950 has an equivalent of an Equal Rights Amendment, a statement that men and women are persons equal in dignity and … our Constitution starts out, “We the people, in order to form a more perfect union.” And I think part of becoming, a very large part of becoming, a more perfect union is to embrace more and more people. think about how it was in the beginning, in 1787, when the original Constitution was written.
So, who are we the people? I would not have been there — half the population would not have been there. The people who were held in human bondage, Native Americans, were not part of the political constituency. But over … A little over two centuries, I think the genius of the Constitution is that this concept, that this concept of We the People has become ever more embracing. And so I would like to see an Equal Rights Amendment in our Constitution. And I’m still hopeful that there’s some movement in Congress to revive the Amendment.
Jane Eisner: You have spoken recently about your own #MeToo moment, which happened years ago. And one of our readers wondered whether you still experience sexism today?
Ruth Bader Ginsberg: Not that kind of sexism! I’m soon going to be 85. But is there a lingering bias? I think in the decade of the ‘70s most of the explicit gender based classification were gone, a combination of legislatures changing, courts issuing decisions. It was a conversation between the courts and the legislature to accomplish that change. Getting rid of almost all of the explicit gender based lines.
What’s left is what has been called unconscious bias. And my best example of that is the symphony orchestra. When I was growing up, I never saw a woman in the symphony orchestra except perhaps the harpist.
Howard Taubman, who is a well-known music critic for The New York Times, said that he could tell whether it’s a woman playing on the piano, the violin. One day someone decided to put him to the test so they sat him down and they blindfolded him. Then they had a procession of young artists come out and perform.
And he was all mixed up. He got it all wrong. So then someone came up with the brilliant idea: let’s drop a curtain. So that the judges of the competition would not see the people who were auditioning. And with that almost overnight there was a change in the composition of symphony orchestras.
A young violinist, when I told this story at a music festival some years ago, said “well, you left out something.” “What did I leave out?” “You have to have that we auditioned shoeless. They wouldn’t let a woman’s heels come in.”
Now unfortunately we can’t replicate the dropped curtain in every area. There’s a wonderful slim volume that’s two lectures by Mary Beard in which she explains … The first one is about women’s voicelessness. And the second is women in power.
But she starts with the story of Penelope coming down to where the suitors are and Telemachus her son telling her, mother, you’re not supposed to speak in public. Women don’t speak in public.
Jane Eisner: This is in Homer’s Odyssey.
Ruth Bader Ginsburg: Yes. I don’t know how many times I attended meetings as young faculty member where I would say something and there was silence and the discussion went on. And then maybe 10, 15 minutes later a man would say just what I had would be reaction. The idea.
There was a tendency to tune out when a woman was speaking because you couldn’t expect her to say anything worthwhile.
Jane Eisner: Well, in fact this condition really might be continuing. I found a study in 2015 of the women Supreme Court justices, so that would be you and Justices Kagan and Sotomayor —that you were interrupted three times more often than your male colleagues.
Now this was an academic study. Does that ring true to you? Does it mean anything?
Ruth Bader Ginsburg: I think the academic study is accurate if you look at the transcripts. I’m glad that that report came out because I think things will change, men will be more conscious that this is happening. On the other side I did say that we have been so good about not interrupting. When Justice Scalia was alive it was a competition between Sotomayor and Scalia to see who could ask the most questions in an oral argument.
So many …
Let me tell you. It’s very Jewish story. So … one day in an argument session Justice O’Connor was asked a question. And then I jumped in. And she said, “just a minute, I’m not finished.” Next day in USA Today, headline, “Rude Ruth interrupts Sandra.”
At lunch immediately after the argument, I apologize and she said, really, don’t worry about it at all. The guys do it to each other all the time. So when I was asked my reaction to this article, that’s what my response was. The reporter who wrote this story watched for the next two arguments. He said, “She’s right. I never noticed it when the men are interrupting each other.”
Then a woman came to my rescue from Georgetown — a great expert in language — and she tried to explain how was it that I came to interrupt Sandra. Well, Justice Sandra Day O’Connor is from a ranch on the border between New Mexico and Arizona, a laid back gal from the West. And I am a fast talking Jewish girl from New York. When people who know the two of us know that Sandra got two words for my every word. But that’s a very typical, meant well, illustration that Jews are fast talking and susceptible to interrupting each other.
Jane Eisner: So many of our readers — men and especially women — are really hungry for your advice. Here’s Becky from Raleigh, North Carolina. She says she has been working as a paralegal for only a few months and has already faced discrimination. She wants to pursue her dream of a legal career. What advice would you give her?
Ruth Bader Ginsburg: First, find allies. Being a loner is hard, but if you have other people with you that points to your confidence and your spirit. And don’t respond to an insult you have experienced by saying “you sexist pig.”
I thought that my job in the early ‘70s was to be a kind of a kindergarten teacher, to explain to justices that there really was a thing as gender based discrimination.
There was a big difference between their understanding of racial discrimination and gender discrimination. Racial discrimination was odious. Discrimination between men and women, the myth was that it always operates benignly in the woman’s favor. So to tell a man who thinks she’s been a very good husband and a very good father that he is a discriminator, it takes an education for them to see that there really is such a thing, because every time the Supreme Court met up with a gender based classification before 1971 it rationalized it as a favor to women. Women weren’t put on the jury roles. “Well, that’s a favor: they mustn’t be distracted from their work as the center of home and family life.”
Never mind that it has something to say about women’s citizenship. Citizens have obligations as well as rights. One obligation is to participate in the justice system. Men are obliged to serve but women are expendable. Or the notion that … one typical law passed by the state of Michigan in the 1940s: a woman could not serve as a bartender unless her husband or her father owned the establishment. The testing case was a mother owned a tavern and her daughter was her bartend. The Supreme Court dispatched that as legislation meant to protect the woman from unsavory places. Never mind that there was no restriction on the woman being a barmaid — that is the one who carried the drinks to the table. She didn’t stand behind a bar to protect her.
That was in 1943 … but that was the thinking with these classifications. It took a while for judges to understand what Justice Brennan said so well: This pedestal that women are supposed to stand on more often than turns out to be a cage. So that was mission to get judges to understand that there really such a thing as gender based discrimination.
Jane Eisner: So one of the justices that it seems you’ve had over the years the warmest and most unusual relationship [with] is the late Justice Antonin Scalia. And there are many people who marvel at the fact that the two of you disagreed so vehemently and yet had such a warm and deep relationship, and some of our readers asked about this. A teacher wrote in and said her public policy students say they can’t talk to their peers whose political views differ from their own. Another reader says it’s so hard to talk to family members these days and friends who don’t agree with them. So I’m wondering, how did you and Justice Scalia do it?
Ruth Bader Ginsburg: The first time I met Justice Scalia he was then a professor teaching at the University of Chicago. I attended a lecture he gave. I disagree with a lot of what he said but I was totally captivated by the way he said it.
He is a man — was a man — with a great sense of humor. When we became buddies on the D.C. Circuit, where the court sits in panels of three judges, and he would whisper something to me in the middle of an oral argument it would totally crack me up. All I can do to avoid bursting out in hilarious laughter.
We shared certain things. One is he was brought up in Queens. I was brought up in Brooklyn in roughly similar neighborhoods where people were either Irish or Italian or Jewish. We both really cared about families. We had an annual New Year’s party where the fare would be whatever, you know, hunted. So usually it was Bambi and my husband, who was a great chef, made venison. And whatever children were around came. And then we shared a love of opera. In fact there is an opera, it was a comic opera, called Scalia-Ginsburg.
And I think it does a wonderful job of explaining our friendship. It starts out with Scalia’s rage aria. And the rage is typical Handelian in style. It goes like this: The justices are blind/How can they possibly spout this/The Constitution says absolutely nothing. About this. And then I respond that he is searching for (bright line) solutions to problems that don’t have easy answers. But, the great thing about our Constitution is that like our society, it can evolve.
Well then Scalia gets locked up in a dark room. He’s being punished for excessive dissenting. And he has to go through certain tests to get out.
So I enter through a ceiling.
And then I tell the character of Don Giovanni who’s in this, Scalia Ginsburg, was called the Commendatore. And he is astonished: he said, “Why would you want to help him? He’s your enemy.” And then we do a wonderful duet.
I say, “he’s not my enemy, he’s my dear friend. Yes, we are different but we are one — different in the way we approach interpretation of legal texts. But one in our reverence for the Constitution and for the institution we serve.”
We recently had excerpts from the Opera Scalia-Ginsburg at the Library of Congress. The audience were members and staff of the House and Senate Judiciary Committee.
The next day Senator Grassley asked if he could have a copy of my remarks.
Sometimes I would speak to Justice Scalia in private and say, “this is so over the top, what you have written. Tone it down, it will be more persuasive.” He never took that advice.
But on the other hand he would come into my chambers. Scalia was a great grammarian. His father was a Latin teacher at Brooklyn College and his mother had been a grade school teacher, so if I made a grammatical error he would let me know. He’d either call or come into chambers. He never sent a message, never sent a memo around so that I could be embarrassed at the mistakes I made.
Jane Eisner: Do you think that there are lessons in your friendship now? We’re in such a polarized time and I think people really are thirsty for role models that are able to transcend their philosophical or political or judicial differences. Is there any lesson in your friendship for us?
Ruth Bader Ginsburg: Well I think it is our caring about the welfare, the good and welfare of the court. And anybody who is in a decision making body, that should be number one priority. I would say that the Supreme Court is the most collegial place I’ve ever worked, beyond any law faculty, beyond the D.C. Circuit. We all respect and in most cases genuinely like each other. ** Jane Eisner:** And I probably can’t ask you to describe…
Ruth Bader Ginsburg: But let me tell you the way it was in the not so good old days. Think of Justice Brandeis coming on the court. He is a second Wilson appointee. The first was Justice McReynolds. Justice McReynolds was an out and out anti-Semite. And when Brandeis, this brilliant man who was sometimes called Isaiah, when Brandeis got up to speak in conference, McReynolds would leave the room. Really.
Jane Eisner: Did anyone object, did anyone say this is wrong?
Ruth Bader Ginsburg: Yes, in time he overcame his difficulties.
Jane Eisner: So you had a very warm and loving and quite unusual partnership with your late husband Marty. I understand that he was much more socially gregarious than you were for many years. He was a great cook. And a raconteur. And it does seem that since his passing your public persona has grown, and I’m wondering if that’s a coincidence or whether there is some connection there.
Ruth Bader Ginsburg: Marty was my biggest booster all my life. We were married the same month I graduated from college. Marty had his first year of law school. He was then taken out at the tail end of the Korean War for service. So when he went back, he was in his second year, I was in my first year. And one of his classmates, this is someone I had known at Cornell, said to me, “you know your husband, he’s bragging about you. He’s saying you’re going to be on the Law Review — and I looked at you and you were this little twerp person.”
But that’s the way Marty was — always made me feel I was a little bit better than I thought it was. But which was extraordinary for a young man. In the 50s I went to a school, Cornell University, where the ratio was four men to every woman, it was the ideal place for parents of a daughter.
If you could not find a man at Cornell you were hopeless.
What made Marty so overwhelmingly attractive to me is that he cared that I had a brain and I hadn’t met a guy before who was interested at all. And some of my classmates at Cornell, very bright women, they would play dumb. That was the way to please the man, to make him feel more important. Marty was so secure in his own ability that he never regarded me with any kind of a threat. Far from it. I think his idea was, if I decided I wanted to spend the rest of my life with Ruth she’s gotta be something special.
Jane Eisner: Yes, it’s rather hard to imagine you playing dumb. So you’re rather famous person now you know and I’m just wondering, I mean, here you have your own swag and there’s mugs and you have your tote bag — your dissent tote bag. Is it strange to see your face on mugs and tote bags?
Ruth Bader Ginsburg: Well this is all the creation of a second year law student. … [unclear] and it started when the Supreme Court decided the Shelby County case that cut the heart and the Voting Rights Act of 1965. [unclear] was angry about what the court did and then decided that anger is a useless emotion she would do something affirmative, something positive so she created this Tumblr that starts with my dissent in Shelby County case.
And then she thought about its proper name. Someone suggested a fellow Brooklynite. The Notorious B.I.G. People didn’t know that we had that very important thing in common. And it’s just taken off from there. I mean it’s amazing to me. In March I will be 85, and everyone wants to take my picture.
Jane Eisner: So Kate McKinnon plays you on Saturday Night Live, Felicity Jones is starring as you in a new feature film, a documentary just debuted last week at Sundance. How does it feel to see yourself on the screen?
Ruth Bader Ginsburg: I’ve seen the documentary, it’s really good. It’s really good.
Kathleen Peratis who introduced me is in it. My personal trainer is in it. The filmmakers spent an hour in the gym with the two of us and maybe two, three minutes shows in the film. The one with Felicity Jones … I should give equal billing to the person who plays Marty — Marty is Armie Hammer. And so somebody said, for one he’s taller than Marty. They said, and do you think you’re the same height as Felicity Jones? Anyway that film was called On the Basis of Sex. And it will be up probably at the end of 2018.
The script was written by my nephew, the son of Marty’s sister, and he based it on a case that Marty and I had argued together. It is a case that didn’t go to the Supreme Court and I asked Daniel my nephew why he had picked that case, and he said because he wanted this film to be as much about a marriage as it was about the legal case. And the case is very good. It’s Charles E. Moritz versus the Commissioner of Internal Revenue. This was a man who took good care of his mother though she was 93. The Internal Revenue Code had a deduction. If you hired someone to be a substitute for yourself to take care of a child, an elderly parent and infirm relative to any age. The deduction was available to any woman. Or to a widowed divorced man. Charles E. Moritz never married. He took that deduction. It was disallowed. He filed his own case in tax court. He filed his own brief which was the soul of simplicity. It said “if I were a dutiful daughter I would have gotten this deduction. I’m a dutiful son. What sense does this make?”
I think the tax court judge said something to the effect of “we glean the taxpayer is making a constitutional argument. But everyone knows that the Internal Revenue code is immune from constitutional attack. It’s riddled with arbitrary lines.”
Anyway we took Charles E. Moritz’s case to the 10th Circuit in Denver. The 10th Circuit decided that case in our favor. Congress changed the law retrospectively, that was the interplay between the court and the legislature. The court said this standard line is no good and the legislature fixed it. Nevertheless the solicitor general asked the Supreme Court to review the decision. And explain that even though this gender line was over, the 10th Circuit’s decision casts a cloud of unconstitutionality over dozens of federal statutes. See Appendix e. Appendix e was a list of every provision in the U.S. Code that differentiated on the basis of gender. It came from the Department of Defense computer — these were the days when no one had a personal computer — but it was a bonanza. There it was, all the provisions that needed to be changed.
So that is the case that is the center of, On the Basis of Sex. That’s the name of the film.
Jane Eisner: So many democratic norms seem to be under assault, now, undermined. The media, the judiciary, I’m just wondering if you think there is a moment when justices should respond.
Ruth Bader Ginsburg: The judiciary is a reactive branch of government. It doesn’t generate the controversies that come before it. It has no agenda. It’s reactive to what’s out there. A very fine federal judge, Judge Goldberg from the Fifth Circuit, once said “the court don’t make conflagrations but they do their best to put them out.” If people ask me about an opinion all I can say is that judges do depend on the bar to explain the importance of an independent judiciary. It is our nation’s hallmark and pride. The federal judiciary.
Jane Eisner: Are there any decisions that you regret?
Ruth Bader Ginsburg: I can answer that question by telling you the advice I was given when I was a brand new judge on the D.C. Circuit by my senior colleague Ed Tam. He said “Ruthie, you’ve got to work hard on every case. Every opinion you write. But when it’s released, when it’s over, don’t look back. Don’t waste your time worrying about what’s done. Go on to the next case and give it your all.” And that is wonderful advice for judge.
Jane Eisner: And were you able to follow that with that?
Ruth Bader Ginsburg: Without any difficulty, yes.
Jane Eisner: I am really impressed.
Ruth Bader Ginsburg: My, I must say, I haven’t had the kind of challenge that some of my colleagues had when asked about Bush v. Gore. So Justice Scalia’s answer to people, he says, “get over it.”
Jane Eisner: So over the years there’s been a suggestion that the lifetime tenure of Supreme Court justices be replaced by a set term. That might, say, span several presidencies. It might reduce partisan anxiety. It could mean that older judges could be selected to serve. It could be a graceful way for judges perhaps past their prime to leave the bench.
And I’m just wondering what you think about this idea.
Ruth Bader Ginsburg: It is a subject on which I am biased and prejudiced. And I will admit, most countries in the world have a compulsory retirement age. Most of our states have compulsory retirement age for judges. Some have a fixed term, fixed non-renewable term, but I’m grateful to the founding fathers for writing into the Constitution that the judges shall hold their office during good behavior. So, many people have asked me well, when are you going to step down.
[from the audience: Never!]
My first response was, I had a painting on loan from the Museum of American art it by Josef Albers and I loved it. And he took it away from me for a traveling show. About eight years later it came back. So I said I couldn’t even begin to think about me until I get my Albers back.
Now the next was Brandeis. He was the same age as I was when he was appointed. He stepped down after 23 years that were four years 20 to 23. But now I’m the longest sitting Jewish justice — more than Brandeis, more than Frankfurter. So I can’t use that.
So I’m just candid and say as long as I can do the job full steam I will be here.
Jane Eisner: We are sadly almost out of time. There is one question that I must ask you. If I can take a personal privilege here it’s a question that I had the privilege of asking President Obama and Prime Minister Benjamin Netanyahu and Susan Rice when she was national security adviser. What is your favorite flavor of bagel?
Ruth Bader Ginsburg: A New York poppy seed bagel.
Jane Eisner: This is amazing! I did not know the answer to this and this may be the only thing that Barack Obama and Benjamin Netanyahu and Ruth Bader Ginsburg agree on. They all pick poppy seed. Wow. I am amazed.
So of all the many questions and notes from readers that we received one stands out and I’d like to quote from this in our closing. It comes from Carly Rae Brown of Evansville, Indiana and Carly, I hope that you are watching. She is nine years old in the fourth grade and she says that she is your biggest fan. Her Girl Scout troop marched in a Christmas parade and they were asked to hold up signs about what they wanted to be when they grew up and her sign said Supreme Court Justice. And she wants to be a Justice, she says, to support women’s rights and other people who aren’t treated fairly. She also — are you ready — wants to be called C.R.B.
And here’s her question. She said, “What can I do now as a 9 year old to make a change. How can I follow in your footsteps?”
Ruth Bader Ginsburg: May I say first that the idea of a young girl aspiring to be a judge, even more, even more Supreme Court justice is a wonderful thing. I have a granddaughter who is now a lawyer. When she was eight I was being filmed for some show. My granddaughter Clara was with me and she said she wanted to be in the film too. So the maker said, “Oh alright Clara, we’ll ask you a question. What would you like to be when you grow up?” And this then eight-year-old said “I would like to be president of the United States of the world.”
It’s the difference between the aspirations that young women can have today and what they had in the so-called good old days. I think she should take her schoolwork very seriously and become a good reader. Reading is tremendously important in the job now. And then do things in your community — I’m sure you will find things. Whether it’s assisting in getting food to the homeless people or if you care about the environment, helping keep local parks clean. And anything that you can do to make things a little better in your community. So that is what I would advise her to do.
Jane Eisner: Well she asked me to ask you to please stay on the Supreme Court until she can take your spot.
Somehow I think there are people in this room who might agree.
I just want to thank you all. This has just been an amazing evening. Personal thanks to my dear friend and wonderful supporter Kathleen Peratis for the lovely introduction and for all that you did to make this happen. To Rabbi Holtzblatt and Rabbi Alexander as well as David Polonsky and Courtney Tisch, all the people of Adas Israel, you guys are amazing. it was such a pleasure to work with you. I’d like to recognize the Forward’s board chair Jake Morowitz and our president Sam Norich. And the rest of the Forward’s national board, many of whom flew in here to Washington to be here tonight. And Forward readers and supporters. Without your generous support, we couldn’t do what we can do and for all of you who came here tonight and all of those who are watching on Webcasts and Facebook online. Thank you so much for being part of this wonderful conversation.
And of course our greatest thanks to Justice Ruth Bader Ginsburg.
Transcribed by Sam Bromer.
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