The Daily - Part 1: The Life of Ruth Bader Ginsburg

Episode Date: September 21, 2020

When Ruth Bader Ginsburg graduated from law school, she received no job offers from New York law firms, despite being an outstanding student. She spent two years clerking for a federal district judge, who agreed to hire her only after persuasion, and was rejected for a role working with Justice Felix Frankfurter because she was a woman.With her career apparently stuttering in the male-dominated legal world, she returned to Columbia University to work on a law project that required her to spend time in Sweden. There, she encountered a more egalitarian society. She also came across a magazine article in which a Swedish feminist said that men and women had one main role: being people. That sentiment would become her organizing principle.In the first of two episodes on the life of Justice Ginsburg, we chart her journey from her formative years to her late-life stardom on the Supreme Court. Guest: Linda Greenhouse, who writes about the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily Background reading: Ruth Bader Ginsburg died in her home in Washington on Friday. She was 87. The second woman appointed to the Supreme Court, Justice Ginsburg’s pointed and powerful dissenting opinions made her a cultural icon.“Ruth Bader Ginsburg’s life and landmark opinions moved us closer to a more perfect union,” former President Bill Clinton, who nominated her for the court, wrote on Twitter. Other tributes have poured in from leaders on all sides of the political spectrum.

From The New York Times, I'm Michael Bolvaro. This is The Daily. Justice Ruth Bader Ginsburg changed the law. But my colleague, Linda Greenhouse, who covered the Supreme Court for The Times for three decades, says it went further than that. That Ginsburg also transformed the roles of men and women in society. Today, four chapters in the life of the Supreme Court's feminist icon.

It's Monday, September 21st. Linda, what is the first chapter of Ruth Bader Ginsburg's life that we should understand? How should we understand the formative years of her life? So I think it's fair to say there was nothing about the young Kiki Bader, as she was known then, a smart kid, a high school cheerleader, a twirler, that would have given anyone the impression that this was a woman who was going to grow up to change the world, or even somebody who was, in her time and place, uncomfortable about the world as it was. time and place uncomfortable about the world as it was.

It was luck that I met Marty. At Cornell, she meets a fellow student who was a year ahead of her, I guess, Marty Ginsburg. Marty was the most unusual fellow. I've said many times he was the only boy I ever knew up till that time who cared that I had a brain. So there was an early marriage, there was an early baby, her daughter Jane. But the thing about Marty was that he had such confidence in himself and he never regarded me as any kind of a threat on the contrary and Monty thought that I must be really special if he wanted to spend his life with me he was always my biggest booster.

He has to join the Army because he'd been in ROTC. And they go off to Fort Sill, Oklahoma, where he's an army officer and she needs a job. She takes a civil service exam. She gets offered a GS-5, not very elevated position as a claims adjuster. I think it was the Social Security Administration. But she mentions that she's pregnant. And they say, oh, no, well, we can't hire you in that position because you would have to travel for some training. oh, no, well, we can't hire you in that position because you would have to travel for some training.

And they offer her a GS2 position as a clerk typist, which is so far beneath her. But she takes it. And she's quoted as saying, well, that's the way things are. Hmm. So this is not somebody rocking the boat in these institutions and in this time. This is not somebody at war with the institution, nor was she in the next phase of her life. Marta goes off to Harvard Law School, Ruth follows, and in her early months as a first-year law student, she's invited along with the eight other women in a class of 550 people to dinner at the dean's house. And the dean goes around the table, these nine female first-year law students, and asks each one of them to justify why she's there,

why she's taking a place that could have gone to a man at the great Harvard Law School. And Ruth says, well, I'm here. You know, my husband is a second-year law student, and I want to learn the law so that I can be helpful to him and understand what he does in his professional life. And so the question of how we get Ruth Ginsburg to go from that's the way things are to that's the way things don't have to be is really the story of this woman's life. is really the story of this woman's life. Well, what is a key turning point in this journey of Ruth Bader Ginsburg starting to challenge the institutions and the society around her?

Well, it really took a while, and it may surprise people that it took as long as it did. She graduated at the very top of her law school class. One of her very senior professors recommended her for a clerkship with Justice Felix Frankfurter on the Supreme Court. And Justice Frankfurter wrote back and said, she looks great on paper, but I can't have a woman in my chambers. So he was very explicit about it. Oh, yes, very. And all that was kind of going along. And then she took a job in, of all places,

Sweden. This goes back to 62 and 63. Women were perhaps 5% of the law students in our country. They were 20% in Sweden. She had a project to study and write a volume on the Swedish civil justice system, for which she learned Swedish. And what she noticed about Sweden is that it was a startlingly egalitarian society. I watched one proceeding. It was a trial court in Stockholm, and the presiding judge is eight months pregnant. This is at a time in the United States when if you were a teacher and you began to show, you were out of the classroom. I think it's fair to say it caused her to question the whole organization of the society in which she had grown up, in which she had excelled, and in which she now was being roadblocked

for professional advancement because of her sex. So that was revealing. I didn't do anything with it immediately because there was nothing to be done in the United States. But it was sort of on a back burner. And it was while she was in Sweden that she read in a magazine, a Swedish feminist said, men and women have one principal role, that of being people. that of being people.

And that became an organizing principle. And as we move with her into her litigating career, she paid as much attention to the rights to equal protection of men as she would for women, because men and women had one principal role, people. role. People. But that was still kind of a radical idea back in the U.S. that women just as men had one role, which is to be fully realized people. It was a radical idea in society, and it was a radical idea in the Constitution, because the great Earl Warren Court, the famous progressive Supreme Court that brought us Brown against Board of Education and rights for criminal defendants and so on, never once in not a single case looked at the 14th

Amendment's guarantee of equal protection in the Constitution as having anything to do with women, anything to do with sex discrimination. They just, it never occurred to them. They just never saw it. So what's the next chapter in the story of Ruth Bader Ginsburg? How do we start to see these new principles come to the fore back in the U.S.? come to the fore back in the U.S.? She decides to go into academia. She looks for jobs at the very top law schools, doesn't get one. She starts teaching at Rutgers in New Jersey. She begins taking cases that people bring her, women bring her,

involving discrimination, women's rights. And she's eventually invited by an old camp friend of hers, Melvin Wolf, who was an officer at the American Civil Liberties Union, the ACLU, to help him handle a couple of cases. She eventually becomes the head of a new project at the ACLU, the Women's Rights Project. And from that base, she organizes a litigation campaign that really resonates with the campaign for equal protection on the basis of race that Thurgood Marshall ran in the 1940s and 50s for the NAACP Legal Defense Fund. Of course, Thurgood Marshall eventually ends up on the Supreme Court, but he was famous for thinking ahead and designing a

campaign that would kind of serve up to the courts, especially to the Supreme Court. One case at a time, and each case in our common law system builds on the cases that went before. She did the same thing. What she did, she found male plaintiffs who had been discriminated against on the basis of being men. Mr. Chief Justice, and may it please the court. The case she was most attached to, I think, was the case involving a male plaintiff, Steven Weisenfeld. Steven Weisenfeld's case concerns the entitlement of a female wage earner, a female wage earner's family, to social insurance of the same quality as that accorded the family of a male wage earner.

Whose wife had died in childbirth and he wanted to be able to stay home and raise the child. The underlying assumption was wives are typically dependent, husbands are not. home and raise the child. is that in the favored unit, the husband's employment attracts the benefit in question. The real legal question in that case was the assumption that a man wasn't going to need child care benefits because, of course, a man wasn't going to be taking care of a child. That's women's work. It seems almost ridiculous to say that he had to go all the way to the Supreme Court to say, you know, I am the caretaker of my child. There is nobody else. But the law just somehow could not envision that there would be such a situation. This case, more than any other yet heard by this court, illustrates the critical importance of careful judicial assessment of law-reinforced sex role pigeonholing

defended as a remedy. So in these cases she's bringing, it sounds like her approach in this moment is to make progress for women, in part, by winning legal victories for men. That's absolutely right. I mean, that was a major part of her project. And also, don't forget, she was arguing before nine men.

There never had been a woman on the Supreme Court. If they were going to buy what she was selling, they could not be faced with being parties to a social revolution. Even though really, if you understand the project, that's what she was asking them to become, parties to a social revolution. But she was doling it out in such little inoffensive doses that by the time they were finished swallowing everything that she had served them, they had in fact become a partner in that revolution. And what ultimately did Ruth Bader Ginsburg accomplish by the end of her time at the ACLU? By bringing these cases with male plaintiffs,

she gradually not only started building a jurisprudence of sex equality. She didn't like the phrase women's rights, really. It's sex equality of men and women. She did that one case at a time. She argued six cases and she won five of them, which is an amazing track record. But she was also drilling down, getting the court to accept the notion that when it comes to the law, men and women are not different. They're just people. And so by the end of her time at the ACLU, by the end of her litigating career, she had really led the court into a reinterpretation of the 14th Amendment's guarantee of equal protection, I think it's totally fair to say that she did something very remarkable in persuading these nine men of the court to see things her way.

So what happens after this chapter as a litigator? What comes next? When Jimmy Carter became president in 1976, there were only eight women on the federal bench out of hundreds and hundreds of federal judges. Judge Ginsburg, how did you come to be a judge on the U.S. Court of Appeals? I was from 1972 to 1980 at Columbia Law School. I didn't think specifically about becoming a judge because, frankly, I didn't think it was possible. And Ruth Ginsburg, who was then teaching at Columbia Law School, decided that she would like to be one of them. Were you surprised when you were appointed?

I don't think it's fair to say that I was surprised. I was elated that the Carter administration made a concerted effort to appoint women to the judiciary. Jimmy Carter nominated her to the U.S. Court of Appeals for the District of Columbia Circuit, usually regarded as the second most powerful federal court in the country, second only to the Supreme Court. So what's interesting about Ruth Ginsburg's time on the D.C. Circuit is, you know, kind of forward-looking and you might say activist as she had been as a litigator. That was not the role that she assigned herself as a judge.

A federal judge has an obligation to do justice fairly and equally to all parties who come before the court. She had a very moderate jurisprudence. She was famously friendly with judges to her right, Judge Antonin Scalia, even Judge Robert Bork. By some measure, she voted with them, in fact, more than she voted with the liberals on the court. So I think most judges do recognize the tradition, the importance of the job that they're doing, and for them to do that job with total impartiality. And there were feminists who kind of had their doubts about her. And their doubts were really elevated when she gave a talk at New York University Law School in early 1993. I had written a comment on Roe v. Wade, and it was not 100% applauding that decision.

That was very critical of Roe v. Wade, the 1973 abortion case. What I said was, the court had an easy target because the Texas law was the most extreme in the nation. was the most extreme in the nation. I thought Roe v. Wade was an easy case and the Supreme Court could have held that most extreme law unconstitutional and put down its pen. Instead, the court wrote an opinion that made every abortion restriction in the country

illegal in one fell swoop. And that was not the way that the court ordinarily operates. This came both out of her stance as what you might call a judicial restraint liberal, but also from her belief that the fact that the Supreme Court in one fell swoop invalidated all the abortion laws in the country at a time when she saw the road to reform through legislative work opening up in the right to abortion into the world in a weaker, more vulnerable position than it might have been had the court stayed his hand and let the forces of reform do their work democratically. Her critique of Roe against Wade was based on her belief that things just work better if the Democratic branches can work out problems without the courts stepping in. Some women felt that I should have been 100 percent in favor of Roe v. Wade because I wasn't. So when a vacancy opened up on the Supreme Court just a few months later and President Clinton was asked by many people to nominate Ruth Ginsburg, he had heard these objections and he said to people, but the women don't like her. I wish you all a good afternoon and I thank the members of the Congress and other interested Americans who are here.

the Congress and other interested Americans who are here. But after careful reflection, I am proud to nominate for associate justice of the Supreme Court Judge Ruth Bader Ginsburg of the United States Court of Appeals for the District of Columbia. He nominated her anyway. I thank you all. I thank everyone for their cooperation, all of my colleagues. And this hearing is adjourned. all of my colleagues, and this hearing is adjourned.

She was confirmed by a vote of, I think the vote was 97 to 3. That was a simpler age. Justice Ginsburg, will you raise your right hand and repeat after me? I, Ruth Bader Ginsburg, do solemnly swear. I, Ruth Bader Ginsburg, do solemnly swear. That I will support and defend the Constitution of the United States. That I will support and defend the Constitution. And so she joins the court as the second woman, Sandra Day O'Connor, having been on the court by that time for 12 years. The duties of the office on which I am about to enter.

The duties of the office on which I am about to enter. So help me God. So help me God. So now there are two. And how do her early days as a Supreme Court justice go? So at the start of her Supreme Court tenure, I wouldn't say Ruth Ginsburg made a big splash. She was the junior justice. The junior justice doesn't get any really big cases to do. Justice doesn't get any really big cases to do. She worked her way quietly. She formed, I think, quite a bond with Justice Sandra Day O'Connor, who had been the lone female on the court in history before Ruth Ginsburg got there. The opinion of the court in two cases, number 94, 1941, United States against Virginia, number 94, 2107, Virginia against Virginia against United States will be announced by Justice Ginsburg. And her first really big opinion came a few years in. This case concerns an incomparable military college, the Virginia Military Institute, the sole single-sex

school among Virginia's public institutions of higher learning. It was the Virginia Military Institute case. And the question in that case was whether it violated the Constitution, violated the 14th Amendment, equal protection, for the state of Virginia to run a military college that admitted only men. The school's unique program and unparalleled record as a leadership training ground has led some women to seek admission. And the important thing to know about VMI, the Virginia Military Institute, was it was really part of the political structure of the state of Virginia. It was really very helpful to a man's career to have gone there.

The case has had a long history in court. In the first round, the district court ruled against the United States, reasoning that the all-male VMI served the state policy of affording a diverse array of educational programs. And ended up with a Ginsburg opinion over the sole dissenting voice of her old friend Justice Scalia, saying that not only was the exclusion of women unconstitutional, but it incorporated a notion of men's work and women's work, and that women somehow weren't suited by their nature to the kind of education that VMI was offering. And that was part of the very essence as to why it was unconstitutional. As this court said in Mississippi University for Women Against Hogan some 14 years ago, state actors may not close entrance gates based on fixed notions concerning the roles and abilities of males and females. Now, in writing that opinion, she drew on an earlier Sandra Day O'Connor opinion that had declared unconstitutional a state nursing program in Mississippi that had excluded men. And Justice O'Connor, in that opinion,

had explained why that notion had anchored in a stereotype view of men's work and women's work. And Justice O'Connor had drawn on the Supreme Court cases that the litigator, Ruth Bader Ginsburg, had won in the Supreme Court. So there was a kind of a perfect circle that was closed by Justice Ginsburg's opinion in the VMI case that really is, when you think back on it, quite a wonderful thing. We therefore reverse the Fourth Circuit's judgment and remand the case for proceedings consistent with this opinion. So coming off of this big win in Virginia, what do we see in this period of Justice Ginsburg's tenure on the Supreme Court? Following the VMI case, she had a number of significant decisions.

You know, there were abortion cases. There were all kinds of other equal protection cases on the basis of race and so on. And, you know, she certainly had a voice, but it's hard to say that people were singling her out as symbolizing some particular way of being as a Supreme Court justice during those years. She was far from being a household name. Mm-hmm. Then what changes? Because we know she does become a highly identifiable figure on the court with a viewpoint and a voice for it.

So at the beginning of 2006, Justice Sandra Day O'Connor retired. And that left Justice Ginsburg as the only woman on the court. And that ushered in a period that she later called the worst of times. And, you know, surrounded by these eight guys, one of whom was Justice O'Connor's replacement, Justice Samuel Alito. Much more conservative than Justice O'Connor. And his arrival just solidified a conservative majority on the court. It left Justice Ginsburg, you know, kind of lonely and a bit isolated. And things started to change. Rather quickly, actually, as she found a voice in dissent

that we really had not heard in her majority opinions or in cases before the court took this turn to the right. We'll be right back. So Linda, tell us about this final chapter, about Justice Ginsburg really starting to find her voice on the Supreme Court during this period. I think the most striking moment, and this is in the post-O'Connor period and before two new female justices came on the court, Justice Sonia Sotomayor and Justice Elena Kagan. So, Ruth Ginsburg is all alone. Sotomayor and Justice Elena Kagan. So, Ruth Ginsburg is all alone. We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company. Mr. Russell? There's a case called Ledbetter. Justice, and may it please the court. A jury found that at the time petitioner filed

her charge of discrimination with the EEOC, respondent was paying her less for each week's work than it paid similarly situated male employees, and that it did so because of her sex. Lily Ledbetter had been a factory manager, the only woman at that level in this particular organization, and she didn't find out until she had retired that she had been paid considerably less than all the men in her same rank. And so she filed a lawsuit under the Federal Equal Pay Act. The question for the court is whether that present act of disparate treatment because of sex constituted a present violation of Title VII.

And the question in this lawsuit was, did she file it in time? Because there was a statute of limitations. And the question was, when did the statute of limitations begin to run? Did it begin to run from the moment that the pay discrimination occurred, which was years earlier and she didn't know about it, or from the moment when she found out about it and had the ability to go do something about it? That was the question for the Supreme Court. Justice Alito has our opinion this morning in case 05-1074, Ledbetter versus Goodyear Tire and Rubber Company. The case was 5-4. Justice Alito wrote for the majority. Ledbetter asks us to depart from our precedents and endorse a special rule for cases involving pay discrimination. That actually the statute had begun to run years earlier and had long since run

out by the time Lily Ledbetter knew about the discrimination and brought her lawsuit. So the lawsuit was out of court. On which she relies, her charge was untimely. We therefore affirm the judgment of the 11th Circuit. Justice Ginsburg has filed a dissenting opinion in which Justices Stevens, Souter, and Breyer have joined. Four members of this court, Justices Stevens, Souter, Breyer have joined. Four members of this court, Justices Stephen Souter, Breyer, and I, dissent from today's decision.

And Justice Ginsburg not only wrote a dissent, but she read her dissent from the bench. In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination. Something she had rarely done and justices rarely do. It happens now these days a little more often, but it was really quite unusual then. In other words, it was a sign of just how forcefully she disagreed with the majority. That's right. I mean, in a way, reading a dissent from the bench is kind of a performance.

Ledbetter's initial readiness to give her employer the benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her of a salary depressed because of her sex. The press corps is sitting there and this says to the press, you know, you may not have paid attention to this little case on equal pay. It's not the big marquee headline case of the term or anything. But I'm reading this dissent from the bench. And this is my way of saying you pay attention to this. Something really has gone wrong here. This is not the first time this court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose. In 1991, Congress passed a Civil Rights Act that effectively overruled several of this court's similarly restrictive decisions,

including one on which the court relies today. Her dissent ended in a very striking way, she said. Today, the ball again lies in Congress's court, as in 1991, the legislature has caused to note and to correct this court's parsimonious reading of Title VII. The ball is now in Congress's court. And remember, this is a woman who on the D.C. Circuit really embodied the notion that there should be a partnership between the judiciary and the elected branches. So the ball is now in Congress's court. So I went back to the office and I thought about it.

I thought this is, you this is really quite remarkable. This is not the Ruth Ginsburg that I've watched all these years. So I called her up. I called her up in her chambers and she took the call. I mean, we knew each other, but I had never actually discussed a pending matter with her. I was very careful not to sort of transgress the role norms that kind of govern life in Washington. But I said to her, wow, I said, I heard you and, you know, what got into you? Toledo understood the way the workplace works and that people don't know what their colleagues or the person next to them on the assembly line or at the next desk are making. And they have no way of knowing, unlike the federal government.

So I wrote a story not only describing the Ledbetter case, but I wrote a story that said, this is the term that Justice Ruth Bader Ginsburg found her voice. And it was a voice in dissent. So just as a historical footnote, the ball indeed was in Congress's court. This issue is about fairness. It is about equity. If we're going to permit discrimination in the workplace, we shouldn't permit it to pay. And the best way to make sure that it does not pay is to provide the remedy to ensure that it will not. And Congress passed a law amending the Equal Pay Act. It was called the Lilly Ledbetter Fair Pay Act to make it clear that the statute of limitations doesn't begin to run until the plaintiff who's been discriminated against has reason to know what's happening.

Ladies and gentlemen, the President of the United States, accompanied by Mrs. Lily Ledbetter. And it was the first bill that President Barack Obama signed into law after his inauguration in January of 2009. So thank you, Lily Ledbetter. And, you know, it was not the most important case. It was not her most important dissent. But it was one that ties a transformation in the Justice Ginsburg that had been before and the rock star Justice Ginsburg that in her last years on the court, she rather surprisingly became. What do you mean? Well. She's a feminist icon and a favorite among the young people now the iconic ruth ginsburg it was superhero day at a school in brooklyn earlier this week and one eight-year-old girl chose to

go as none other than the notorious rbg the notorious rbg time to get in shape like a Supreme Court justice people. She, I think, made it her project to call the court out when she thought it needed to be called out in very direct language that people could understand. So in honor of Ruth Bader Ginsburg's birthday, we're going to make wine charms for each of her callers or shabos. of her callers or shabos. And that's what propelled the kind of public notice that for the great bulk of her life she had not received. And when people ask,

what do you have in common with the notorious B.I.G.? I said, we have one thing, and that is we were both born and bred in Brooklyn, New York. You also both love words. He's a rapper. You love words. Linda, what was the last interaction that you had with Justice Ginsburg? It was this summer. It was after she had announced that her cancer had returned. Somebody from Washington sent me by email an image of a yard sign that someone in the Adams Morgan neighborhood of Northwest DC had put up on their lawn. And it said, RBG works about five miles from here. So take care of her by wearing your mask. And I thought this was really very sweet. And Justice Ginsburg did not use email.

One could not email her. You could do it through her assistant, but she herself didn't get on email. So I mailed it to her. I knew her address. And I printed this out on a color printer. And I mailed it to her just saying, you know, you might get a kick out of this. And I just wish you the best in this tough time. And I never expected to get a response,

but I did. She sent me the nicest note. And then she told me that her two adult children, Jane and James were living with her in her apartment. And that I get a chill telling this story because it really alarmed me. Why? Because, you know, we, we all know enough about, you know, illness and death to realize that if somebody's adult children, neither of whom lived in Washington, pick themselves up and move in with you, you're really sick. The outlook is not good. I had a very vivid dream that she had died.

And which I was crying and everybody I knew was crying. I even, I told my husband as a witness, when I woke up that morning, I said, you know, I had this dream that Ruth Ginsburg had died. And so when the word came Friday night, I just had this deja vu feeling. It was just the oddest feeling. Like, didn't this happen? Linda, from everything that you have told us, I'm curious, in the couple of days since Ruth Bader Ginsburg's death,

how are you thinking about her life and about her legacy? Yeah, I think when you look back at the whole arc of her life and work, there's really no single person who's accomplished what she has for women, for men too, in the notion of equality, that has been now so baked into our legal structure that the differences really come in playing out what the central principles that she stood for and that she got the court to accept over the years really mean the essential equality of the sexes. And that's not going to be taken away.

That's her legacy. She left us in a good place. Linda, thank you very much. We appreciate it. You're more than welcome, Michael. Whatever you choose to do, leave tracks. And that means don't do just for yourself, because in the end, it's not going to be fully satisfying. yourself because in the end it's not going to be fully satisfying. I think you will want to leave the world a little better for your having lived and there's no satisfaction that a person can gain from just what people call turning over a buck, that's equal to the satisfaction that you get from

knowing that you have made another's life, your community, a little better for your effort. Thank you.