Ask the author: Justice Ginsburg in her own words . . . and then some
on Dec 22, 2016 at 2:03 pm
The following is a series of questions posed by Ronald Collins on the occasion of the publication of “My Own Words” by Ruth Bader Ginsburg with Mary Hartnett and Wendy W. Williams (Simon & Schuster, 2016, pp. 400).
Welcome, Mary and Wendy, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of this remarkable book chock full of information about the life and times of Justice Ruth Bader Ginsburg.
Hartnett & Williams: Thank you so much, Ron, for this opportunity. Like most everyone who follows the Supreme Court closely, we are fans and close followers of SCOTUSblog.
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Question: This may well be the best-presented collection of writings of a Supreme Court justice, selected from both before and after her confirmation. Your introductions to each of the book’s sections are informative, well-researched and nicely complemented by an impressive assortment of photographs. I note that the two of you are credited not as editors but rather as co-authors of sorts.
Tell us about how that arrangement worked. Who selected, organized and edited the materials?
Hartnett & Williams: This was truly a collaborative work. The heart and soul of the book is of course Justice Ginsburg’s writings, drawn from a time period of over seventy years. RBG wrote the first piece in 1946 when she was barely thirteen years old, for her Brooklyn public elementary school newspaper, and the most recent pieces, the book’s Preface and the 2015-2016 Term Highlights, this past summer. After agreeing on a general framework for the book, the three of us went through over two dozen book outlines. Because Justice Ginsburg is such a prolific writer, the hard part was trying to narrow down what we could include in this small volume, and our editor at Simon & Schuster, Alice Mayhew, was a tremendous help in this endeavor. The two of us then wrote biographical introductions to each section, based on our interviews and research for our upcoming biography of Justice Ginsburg.
Picking out the photos was a lot of fun. The walls of Mary’s office at Georgetown Law are papered with photos from every stage of RBG’s life, and one evening when RBG spoke at Georgetown she stopped by and the selection process began.
Question: You mention in your introduction that the justice’s birth name was Joan Ruth Bader. Tell our readers how the name Ruth replaced Joan.
Hartnett & Williams: This is a fun/funny story. When Celia Bader delivered five-year-old Joan to her first day of school at Brooklyn Public Elementary School No. 238, she discovered that her Joan was but one among several Joans in the kindergarten class. Not wanting her daughter to be lost among the Joans, Celia suggested to the teacher that confusion could be avoided by calling her daughter by her middle name, Ruth – and Ruth she became.
Question: As Ginsburg mentions in her preface, “My Own Words” is a companion work to a full-length biography of her that the two of you have been working on. Who is the publisher of that biography and when will it be released?
Hartnett & Williams: Simon & Schuster, the publisher of “My Own Words,” is also the publisher of our forthcoming biography of Justice Ginsburg. The release date for that book has not yet been determined.
Question: In your endnotes you reference some 11 different occasions, between 2000 and 2012, on which the two of you have interviewed Ginsburg. And the justice has long known both of you and has even drawn on your works in her published writings. Tell us a little about your working relationship with the justice over the years.
Hartnett & Williams: We have interviewed Justice Ginsburg each year for the past thirteen years. Although she calls us her authorized and/or official biographers because of the extensive access she has granted to us, the upcoming biography is an independent work and the justice has made it clear she does not expect or want to “clear” it in advance.
We both knew the justice before we undertook these book projects. Wendy and RBG met working in the trenches of the U.S. women’s legal movement in the 1970s, Wendy in San Francisco and RBG in New York. Mary, former director of the Women’s Law and Public Policy Fellowship Program at Georgetown, came to know RBG through her engagement with the Fellowship Program. (By then, Wendy was a Georgetown law professor and RBG a Supreme Court justice.)
Hartnett & Williams: Here, we will draw on some of our material in “My Own Words.”
First, about Robert Cushman:
It was the eminent constitutional scholar and writer on civil liberties, Robert Cushman, who first encouraged Ruth to go to law school. He may also have sowed in her the first seeds of legal activism that characterized her work on behalf of gender equality under law in the 1970s. Professor Cushman supervised her independent studies project and then hired her as his research assistant. The early 1950s were the heyday of the Cold War and Senator Joseph McCarthy’s destructive campaign against those he labeled “card-carrying communists.” Before encountering Professor Cushman, Ruth confessed, “I didn’t want to think about those things; I really just wanted to get good grades and become successful – but he was both a teacher and a consciousness raiser.” Cushman, who assigned her to research McCarthy’s assault on civil liberties, “wanted me to understand two things,” Ruth recalls. “One is that we were betraying our most fundamental values, and, two, that legal skills could help make things better; could help challenge what was going on.”
And about Gerry Gunther:
RBG: “At Columbia Law School, professor of constitutional law and federal courts Gerald Gunther was determined to place me in a federal court clerkship, despite what was then viewed as a grave impediment: on graduation, I was the mother of a four-year-old child. After heroic efforts, Gunther succeeded in that mission.”
At the time, Gunther was a “feeder-professor” to federal judge Edmund Palmieri, who almost always hired the clerks Gunther recommended. When Judge Palmieri balked at the prospect of hiring a woman with a young child, Gunther had two responses. First, he said, in so many words, “Try Ruth Ginsburg. If she doesn’t work out, my next-best candidate, who has accepted a job with a top New York law firm, will resign and be your clerk.” Then, he added, “if you don’t give Ruth Ginsburg a try, please don’t come to me in future years for clerk recommendations.” It will come as no surprise to readers of SCOTUSblog that Ginsburg did indeed “work out” as an able clerk to Judge Palmieri.
RBG: “In later years, litigating cases in or headed to the Supreme Court, I turned to Gunther for aid in dealing with sticky issues, both substantive and procedural. He never failed to help me find the right path.”
Question: I was taken by some of the early writings you included, especially Ginsburg’s June 21, 1946, article from the Bulletin of the East Midwood Jewish Center. In that article, young Ginsburg quoted Rabbi Alfred Bettleheim, who said, “‘Prejudice saves us a painful trouble, the trouble of thinking.’” Ginsburg went on to write, “We are part of a world whose unity has been almost completely shattered.” That is all very impressive for a 13-year-old girl from Brooklyn. How did (does) her Judaism figure into Ginsburg’s life?
Hartnett & Williams: This complicated question is impossible to summarize given our space constraints here. So we offer a few quotes from “My Own Words,” and urge readers to read the cover story about RBG in the just published December issue of Hadassah.
From “My Own Words”:
Although Ruth’s immediate family was not devoutly religious, Jewish traditions were very much a part of her childhood. Her mother, Celia, lit candles every Friday night, and at Hanukkah all the grandchildren gathered to receive one silver dollar each as Hanukkah “gelt” from their grandfather. Ruth and her parents regularly joined the annual gathering of aunts and uncles and cousins for the Seders held by her paternal grandparents on the first and second nights of Passover. Her fondest memories were those Seders when she got to ask the traditional Seder questions, beginning with ‘Why is this night different from all other nights?” “That,” Ruth later remembered, “was always the best part of the Seder for me, that the youngest child, which I was for a time, got to ask the questions and then the whole rest of the evening was providing answers.” (This may have been the first sign of Ruth’s future role as one of the most active and precise questioners on the United States Supreme Court Bench.)
From childhood onward, Ruth especially valued the reverence for justice and learning that was part of her Jewish heritage. She enjoyed studying Hebrew and the history of the Jews, and was especially moved by the life of Deborah, the general, judge, and prophet, as recounted in Judges 4-5 and in the Song of Deborah. But from a young age, Ruth also resented what she saw as sometimes rigid adherence to seemingly hypocritical rules and the inferior role assigned to women.
One last word from us for now on the subject of the justice and Judaism. Visitors to RBG’s chambers will find in several prominent places framed versions of this Hebrew directive, which she treasures and does her utmost to follow: “Zedek, Zedek, tirdof” – “Justice, Justice, shalt thou pursue.”
Question: In your introduction to a section of the book that centers on the late Justice Antonin Scalia, you include this touching description of Ginsburg by Scalia: “She is a really nice person. I’ll tell you, [this] shows you how tenderhearted [she is:] when we were in India together, we went to Agra to see the Taj Mahal and there is a doorway where you first get sight of it, you know the story of it, this guy built it for his deceased wife. She stood there, when we got there, in that doorway – tears were running down her cheek. That emotional. I mean, I was amazed.”
I thought of that when I read about how Ruth Bader met Martin Ginsburg on a blind date in the fall of 1950, and then they married in June of 1954. “Marty,” Ruth’s “beloved husband and ‘life partner,’” died in June of 2010. I gather he was a central figure in her life. Can you explain what made him so important to her?
Hartnett & Williams: Let’s start with RBG’s book dedication: “To Marty, dear partner in life and constant uplifter.” Again, in Ruth’s “Own Words”: “Marty always made me feel I was better than I thought I was, that I could accomplish whatever I sought. He had enormous confidence in my ability, more than I had in myself.”
Also from the book: Marty was an unusual man for the 1950s: not only was he not threatened by Ruth’s intelligence, but he actively encouraged and took pride in her academic and professional pursuits. And from RBG’s Preface to “My Own Words”: “I have had more than a little bit of luck in life, but nothing equals in magnitude my marriage to Martin D. Ginsburg. I do not have words adequate to describe my super-smart, exuberant, ever-loving spouse. He speaks for himself in two selections chosen for this book. Read them and you will see what a special fellow he was. Early on in our marriage, it became clear to him that cooking was not my strong suit. To the everlasting appreciation of our food-loving children Marty made the kitchen his domain. Marty coached me through the birth of our son, he was the first reader and critic of articles, speeches, and briefs I have drafted, and he was at my side constantly, in and out of the hospital, during two long bouts with cancer. And I betray no secret in reporting that, without him, I would not have gained a seat on the U.S. Supreme Court.”
Question: Ginsburg attended Harvard Law School (1956-58) but then went to Columbia Law School (1958-59), from which she graduated. Why the move?
Hartnett & Williams: During Marty Ginsburg’s last year in law school, he was diagnosed with and treated for a virulent form of testicular cancer, almost always fatal in those days. When Marty graduated in 1958, Ruth still had her last year of law school before her. Marty accepted his only job offer, from the law firm in New York where he had clerked before his cancer diagnosis, and faced with an uncertain future, Marty, Ruth and three-year-old Jane moved home to New York, where Ruth finished law school at Columbia.
Question: In his essay “Reflections on the Confirmation Journey of Ruth Bader Ginsburg, Summer 1993,” Chief Judge Robert Katzmann of the U.S. Court of Appeals for the 2nd Circuit stated that before he came to the bench he “was with Ruth Bader Ginsburg from the time of her nomination through the confirmation process, accompanying her on her visits with senators. . . . In the period of mid-June to mid-July 1993, the White House team … oversaw confirmation strategy. [A]s a part of the preparation process, the White House arranged for substantive briefings and mock questioning. … I had the sense, as I am sure the briefers did as well, that the nominee knew more than anyone in the room about the subjects at hand.” What do you think concerned Ginsburg most as she prepared for the Senate hearings?
Hartnett & Williams: The confirmation process is, of course, a subject we will explore at greater length in the biography. But one thing that stands out is that many of the White House briefers were quite concerned that Justice Ginsburg’s work at the ACLU on behalf of gender equality could create problems for her confirmation. RBG, on the other hand, was very clear that this work was part and parcel of who she was. She was happy to, and did, provide any and all information about this work, but from the beginning she was steadfast that she would not and could not distance herself from the legal project about which she cared most deeply. And despite her briefers’ concerns, there were no hostile questions during the confirmation hearings about RBG’s accomplishments with the ACLU, and she was confirmed by a vote of 96-3.
Question: Your book refers to a case Ginsburg said was “argued before the Court in the mid-1970s” in which the “initial vote was 5-4 against [her] position” but “after several post-conference exchanges among the Justices, and a few switches, the position [she] advocated prevailed.” Was that Califano v. Goldfarb, or some other case?
Hartnett & Williams: Good sleuthing, Ron! Califano v. Goldfarb it was. The case, argued in October of 1976 and decided five months later, was important because it tested one of Ginsburg’s most significant insights, namely, that Social Security laws – indeed, all or almost all laws – which treated husbands and wives differently based on assumptions about their different roles in life were harmful to both sexes and therefore, whether the plaintiff was male or female, should receive heightened scrutiny by the justices.
The case involved sections of the Social Security Act that provided benefits to both widows and widowers of wage-earning spouses who had paid into Social Security during their working lives – but it provided those benefits on very different terms. Under that federal law, widows were assumed to have been dependent on husbands and thus eligible for spousal benefits, while widowers like Mr. Goldfarb had to meet a stringent dependency test to qualify for benefits. The oral argument revealed a deeply split bench, with some Justices viewing the law as justified because it was intended to benefit women, who were more likely to be dependent on husbands than men were on wives, rather than to discriminate against men.
Ginsburg pointed out that in fact the Congressional beneficence bestowed upon women may have helped those women who were actually dependent, but it hurt those women whose workforce contribution to Social Security delivered fewer benefits to their families than would that of an identically situated male wage earner – and, as a consequence, to the detriment of male spouses like Mr. Goldberg. The solution, she argued, was to base such laws not upon a spouse’s sex but upon the function he or she actually performed. Thus, if a family, by choice or circumstance, had a female breadwinner and a male homemaker, that family would be treated, for benefits purposes, just like a family with a male breadwinner and a female homemaker (or, today, a male breadwinner and male homemaker or female breadwinner and female homemaker).
In the end, four justices, in an opinion by Justice Brennan, endorsed RBG’s position that the statute was indeed, as she labeled it, a “double edged sword,” discriminating against both a deceased wage-earning woman such as Mrs. Goldfarb and against Mr. Goldfarb, who, but for his male sex, would be entitled to benefits earned by his wage-earner wife. One additional justice, Justice John Paul Stevens, disagreed with the Court’s adoption of Ginsburg’s double-edged sword rationale, saying that it was enough that Mr. Goldfarb was discriminated against on the basis of sex without apparent justification. “It is fair to infer,” he wrote, “that habit, rather than analysis or actual reflection, made it seem acceptable to equate the terms ‘widow’ and ‘dependent surviving spouse.’” Stevens’ concurring vote meant that five justices agreed on the bottom line: The statute was unconstitutional, and Ginsburg, who left the oral argument fearing that Goldberg’s case was a lost cause, once again prevailed.
Supreme Court buffs who yearn to learn more about the behind-the-scenes ins and outs of the Goldfarb case are encouraged to check out the papers of Justices Harry Blackmun and Thurgood Marshall, housed at the Library of Congress and open to the public.
Question: Ginsburg argued six cases before the Supreme Court. What were her greatest skills as an appellate lawyer?
Hartnett & Williams: RBG argued six cases (losing just one). Oral argument, she has said, is “an occasion not for grand speechmaking, but for a conversation about the case, a dialogue or discussion between knowledgeable counsel and judges who have done their homework.” She proceeded accordingly. Thoroughly prepared and armed with notes in her own personal shorthand, she stood before the court and spoke, as she always does, in measured and deliberate sentences, free of oratorical excess and always with an eye on her main message.
Yet the briefs that lawyers write for the Supreme Court are more important than oral argument to the court’s understanding and resolution of its cases, as Ginsburg understood, and brief-writing was, we think, the greatest of her considerable skills as an appellate lawyer. Not only did she brief the ACLU’s nine sex discrimination cases, but, with her ACLU Women’s Rights Project team, filed 16 amicus briefs, making the case for gender equality in most of the significant gender cases litigated by others in the 1970s. In the succession of briefs, she presented a comprehensive legal theory about the nature of the inequalities and indignities produced by the law’s “gender-role pigeon-holing” of women and men into separate categories, and about the appropriate remedies for such role assignments.
Her striking ability to marshal gender history, current social circumstances, telling statistics, and tightly reasoned argument on behalf of her clients’ claim to equality not only moved the court but served as a model for her younger legal colleagues around the country. In her decade as a litigator on behalf of gender equality, she, more than any other lawyer, shaped and deepened the court’s understanding of the inequality of the sexes and prompted it to approach sex-lines with an unprecedented skepticism. (See Part III of “My Own Words” for a representative sample of RBG’s words on gender equality under law.)
Question: In your book, Ginsburg comments on “graveyard dissents,” meaning dissents that were written but then “buried by [their] author.” We are told that some of her “favorite separate writings remain unpublished.”
(1) Can you share with us the names of a few cases in which Ginsburg penned a “graveyard dissent”? (2) Has any thought been given to publishing any of her “graveyard dissents”?
Hartnett & Williams: Graveyard dissents are the Supreme Court’s equivalent of state secrets, so we will have to leave that question unanswered, at least for the foreseeable future.
Question: At oral argument the day after the 2016 presidential election, Ginsburg wore a black and gold collar, also known as her “dissent jabot,” which she has said she reserves for days when she is reading one of her dissenting opinions from the bench. What do you make of that?
Hartnett & Williams: No comment!
Question: In the conclusion to your book, you discuss Ginsburg’s various statements about when she might retire from the court: (i) “she wanted to match the record of Justice Brandeis” (23 years on the bench, a mark she attained this year), (ii) “she would not leave the Court until the National Gallery returned the Josef Albers painting it had borrowed from her to take on tour” (it has been returned), and (iii) she has said that the test “‘has to be, am I equipped to do the job’” and that she will stay on “‘as long as I can do the job full steam.’” The justice was born in 1933, which means she will be 87 by the time Donald Trump completes his first term in office.
Against that backdrop, I was reminded of a Los Angeles Times op-ed Erwin Chemerinsky, dean of the School of Law at the University of California, Irvine, wrote in 2014. In it he argued that “Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.”
Was Dean Chemerinsky right? What is your view of the matter?
Hartnett & Williams: If one believes, as we do, that Ginsburg’s voice is uniquely important in these times, her resignation would have been a risky proposition. Even in 2014, the chances that a replacement who shared her views and values could have been confirmed were dubious indeed, in a Senate whose minority members were committed to thwarting President Barack Obama’s initiatives. To have any chance of confirmation, a potential replacement would have had to be acceptable to both sides, requiring a candidate of quite different values and commitments than Justice Ginsburg’s. But who knows for sure?