Ruth Bader Ginsburg Interview 3

76
Oral History of Justice Ruth Bader Ginsburg
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Dr. Maeva Marcus, and the
interviewee is Justice Ruth Bader Ginsburg. The interview took place in Justice Ginsburg’s
Supreme Court Chambers on August 8, 1996. This is the third interview.
Dr. Marcus: You were in Barcelona for a month?
Justice Ginsburg: We were there for two weeks and then in Madrid, staying with our
Ambassador, my Columbia Law School teaching colleague Dick Gardner.
Dr. Marcus: I was in Madrid three years ago. I loved it. Did you like it?
Justice Ginsburg: I liked it very much, but I had just come from Barcelona.
Dr. Marcus: That’s a very different city. Did people speak mostly Catalan in
Barcelona?
Justice Ginsburg: Yes. Yes, with zest now, because all during the Franco years they were
prohibited from speaking Catalan.
Dr. Marcus: I always liked being in Spain because it was one language I could speak,
Spanish. Now to go back to Barcelona, I know they understand it, but
they are really trying to bring Catalan back as their national language, and
they don’t like not speaking it, I think. I’ll still go back. It’s supposed to
be beautiful.
Justice Ginsburg: I love Catalunya. I love the people, the spirit, and Gaudi is fabulous.
Dr. Marcus: The architecture, I know. Well, I may get there next year. I’d love to be
able to teach in some program, too, but they never teach legal history at
any of these programs.
Justice Ginsburg: I think that makes all the difference. I don’t know if I would have loved it77
quite as much if I weren’t with such interesting colleagues who were
taking us here and there.
Dr. Marcus: Yes. I think that makes a big difference. If I don’t get invited to teach, I
can’t do anything about it.
Well, it’s been almost exactly a year since the last oral history
interview, to the week if not the day, and we ended just as you were about
to go to teach at Rutgers. So I thought we would begin with your time
there and start off with a question about what influenced you to become a
law professor rather than a practitioner.
Justice Ginsburg: I meant to become a practitioner first. Do you know the story of how I got
to Rutgers?
Dr. Marcus: A little bit. You had said that your name appeared on some list. You had
gone to speak to –
Justice Ginsburg: I had gone to Harvard for two years and Columbia for my last year.
Sometime in 1962, I received a questionnaire from Harvard asking: “Are
you interested in teaching? If you are, fill this out.” I filled it out, thought
nothing more of it, and then Walter Gellhorn called me into his office at
Columbia. He was informally in charge of placement for nearly all the
law schools in the country. He was then president of the AALS, or about
to become president. And he ran a one-person placement office. Walter
asked, “Ruth, what is your name doing on a Harvard list when you’re a
Columbia graduate?” I didn’t know what list he was talking about. He
said, “It’s the teaching list.” I asked, hopefully, “Oh, is Columbia78
interested in me?” He answered, “Not Columbia, but Rutgers.” Rutgers’
interest was sparked by Clyde Ferguson’s departure from Rutgers to
become the Dean of Howard Law School. Rutgers was an avant garde
school. I believe the faculty wanted to replace Clyde with another black
man, but was unsuccessful in doing that. The next best thing was a
woman, so I received the offer. I thought, “If I don’t accept a teaching bid
now, will I ever have another opportunity?” In those days, I think
something like a dozen women, not many more, were teaching on law
faculties across the country.
Dr. Marcus: Were there any other women at Rutgers?
Justice Ginsburg: There was Eva Hanks, then Eva Moreale. She started teaching at Rutgers
one year before I did. Eva taught property. She had been an instructor at
Columbia while in the post-graduate program there. I was Rutgers’
second woman. You’ll notice that I was the second woman at many
important turns in my life. On the D.C. Circuit, Pat Wald was first; I was
second. Here, Justice O’Connor was first, then me.
Dr. Marcus: Did you feel that women were welcome on the Rutgers faculty?
Justice Ginsburg: In one way, yes. As I said, Rutgers was pleased with its reputation for
being out in front of the pack. On the other hand, I took a substantial drop
in the salary I had been receiving as a research associate at Columbia. The
Dean at Rutgers, a very good dean, said to me (the year was 1963): “Ruth,
you know we’re a state university and have budget problems; we won’t be
able to give you more than . . . .” It was a rather small sum.79
So I asked, “What about So-and-so?” What is his salary? The
Dean answered: “Oh, he is married and has children to support.” And I
returned, “Well, what about So-and-so?,” a colleague who was a bachelor.
The Dean next said, “Ruth, your husband has such a good job.” He
was a caring, sincere dean. Yet he thought there was absolutely nothing
wrong about paying me less. The Equal Pay Act had passed that very
same year, but that’s the way it was.
Dr. Marcus: I know exactly what you’re saying. To this day I continue to be a victim
of statements of that kind. So it’s still there. When you went to Columbia,
were there other women on the faculty at Columbia?
Justice Ginsburg: There was no tenured woman. I was the first tenured woman at Columbia.
Harriet Rabb started working at Columbia the year before. She was
running the Employment Discrimination Project together with George
Cooper.
Dr. Marcus: Do you think the atmosphere was at all different between Rutgers and
Columbia in terms of welcoming women?
Justice Ginsburg: Columbia was somewhat under the gun. 1972 was the year of affirmative
action. Stan Pottinger was then head of the Civil Rights Office at HEW
[Department of Health, Education, and Welfare]. His message to schools
with government contracts was: “Shape up. You have no minorities. You
have no women. Your contract may not be renewed if you don’t do
better.” So at that point Columbia was eager to have a woman on its
faculty. No law school other than Rutgers was interested in me until 1972.80
It was no accident that I had a bouquet of offers that year. I owe it all to
President Nixon’s affirmative action program.
Dr. Marcus: Isn’t that amazing?
Justice Ginsburg: Yes.
Dr. Marcus: That really is. Well, when you got to Rutgers, how did you choose which
subject you were going to teach?
Justice Ginsburg: I didn’t choose. I taught procedure because that was Clyde Ferguson’s
teaching field, and there was only one other person at Rutgers then
teaching procedure. We divided the first year class in half. I had half the
class, he had the other half. I also taught a comparative procedure seminar
for which I never considered myself qualified. But because I had studied
and written about civil procedure in Sweden, I was asked to teach that
course. Eventually I picked up conflict of laws, which I loved.
Dr. Marcus: Did you ever teach Federal Courts –
Justice Ginsburg: Yes, that was the third area I taught at Rutgers, those three.
Dr. Marcus: And did you ever do administrative law?
Justice Ginsburg: No. It was my least favorite subject at law school, and I was at first
concerned how I would deal with all those dense administrative law cases
the D.C. Circuit has. I soon learned that it’s a fascinating subject. If I had
appreciated how stimulating it is, I would have taken it more seriously
earlier.
Dr. Marcus: Did you ever do any criminal law procedure or constitutional law when
you taught?81
Justice Ginsburg: I started learning constitutional law when I became a civil rights litigator.
The best way to learn a new subject, is to teach it, so I began to teach
constitutional law at Columbia. I was studying constitutional law at
Rutgers and began teaching it at Columbia.
Dr. Marcus: When exactly did you become interested in gender discrimination? \
[Recording interrupted]
I had just asked you when did you become interested in gender
discrimination.
Justice Ginsburg: It wasn’t one single moment in time. It was a gradual awakening. There
was something in the back of my conscious from my growing up years,
but I thought about it in earnest for the first time when I was in Sweden.
Sweden was quite a way ahead of the United States in the early sixties in
opening opportunities to women.
Two memorable things happened during my stay in Sweden. One
concerned a writer, Eva Moberg. She wrote a column in the Stockholm
daily paper headed: “Why Should a Woman Have Two Jobs and a Man
Only One?” Her point was that it was by then well accepted, even
encouraged, for the woman to work. But at the same time, she was
expected to buy the children new shoes, take them for their medical check-
ups, put dinner on the table at 7:00, etc. Eva Moberg’s view was a big
topic of conversation in 1962. Women were divided between Queen Bee
types who said: “I can do everything and I don’t want him to help, it would
reflect adversely on my competence if he did help”; and others who would82
say: “Why should I do everything at home? He should do more than take
out the trash.”
The other event was Sherry Finkbine’s arrival in Sweden to have
an abortion. She had taken thalidomide. She was from Arizona and
couldn’t get an abortion in her home state in the United States. She had
come to Sweden, a place where she could get a safe abortion at a clean,
well-run clinic.
Along with those two happenings, there was Simone de Beauvoir’s
book, which I read about that time, The Second Sex. That work made a
tremendous impression on me. Yet there seemed nothing one could do to
advance change in the early sixties.
In the late sixties, two things coincided. One, my Rutgers’
students wanted a course in Women and the Law. The other, the New
Jersey affiliate of the ACLU began to get complaints about sex
discrimination. I was working in the field of procedure, so I knew
something about courts. The executive director of ACLU’s New Jersey
affiliate began to refer the new complaints to me. Many of the
complainants were pregnant women placed on what was then
euphemistically called “maternity leave.” Most of these complaints came
from schoolteachers, but there were some women in other occupations as
well. There was also the common insurance problem women had.
Companies in those days would allow a woman to receive health
insurance for herself only, unless she were widowed or divorced. But a83
married, unwidowed woman could get coverage only for herself, not for
her family. So there were women who worked at places that had better
medical packages than their husbands’ places. They wanted to get the
family coverage. They couldn’t. Those were typical of the cases that
emerged as we approached the 1970s.
Dr. Marcus: And you did the legal work for those cases. Did you argue any of those
orally?
Justice Ginsburg: Well, yes. The constitutional cases also started while I was at Rutgers.
The first one was Reed v. Reed. The ACLU was not involved in that case
until the Idaho Supreme Court announced its decision. Marvin Karpatkin,
then a General Counsel to the ACLU and an exceptionally fine lawyer,
spotted the Idaho Supreme Court’s decision in Law Week. He said: “Reed
could be the turning-point case.” I approached Mel Wulf, then legal
director of the ACLU’s National Office, and said: “Mel, I’d like to write
the Supreme Court brief in Reed.” Mel replied: “We will write the brief,”
and so we did. But Reed was argued in the Supreme Court by Sally
Reed’s Boise, Idaho, attorney. So the first case I argued before the Court
was Frontiero v. Richardson. The first case I took from the ground floor,
from the district court up to the Supreme Court, was Stephen Wiesenfeld’s
case.
Dr. Marcus: We’re going to get into all those cases in a little bit more depth. I knew
you were interested in gender discrimination, but I wondered if you had
been actively recruited to the cause, to do the legal work for the ACLU, or84
whether you had volunteered because you were concerned from your own
personal experiences.
Justice Ginsburg: It started with boosts from outside, both from my students and from sex
discrimination complaints made initially to the New Jersey affiliate of the
ACLU. Then things changed. Instead of being reactive, I began to
become, one might say, a more propelling person.
Dr. Marcus: Do people ever ask you this? I will ask you this for the record. Do you
consider yourself a militant feminist?
Justice Ginsburg: I consider myself a feminist, but anyone who genuinely cares about people
has got to be a feminist. “Feminist” simply means believing that women
should have a fair chance in the world to do whatever their talent enables
them to do. I can’t imagine any parent of a child not being a feminist. The
problem is that the term has gotten an association that isn’t right.
Feminism simply means believing that women are persons equal in stature
to men, humans who deserve an equally fair chance to make their way in
the world. So if we accept that as the definition, yes, I am a militant
feminist.
Dr. Marcus: You mentioned Simone de Beauvoir as being an influence on you. Can
you think of any other books or any women in particular, or men, who
influenced you on your views on feminism?
Justice Ginsburg: I read a lot at the time, but the only non-legal book was de Beauvoir. I
started Betty Friedan’s book any number of times but never finished it
because she was writing about a life I had never had, the life of the85
suburban woman who finds herself bored and useless and not respected.
What I did read were all the cases and all the law review articles
ever written about women’s status under the law. I came to admire people
like Dorothy Kenyon, a volunteer lawyer for the ACLU, whose mission
was to have women serve on juries. In the generation before mine, most
states didn’t put women on juries. The brave women working in the law
were inspirational. For example, a woman named Blanche Crozier had
written an article in the Boston University Law Review that was an eye
opener. Crozier said back in the thirties and forties the very same things
women were saying in the seventies.
Dr. Marcus: And was she just a practitioner or on a faculty, do you know?
Justice Ginsburg: She was not on a faculty, but she was a great feminist. And then my
favorites of all, the Grimke sisters from South Carolina, feminists and
anti-slavery advocates in the mid-1800s.
Dr. Marcus: Do you think that teaching is good preparation for the bench?
Justice Ginsburg: Carl McGowan, who may be the finest jurist with whom I have served,
said that law teaching and judging are more alike than any two other ways
of working in the law – law teaching and appellate judging, because
district court (trial court) judging is quite different from appellate court
judging. Appellate court judging is very much like teaching. Oral
argument resembles discussion in law school classes. The writing of
opinions, trying to persuade other people to your point of view, and the
routine of your life – occasional appearances before the public, but most86
of one’s time spent alone in one’s office, reading, thinking, and writing.
So there’s much in common between teaching and appellate judging.
The transition for me from law teaching to appellate judging was
easy if you compare that to the kind of life, say Ab Mikva had as a
congressman, a very busy, outgoing life with an appointment here and a
dinner there – always doing something. But law teaching is like appellate
judging in the isolation of the job, the amount of time you spend with
yourself and your small staff.
Dr. Marcus: Looking back at your experiences at both Rutgers and Columbia, do you
see any great differences in what you did and the kinds of students that
went to the school and the way that law was taught to them?
Justice Ginsburg: There were more people at the top in Columbia, as you would expect, but
there were always some excellent people at Rutgers, people who didn’t
have enough faith in themselves to incur the debt they would have to incur
to go to a private school like Columbia. There were more people at the
bottom at Rutgers, too. There was a security among my faculty colleagues
at Columbia that was lacking at Rutgers. Some of my Rutgers’ colleagues
were insecure about their status. There were petty jealousies. At
Columbia, most of my colleagues were stuck on themselves, and they
thought that anybody associated with them had to be pretty damned good.
So far from worrying whether this one or that one was going to be on my
side, at Columbia it was just the other way. Although I was doing things
many of my colleagues disagreed with, they thought it was right and87
proper that I do them, and that I do them well. They were good people to
argue with. At Rutgers, where I strived to get tenure, I was very careful
not to associate myself with any of the rival factions. I just did my own
thing. But at Columbia there was no factionalism.
Dr. Marcus: Do you remember any of your colleagues especially well as far as having
influenced your view of any particular field of the law?
Justice Ginsburg: At Rutgers?
Dr. Marcus: At Rutgers or Columbia.
Justice Ginsburg: My inspiration as a teacher of procedure was Ben Kaplan, my teacher at
Harvard. I remained in touch with him over the years. When I began
teaching conflict of laws, I was influenced by Willis Reese, who was my
teacher at Columbia and an outstanding classroom performer. He and I
didn’t think exactly alike about that subject. The person whose views were
most compatible with mine, who most influenced my views on conflicts,
was Herma Hill Kay. She was teaching on the West Coast at Boalt Hall
(Berkeley), and is now Dean of that law school. We became good friends
doing women’s work together in the 1970s.
Dr. Marcus: Did you do a casebook with her or some other kind of textbook with her?
Justice Ginsburg: Yes.
Dr. Marcus: And she was on the West Coast at the time that you did it?
Justice Ginsburg: Yes. She’s always been at Boalt, where she’s now a great dean.
Dr. Marcus: So how did you work this?
Justice Ginsburg: Mail, telephone, and we were occasionally together at one place or the88
other.
Dr. Marcus: It must have been much more difficult than it is today, with fax machines
and E-mails and all of that kind of thing. What gave you the idea to do a
casebook together?
Justice Ginsburg: Herma had the idea, and she was already teamed up with a young man
who was then on the Buffalo faculty, Kenneth Davidson. She asked me at
a conference at Yale on Women and the Law – it must have been, oh,
1970 or 1971 – if I would join them in this effort and do the constitutional
law part, which I did. We published the casebook in 1973 or 1974.
Dr. Marcus: And I noticed you also did a supplement, so you kept up with it.
Justice Ginsburg: Yes, until 1980. Herma kept it up all on her own once I was appointed to
the bench. After our first edition, she did a second and a third edition
alone, and now she’s doing a fourth edition with another law teacher.
Dr. Marcus: And did you find putting together that material very helpful to what you
were doing?
Justice Ginsburg: Yes. Everything worked together, the casebook, the class, the litigation.
Dr. Marcus: In the years that you were teaching and also doing the litigation, were
there other kinds of activities that you participated in, like the bar
association or politics or something?
Justice Ginsburg: Bar associations, yes, the City Bar (Association of the Bar of the City of
New York) and the ABA. I thought it important for women to try to
become active in the bar associations, not just women’s bar associations.
Women’s bar associations were a needed operation, but there’s nothing that89
men opposed to, or uncomfortable with, women’s advancement would
have liked more than for women to stay put in women’s bar associations
only and not intrude where great decisions were being made. So I was
active in the City Bar and eventually served on its executive committee.
In the ABA, let’s see – my first major activity with the ABA was
on the ABA Journal Board. I think it was in 1972 that I became a member
and stayed for however long one can stay, until the end of ‘78.
Dr. Marcus: Have you kept up your activity with those bar associations?
Justice Ginsburg: The only affiliation I have now, apart from being a member of the City
Bar and the D.C. Bar, is with the American Bar Foundation. Eventually, I
became a member of the board of the Foundation and then an officer, and
now I still keep in touch with what the Foundation is doing. I think they’re
doing some of the really quality legal research these days. So of all my
activities with the ABA, and that includes the Section on Individual Rights
and Responsibilities – I was on that council for a while – the Foundation is
the one that impressed me most.
Dr. Marcus: I notice that you also participated in a number of Second Circuit Judicial
Conference activities.
Justice Ginsburg: I was on the committee that organized the Second Circuit Judicial
Conferences and also on a committee that was looking at all the courts in
the Second Circuit, at least all the courts in the New York area, to try to
make them more welcoming to the public. We considered everything
from the physical facilities at Foley Square to the way jurors were treated.90
And then I was an officer of an organization called the Federal Bar
Council. It’s a group of lawyers that supports the courts of the Second
Circuit.
Dr. Marcus: Did your view or your activities on the Second Circuit help you in any
way when you became a judge on the D.C. Circuit?
Justice Ginsburg: Apart from knowing something about how the courts operated? The two
circuits are quite different in character, as you know. The Second Circuit
was thought of as the prominent court in commercial matters and private
anti-trust and securities cases. The D.C. Circuit is heavily into
administrative law.
Dr. Marcus: Did it at least color your views of judicial conferences, having planned
several?
Justice Ginsburg: Disappointing to me when I came to the D.C. Circuit was the fact that the
judges ran those conferences. I was the chair of a D.C. Circuit judicial
conference in the early eighties, and I worked hard on that venture. In the
end it was very satisfying. But the Second Circuit, to this day, gives the
conference-planning job to a committee of lawyers and judges, and the
lawyers do nearly all the work for the conferences.
Dr. Marcus: Do you see any difference in the quality of the programs?
Justice Ginsburg: Well, that would be hard to say. Some judges work at the programs harder
than other judges, so some years the D.C. Circuit conference is very
stimulating and other years it’s less stimulating. I think that the quality of
the Second Circuit conferences is always at least good.91
Dr. Marcus: Do you have a view on the value of those conferences? Because I know
there’s been discussion because of the cost of the conferences, of
eliminating them.
Justice Ginsburg: And I can understand the interest in reducing the cost. But I think there is
tremendous value in gathering judges and lawyers together some place
removed from the city, where they can have stimulating programs, discuss
problems, and get to know each other at close range. Even the sports
activities contribute to the rapport. The judges sit on high and the lawyers
say, “Your Honor,” but when they’re playing together in a tennis game, for
example, there’s a kind of camaraderie that should be encouraged, a sense
of togetherness you don’t get unless you have these kinds of meetings. It
can’t be achieved in a one-afternoon symposium.
Dr. Marcus: I’m just curious now. Obviously, the Supreme Court doesn’t participate in
a conference like that. I know each of you has a circuit that you can
attend, I mean, in terms of your own bar here and everything. Do you feel
that that’s difficult, that there should be more contact, or do you think that
the justices should be isolated?
Justice Ginsburg: But I do have contact with the D.C. Bar. There was a dinner in honor of
the officers, past and present, who had worked hardest for the D.C. Bar,
that I sponsored at the Court this spring, and I gave a little talk to them. I
joined members of the City Bar in New York when they had the hundredth
anniversary of the bar building. I spoke on that occasion at a
commemoration held in Lincoln Center. I’ve been to the City Bar for a92
few functions during the three years I’ve served at the Supreme Court. It’s
an individual thing. The justices don’t attend judicial conferences as a
court, but I’ve attended circuit conferences other than my own. I’ve been
to the Ninth Circuit. I was the Tenth Circuit’s justice my first year at the
Court.
Justice Stevens, at the recent ABA annual meeting in Orlando gave
one of the principal talks. The year before, at the ABA’s midwinter
meeting, I gave a talk at the Joint ABF Fellows-State Bar Presidents’
lunch. So I maintain connections with professional groups. I probably
speak to more lawyers’ groups, have more bar affiliations as a judge,
generally not as a member, not as an active member of the bar group, but
as a participant in programs.
For example, let’s think of upcoming engagements. The Council
on Court Excellence is having a program at the Kennedy Center this fall.
Ken Starr asked me if I would be part of it, and I said yes. I’m speaking
next summer at the annual meeting of the Oklahoma Bar Association.
Many invitations have come to me from Oklahoma, including one to help
celebrate the twentieth anniversary of the Court’s decision in Craig v.
Boren. So I don’t think that my affiliation with the bar has decreased.
Dr. Marcus: That’s good. I also notice that you were active in the American Law
Institute (ALI). What did you do there?
Justice Ginsburg: Well, again, I was fortunate to be born at the right time. The ALI for
years and years had no women on its council. Then Shirley Hufstedler93
was named to the council. She was the first and only woman for a long,
long time. In the late seventies the ALI invited Pat Wald and me to
become members of the council at the same time.
Before going on the council, I had been an advisor to the
Restatement of Judgments. It was a wonderful experience. It started out
with Ben Kaplan and David Shapiro as the reporters. Eventually Geoffrey
Hazard finished the work. Much more recently, I was an advisor to Arthur
Miller’s Complex Litigation Project for the ALI.
Dr. Marcus: And these are things that you get invited to do? It’s not a volunteer kind of
thing for the American Law Institute?
Justice Ginsburg: Yes. To become a member of the ALI, you apply and someone already a
member sponsors you, so you must do something affirmative. But I didn’t
do anything at all to be on the ALI council. I didn’t volunteer to be named
an advisor to the Restatement of Judgments. One of the things I regretted,
Ben Kaplan had asked me if I would draft the last part of the Judgments
Restatement as a reporter. I couldn’t because of the competing demands
on my time from the sex discrimination litigation in which I was engaged.
There was just no way I could take on the ALI project.
Dr. Marcus: Were you involved in any other kinds of organizations, like some
connected with your children’s schools or things of that sort?
Justice Ginsburg: I went to the schools and spoke to the students about the law, but both of
our children attended private schools, and I don’t remember being part of
any parents’ association.94
Dr. Marcus: I know your kids are ten years apart. Where did Jane go to college?
Justice Ginsburg: They both went to University of Chicago.
Dr. Marcus: Both of them did?
Justice Ginsburg: Yes.
Dr. Marcus: And then Jane went on to law school.
Justice Ginsburg: She stayed at Chicago to get a master’s in history.
Dr. Marcus: Did she?
Justice Ginsburg: And then – this is a story you’ll appreciate.
Dr. Marcus: Yes. I would like to hear it.
Justice Ginsburg: Jane said: “Mother, if I’m really good, maybe Akron State Teachers
College will hire me.” No offense to Akron. “So I’m going to law school
not because that’s my love. It isn’t. History is. But because I probably
will have a better chance.” And then she had the good fortune to work for
John Gibbons, who was on the Third Circuit and whose great love is
history. So now some of what she does – her specialty is copyright –
combines her two interests. She wrote a wonderful piece called “The Tale
of Two Copyrights.” It’s on the origins of copyright protection in France
and in the U.S. And she wrote another piece you would like. It’s called
“Copyrighting History.”
Dr. Marcus: Oh, I would actually like a copy of it. I mean, that is a very hot topic. We
have a [unclear portion]. Anyway, I’d love to have a copy of that.
I was curious about whether you had any problem getting tenure at
Rutgers.95
Justice Ginsburg: Yes.
Dr. Marcus: You did?
Justice Ginsburg: Sure, I did. Well, my first problem at Rutgers was in what would have
been my third year there. I had a new child. I didn’t tell them when I was
pregnant, because I had a year-to-year contract for my first six years at
Rutgers, and feared if I told them I was pregnant, my contract would not
be renewed. So I went through my second year, the spring of that year,
wearing my mother-in-law’s clothes, one size larger than mine, and came
back in September with one more member of my family.
I think I had a harder time getting tenure because my faculty
colleagues knew I wasn’t movable. The best way to get the attention of a
law school dean is to wave an offer from some other school. But the
Harvard Law Review accepted my tenure piece, and my colleagues found
that impressive. That was in 1969. When my piece appeared in the
Harvard Law Review. I got tenure. Even then, instead of making me
simultaneously a tenured professor and a full professor, I had to wait one
more year to become a full professor. There was no reason, no good
reason for that. So, yes, I did have a hard time.
This contrasts with Columbia. As I said, affirmative action was by
then part of the scene. Columbia didn’t put me through any paces.
Columbia had a welcoming cocktail party and urged me to come.
Dr. Marcus: And did they hire you as a tenured professor at Columbia?
Justice Ginsburg: Yes. That was the only thing I would consider. Having gone through the96
tenure mill once, I wasn’t about to do it again.
Dr. Marcus: What was your tenure piece on?
Justice Ginsburg: It was in the area of conflict of laws. It combined three areas: procedure,
conflict of laws, and constitutional law, and it centered on full faith and
credit.
Dr. Marcus: I have a special interest in that. I think I’m going to stop the tape now to
be sure that we don’t come to the end.
Dr. Marcus: You have to remind me about the copyright, because the new law that
they’re considering, they want to copyright unpublished material, you
know, all the manuscript sources that historians rely on, and we need
experts to help us.
Justice Ginsburg: Jane is on an advisory committee at the Library of Congress.
Dr. Marcus: That’s right. That’s exactly right. I would like to talk to her at some point.
Anyway, we were talking about your tenure piece, which sounded very
interesting. What other publications did you have when you were a law
professor?
Justice Ginsburg: I wrote a few articles about Swedish procedure, and a few about civil
procedure in the United States. One appeared in the Columbia Law
Review, another in the Cornell Law Review, another in the International
Journal of Comparative Law. In the 1960s, I wrote mostly about
procedure.
Dr. Marcus: And that was just because, in the course of teaching, these things came up
and you decided to explore them more fully?97
Justice Ginsburg: Or the article was prompted by an invitation to talk someplace. Most of
what I wrote was a combined lecture/law review article. And then when I
was pregnant with my son, and needed sedentary work, I edited the first in
a series of books about trade regulation in the Common Market.
Dr. Marcus: Isn’t that true of many women. We take jobs that coincide with what our
children are doing at any particular time. You were asked by the ACLU to
take on this Women’s Rights Project?
Justice Ginsburg: Yes. After the Supreme Court decided Reed v. Reed, at the end of 1971,
the ACLU board voted to start a Women’s Rights Project. The ACLU put
$50,000 of the Union’s own money on the line to do that, and asked me if
I would direct the Project. At that point, many people still thought of
women’s rights as some kind of joke. So to show that in my view the
matter was really serious, I said: “I will do this job, and for one year I’ll
spend half my time at Columbia and half my time at the ACLU.” I came
to Columbia in the fall of ’72. For that entire first year I spent half my
time at Columbia, the other half at the ACLU. I made that arrangement to
underscore that what the ACLU was doing was really important. After
that, I became a grandmother to the Project, but for the first year, I was in
the ACLU office almost every day.
Dr. Marcus: And I noticed you had one position called “counsel” and then “general
counsel.” Were these paid positions or pro bono?
Justice Ginsburg: No. General counsel was not a paid position. When I was counsel to the
Women’s Rights Project, just that first year, I was on the ACLU’s payroll.98
I signed on as an employee to show how important I thought the work
was, to indicate that good lawyers should be interested in doing this kind
of thing. After that, I became one of ACLU’s general counsel. That was
also an affirmative action measure. There had been no women as general
counsel before my appointment, if I recall correctly. It is a time-
consuming but unpaid post.
Dr. Marcus: A great time commitment, I would imagine.
Justice Ginsburg: Yes, but I worked with wonderful lawyers. Marvin Karpatkin and
Norman Dorsen served as general counsels at the same time, also Osmond
Frankel, a marvelously wise old man when I met him.
Dr. Marcus: Did you find that the litigation experience that you gained at the ACLU
project helped you as a judge?
Justice Ginsburg: Yes, and to this very day, I’m able to change places with the different
players, with the lawyers. I know what they’re going through, and I’m
conscious of not neglecting a good brief or a good lower court decision,
perhaps to a larger extent than some other judges.
Dr. Marcus: When you got to the ACLU, how did you decide or choose which cases to
litigate?
Justice Ginsburg: We had hoped we would be able to develop a progression of cases in
which there was a clear injustice, so the Court would say: “Yes, that’s
right.” We wanted to build eventually to the point where the Court would
say: “None of these sex lines in the law are rational.” So we looked for
cases with good facts. Reed v. Reed was not a case the ACLU started, but99
it was a good example of the kind of case we sought, cases involving real-
life people, everyday people who probably wouldn’t use the word
“feminist,” but would say, “This isn’t fair,” about what happened to them.
We tried to bring that kind of case.
We came to the Social Security set of cases not with any will to
reform Social Security, but because that area was called to our attention by
Dean Griswold when he was Solicitor General, and in a way that was
unconscious on his part. The ACLU had represented a man named
Charles E. Moritz who complained of sex discrimination in a federal
income tax provision. It’s a long story, but we had hoped to pair his case
with Reed v. Reed. It didn’t work out that way. We prevailed in the Tenth
Circuit, and Dean Griswold, then Solicitor General, petitioned for cert.
The petition said, essentially: “This case itself has no continuing
importance because Congress has changed the law prospectively, but the
Tenth Circuit’s rationale casts a cloud on dozens of federal statutes, and
here they are.” The petition included an appendix of the provisions of the
U.S. Code that differentiated on the basis of sex, a list generated by a
Department of Defense computer. The Department had the entire U.S.
Code on its computer. Computers didn’t exist in ordinary law offices in
those days. That list proved a bonanza for us. We knew all the provisions
of the U.S. Code that differentiated on the basis of sex, and it seemed to us
that the Social Security cases would be good ones to take up. Most of the
cases involved retired people, people seeking retirement or survivor’s100
benefits. Stephen Wiesenfeld’s case then came to our attention, again by
luck. We recognized that Wiesenfeld’s was the case to go first. The
others, including the one the Supreme Court eventually decided, the
Goldfarb case, were filed after Wiesenfeld commenced. We started with
Stephen Wiesenfeld’s case because the facts were appealing. Wiesenfeld
yielded a unanimous judgment, three separate opinions but a unanimous
judgment. Even the Chief said that the distinction involved was irrational,
the now-Chief.
Dr. Marcus: Did you make these decisions on your own, or was it a group of lawyers
who decided?
Justice Ginsburg: I made them with consultation. Many people served the ACLU Women’s
Rights Project, but eventually Susan Ross and Kathleen Peratis came on
board. Susan Ross teaches at Georgetown now, and Kathleen was the best
working companion I had as a lawyer. We were careful in our selection of
cases. I recall one case we turned down involving a woman who had been
given armored-car training in the Army. She wanted to be assigned to an
armored vehicle unit, but there was then litigation pending, a case
challenging the exclusion of women from West Point and Annapolis. The
Army had been moving in the direction of opening more occupational
specialties to women, but it clamped down at that point because it didn’t
want to make things more favorable than they were for the plaintiffs in
that lawsuit. The would-be tank soldier came to us and said: “I was the
best person in the training program, and now they won’t put me in a tank.101
I want to sue.” We said, “You’re too soon. Success in a case like yours is
maybe ten years away.”
Dr. Marcus: Did you make the decision of who would write the brief or the cert
petition, argue the case?
Justice Ginsburg: Yes, but in all of the main cases, I wrote the brief myself with help from
law students and other lawyers in the ACLU.
Dr. Marcus: As you said, you were choosing cases that had good facts. Did you have a
well-thought-out plan as to how you wanted to change Supreme Court
doctrine in this field, sort of building blocks for doing that?
Justice Ginsburg: I wanted the Court to look with suspicion on any distinction based on sex,
because we had just come from a period in which every sex line in the law
was rationalized as a favor to women, as protective of women, and some
of them perhaps were in the beginning. When the early protective labor
legislation came in, the idea was that women and children would go first.
And then, for example, in the textile mill setting, so many women and
children were employed that these protections – safety and health
regulations – it was thought, would spread to all workers. If we started
with women and children, the protections, it was believed, would
eventually spread to all workers.
That’s not what happened. In time there were safety regulations
governing all people. Yet the women-only protections remained in place.
The women-only protective legislation ended up protecting men’s jobs
from women’s competition. For example, women couldn’t work more than102
so many hours, and night work was off limits to them. Consider the
impact on serving tables. The best tips are at night, not in the day. A
worker got time-and-a-half for overtime. Women were protected against
overtime work. They were protected against working in certain
occupations like truck-driving, bartending, mining, jobs that paid more
than the clerical jobs that women could get. So the idea was to question
the assumption that any law that differentiates on the basis of sex is a
favor to a woman, protecting her, not keeping her down.
Dr. Marcus: Did you brief and argue cases in the courts of appeals as well as the
Supreme Court?
Justice Ginsburg: Yes. But we had a fast track in those days. If you were challenging a
state statute in the highest court of the state, if you were challenging it as
unconstitutional, and the court upheld the law, you had a right to Supreme
Court review. And if you were attacking a federal law as unconstitutional,
as we were in these cases, you could get a three-judge district court and go
from there directly to the Supreme Court. Such cases fell within the
Court’s appellate jurisdiction; review was mandatory, not discretionary.
The Social Security cases fell in that category. We didn’t go to the court
of appeals. We went from a three-judge district court directly to the
Supreme Court.
Dr. Marcus: And did you argue before a three-judge district court?
Justice Ginsburg: Yes, and also in a memorable case that followed the normal route. I
represented women who worked for the Canal Zone government or the103
Panama Canal Company. That case was argued in the Fifth Circuit.
Dr. Marcus: Did you find those arguments difficult?
Justice Ginsburg: What was enlightening for my students, or perhaps disillusioning, was the
realization that the identity of the judges mattered a lot. In the Louisiana
jury case, Alvin Rubin was the convening judge. Judge Wisdom was the
circuit judge. One could safely predict how that case would come out. On
the other hand, in the Canal Zone case, once we found out who the judges
were, I had to restyle my argument totally, and my definition of victory
went down at least two notches. I didn’t want to end up being a total loser
and realized that a new trial was the best I could get.But the students — on
the one hand it was disillusioning for them because it seemed like, well,
it’s men, not laws, that control. But on the other hand, the students were
able to appreciate what a lawyer could do by playing to the audience. You
don’t speak to a bench that doesn’t have much comprehension of the
unfairness of gender-based distinctions the same way you would speak to
a bench that’s more sophisticated.
Dr. Marcus: Do you remember any particular lower court judges whom you liked to
appear before?
Justice Ginsburg: Judge Wisdom was wonderful. I went down to Louisiana, to New
Orleans, and I was well-prepared for the Louisiana jury case (Edwards v.
Healy) argument. When my turn came, Judge Wisdom said: “Mrs.
Ginsburg, if you feel there is something you must tell us, do so, but I think
we understand your case.” So there I was, ready for my great argument,104
but the presiding judge was also fully prepared. So I said: “On the merits,
no, but would you like to hear a little bit about the standing?” Judge
Wisdom was a treat.
And so was Alvin Rubin. I truly loved him. We started the
Louisiana jury case in his district court. He was just what a good judge
should be. He didn’t let the parties take their good old summer time. He
scheduled pre-trial conferences, he pushed to assure that cases didn’t linger
in his court any longer than they should.
I might also mention Judge Jack Weinstein, in the Eastern District
of New York. I didn’t argue before him, but a colleague, Nadine Taub,
presented to Judge Weinstein a case that was number six or seven to
commence in a series we had on the same issue. The case was argued
before a three-judge court with Judge Weinstein as the convening judge.
It was argued on a Monday. He decided it on Friday that same week. The
case next went to the Supreme Court. It was not the one with the best
facts. The one we had started eighteen months earlier had the most
compelling facts. It was decided perhaps four weeks after Jack’s decision.
Our best case was not the one the Supreme Court took. The general rule is
first out of the lower court, first into Supreme Court.
Dr. Marcus: Did you have any D.C. Circuit arguments?
Justice Ginsburg: I had a three-judge court case with Judge MacKinnon as the circuit judge,
Judge John Lewis Smith as the convening judge, and Judge Oliver Gasch
as the third judge. Judge Smith was a very good, careful, polite judge.105
Judge MacKinnon asked me the best question in the argument. I was sure
he would be dead set against me from everything I knew about him. He
had a beautiful daughter, and he probably feared, so I thought, that people
like me might corrupt a sweet, innocent girl. Then I met his daughter,
Kitty MacKinnon. Her ideas were far to the left of anything I would ever
conceive. I quite misapprehended the situation.
Dr. Marcus: Did he vote against you?
Justice Ginsburg: No. No.
Dr. Marcus: No. He voted for you?
Justice Ginsburg: He did. He wrote a separate opinion, but it was a unanimous judgment.
Dr. Marcus: I’d like to review some of your most famous cases before the Supreme
Court, but one that you didn’t argue that you’ve mentioned several times in
this interview is Reed v. Reed, and I notice in looking at it and what was
said afterwards that your brief became famous as the “grandmother brief.”
Do you remember why, why it’s called that?
Justice Ginsburg: It is the grandmother brief, but Charles E. Moritz’ brief was the
grandfather brief. We wrote that one first. Moritz was a case my husband
(Martin D. Ginsburg) and I took together. The argument developed in
Reed was first sketched out in the Moritz brief. The Reed brief in some
respects resembled a Brandeis brief. That is, it presented the history of
women’s status under the law and tried to show why the discriminations
dressed up as favors in fact worked to confine women to a corner of the
world, to keep them from realizing their full talents.106
The Reed presentation was further developed in the ACLU’s
Frontiero brief, originally filed as a friend-of-the-court brief. The reply
brief in Frontiero was a joint venture between the ACLU and Sharron
Frontiero’s counsel from the Southern Poverty Law Center. The brief for
Captain Susan Struck was the brief most dear to my heart. Her case was
remanded for consideration of mootness just after the brief was filed.
Dr. Marcus: Your first oral argument before the Supreme Court was in Frontiero v.
Richardson?
Justice Ginsburg: Yes.
Dr. Marcus: How was it decided that you would present that argument?
Justice Ginsburg: The ACLU had written the jurisdictional statement in Frontiero, and we
thought we had an understanding that we would also control the brief on
the merits. But that agreement wasn’t in writing, and there was a
misunderstanding. I wanted to make “sex a suspect classification” the
number-one argument, not thinking that the Court would accept it,
expecting that they wouldn’t, but wanting to plant, just plant the idea. Joe
Levin, whose client Sharron Frontiero was, wanted to do it the other way
around, to argue first that the classification was irrational, or so it seemed.
So we submitted separate briefs, then came together and wrote a joint
reply brief. Later, we decided that I would argue why sex should be
especially suspect as a classification criterion, and Joe Levin would argue
that the statutes we were challenging failed even a rational basis test.
Dr. Marcus: So how long did you get to argue that?107
Justice Ginsburg: I think I had twelve — twelve minutes’ worth.
Dr. Marcus: Twelve minutes?
Justice Ginsburg: Yes. And it’s a good argument. I reread it. There wasn’t a single
question, and I thought it was —
Dr. Marcus: There wasn’t?
Justice Ginsburg: No. I thought the silence from the bench meant they weren’t interested,
and then I found — well, you can see in the Frontiero decision the highest
compliment a lawyer can receive. Justice Brennan took whole passages
from the brief and put them, without substantial change, in the opinion.
Dr. Marcus: I was going to ask you that if, with regard to all of these cases, whether
they adopted your language, your rationale.
Justice Ginsburg: Yes. Well, that was always my objective, to write a brief that a judge
could take and make into an opinion.
Dr. Marcus: So in Frontiero, that was successful. How did you prepare for this
argument?
Justice Ginsburg: Mostly I was arguing with Joe Levin in Chuck Morgan’s office — Chuck
Morgan was then the Washington, D.C., ACLU office head – about who
would do what, what I would say and wouldn’t say. I didn’t have a moot
court for Frontiero. We were not sure who was doing what until literally
the night before the argument.
But in Wiesenfeld, for example, I had a great moot court at
Columbia with Benno Schmidt and Hal Edgar as my judges — and my
students completed the bench.108
Dr. Marcus: And did such an argument kind of take over your life before it took place?
Did you devote all of your time to preparing for it?
Justice Ginsburg: I couldn’t devote all of my time to it, because I had a lively little boy and a
daughter growing up. My last argument in the court was Duren v.
Missouri, a case I argued together with a very nice young man named Lee
Nation. He was a descendant of Carrie Nation, the temperance leader. He
and his buddies from the Kansas City, Mo. Public Defenders Office came
to New York to work out the argument with me. It was another divided
argument. The young men were sleeping one or two nights in my living
room, and seemed more interested in seeing the town than in planning the
argument. One night, it was 3:00 a.m. and the Kansas City young men
were not yet home. So my mind was occupied by concerns other than the
argument. It worked out fine.
Dr. Marcus: This may strike you as a silly question, but your first argument before the
Supreme Court, how did you decide what to wear?
Justice Ginsburg: I don’t remember what I wore. I remember what I wore for my first law
firm interview at law school (a tailored black suit, the gift of my ever-
supportive mother-in-law). I don’t remember what I wore for the
Frontiero argument. I’m sure it was a tailored suit, because my idea in
court was always to dress in a way that wouldn’t be distracting. I wanted
the Court to concentrate on what I was saying and not on what I was
wearing.
I was made conscious that people look at women in a different way109
when I was teaching at Harvard in the fall of ’71, and one of the women in
the class disclosed: “We wait for you to come every week, and we always
notice what you wear. We never notice what the men who teach us wear.”
I suggested: “Start noticing the ties your teachers wear and
comment on them. They’ll be surprised that you noticed, but probably
pleased.”
Dr. Marcus: That’s true. Having presented arguments before the court, do you feel
you’re more sympathetic to advocates today?
Justice Ginsburg: Yes, I am, but at the same time I always try to ask the question I think
important, and especially the ones that may go against the person who’s
arguing, because there’s nothing more disappointing to a lawyer than
having the Court decide a case on a basis the lawyer never had a chance to
develop. So I do ask a lot of questions.
As an advocate myself, I always welcomed questions. It is a
worrisome thing for a lawyer to face stone faces, judges who don’t ask any
questions, for then you have no idea what’s in their head.
Dr. Marcus: And that’s what happened in Frontiero, no questions.
Justice Ginsburg: Right. Right.
Dr. Marcus: And had you prepared an argument sort of beginning to end?
Justice Ginsburg: I always prepared a good first sentence and last sentence, and the rest in
between had to be flexible. There are points you want to make, and you
can use a question to advance them, but if you’re wedded to a script and
believe you must say this before that, then you’re not going to do very110
well. Oral argument should be a conversation between the court and the
lawyers.
Dr. Marcus: But if no one asks the question, you have to be prepared to speak.
Justice Ginsburg: Right. Right.
Dr. Marcus: Did you ever sit down before your time was up?
Justice Ginsburg: No. No. But I once got some extra minutes because Justice Blackmun
asked me a question just as the red light went on, and Chief Justice Burger
was more indulgent about that sort of thing than Chief Justice Rehnquist
is. I gave a very long answer. I got perhaps five extra minutes.
Dr. Marcus: That is very unusual. Do you think there’s any difference between
argument before the Supreme Court or court of appeals?
Justice Ginsburg: One difference is time. This Court, even in the days of Chief Justice
Burger, is rigid about sticking to the allotted time. In the D.C. Circuit, you
could go on and on if someone was interested. At least in the years I was
there, every judge was indulgent of a colleague who wanted to ask more
questions.
Dr. Marcus: I didn’t know that there’s no specific time period —
Justice Ginsburg: Oh, there is.
Dr. Marcus: There is, but I mean they don’t insist upon it?
Justice Ginsburg: There was less than a half hour a side, ten, fifteen, maximum twenty
minutes per side. But then, if a judge wanted to pursue a question, as, say,
Judge Silberman has been known to do, he or she could go on and on.
Here oral argument is on a very tight timeline. When time is up, that’s it.111
Another difference, at the Supreme Court a judge must exercise more
restraint. Obviously, on a bench with eight colleagues, one must be less
active than when there are only two other people. You can’t ask all of
your questions. There won’t be enough time.
Dr. Marcus: Do you remember feeling more confident in your later arguments just
because you had been there before?
Justice Ginsburg: I remember having a feeling of great power as I got into the Frontiero
argument. The first sentence was hard, and I was very nervous, but then I
looked at these people and said to myself: “They are a captive audience,
they have no place to go. The nine most important judges in the country
have to listen to me for the remainder of this argument.” But I genuinely
enjoyed appellate advocacy. I became engaged in the process, the court-
counsel exchanges, and I regarded it as very much like teaching. What we
were arguing was something new to most judges. They recognized race
discrimination, that was a bad thing, but they never thought about sex
discrimination. Most men who were in decision-making roles in the
seventies thought that laws differentiating on the basis of sex favored
women. To make them conscious that laws seeming to favor women in
fact discriminated against them was a real challenge.
[Recording interrupted]
Okay. We have to move faster, because we’re taking too much time.
Dr. Marcus: We do take time, but if you don’t mind just doing it year by year, I think in
the end this is going to be wonderful. I really do.112
We were talking about what it was like to argue here, and you were
growing more confident with each argument, and I was going to ask you
whether you remembered anything special about an individual justice
from these arguments. Did anything strike you about anybody?
Justice Ginsburg: I mentioned that Justice Blackmun, who asked few questions, asked me in
the case of Kahn v. Shevin the best question I could have had. His
question gave me an opportunity to distinguish race from sex
discrimination. I noticed that Justice Stewart would sometimes help out a
lawyer who was on the ropes by asking friendly questions, and I noticed
that Justice Marshall could sometimes be very rough on lawyers.
Dr. Marcus: Do you think that stemmed from his own experience as an advocate?
Justice Ginsburg: Perhaps, but Reed v. Reed is a good example of what I mean. On both
sides the lawyers were from Boise, Idaho. They were lawyers who
operated in a different milieu. The lawyer for Cecil Reed was on
unfamiliar terrain. One might say he was totally out of his element, and
Justice Marshall showed him no mercy.
Dr. Marcus: Did you ever fear that that might happen to you?
Justice Ginsburg: The one who was hardest on me, but not at all in an intimidating way, was
Justice Stevens. I think it was in the Goldfarb case. He asked a question
to which I did not wish to give a direct answer, and he asked it three times.
Dr. Marcus: Did you finally answer it?
Justice Ginsburg: Not to his satisfaction. If I knew what was in his mind, as I did when I
read his opinion — he wrote a concurring opinion; it was a very good one113
— I might have given an answer more satisfying to him.
Dr. Marcus: I have a question. In a number of the cases you presented before the
Supreme Court, you represented male clients.
Justice Ginsburg: Yes.
Dr. Marcus: And I was curious as to whether you had any difficulty persuading your
fellow women’s rights advocates that even favorable treatment for women
should be eliminated in favor of equal treatment.
Justice Ginsburg: We never urged eliminating anything beneficial. That was key in the
entire series of cases. We regarded them, first and foremost, as instances
of discrimination against women. Yes, in the Social Security cases a man
was denied benefits. Why was he denied benefits? Because the woman as
worker was undervalued. She got benefits only for herself. The male
worker, who paid the same Social Security taxes, got benefits for himself,
his spouse, and his family. So I regarded that whole series of cases as an
extension of the idea that women deserve equal pay. That’s what they
really were, equal pay cases. Although a man was the complainant
because he was denied benefits, the reason he was denied benefits was that
he was the spouse of a worker whose work was undervalued.
Every one of those cases involved a male in a dependent role, a
male who did not put himself forward as the sole breadwinner who
counted in the family. In every one of the cases — it was key to what we
were doing — the benefits were extended to men. That’s why I don’t say
that the Court invalidated the statutes we challenged. They didn’t. They114
invalidated the gender line in the statute, and they inserted a carat mark,
they added widowers to widows, husbands to wives. They rejected as a
basis for classification the stereotype that held women down. The woman
was disadvantaged as breadwinner; the man was disadvantaged as spouse.
The male plaintiff cases were good examples of the irrationality of
drawing lines on the basis of sex.
Dr. Marcus: In one of the cases, the last case you argued, Duren v. Missouri, you
represented a man convicted of first degree murder –
Justice Ginsburg: Right.
Dr. Marcus: – and robbery. I was just curious as to how this affected you. What did
you think about that?
Justice Ginsburg: The earlier jury service case in which I assisted, Taylor, defendant Billy
Joe Taylor, was no better. He was a rapist. One of the key things about
being a citizen is that you are obliged – not just permitted but obliged – to
serve on juries. Women got the vote and one might think serving on juries
runs automatically with the franchise. But it didn’t, according to the 1961
Supreme Court. There was a large effort in the 1950s to put women on
juries on the same basis as men. Dorothy Kenyon devoted much of her
attention to that issue. The Kansas City Public Defenders, in the late
1970s, raised challenge to Missouri’s then opt-out system for women on
juries in nearly every case. So Duren came to be the case taken up by the
Supreme Court.
I had hoped the Court would take a case from Tennessee, in which115
Edna Stubblefield was the defendant. She too had been tried for homicide.
She would have been my pick. There were other cases as well; at least
two involved female parties complaining about the absence of women on
juries. But the first-out/first-in way the Court works made Duren the
precedent-setting case. The essential point was the same in all of the cases
— that jury service is an obligation as well as a right, and if women are
full citizens, they have to be called for jury duty just like men.
Dr. Marcus: I know that that was a very important point to make, but it didn’t matter to
you that you had to represent someone who —
Justice Ginsburg: No. And after Taylor’s case, I had a file of letters from Angola because
Billy Joe Taylor told his buddies in the prison at Angola, Louisiana, about
this nice lady lawyer that helped him win his case in the Supreme Court. I
received from Angola inmates fantastic stories written by or for people
who said they didn’t do the dirty deed, or God told them to do it.
Dr. Marcus: Before you ever argued, I guess, in the Supreme Court, Roe v. Wade had
been decided, right?
Justice Ginsburg: Roe v. Wade was decided in January 1973. It was decided after Reed, and
a few months before Frontiero.
Dr. Marcus: And did you have anything to do with that litigation at all?
Justice Ginsburg: I looked over the brief in Doe v. Bolton, which was submitted by Margie
Hames. I made some suggestions; most of them were not incorporated.
But I didn’t participate in the argument of any of the abortion cases, and
I’m on record for what I think about the Roe decision. (See Speaking in a116
Judicial Voice, 67 N.Y.U.L. Rev. 1185 (1992).) It reached the right result,
but it went much too far much too soon, and to this day I think we’re
seeing the ramifications of that.
Dr. Marcus: Did you, yourself, ever think of bringing an abortion case to the Court at
that time?
Justice Ginsburg: No. I thought the Court would simply say in Roe: “This most extreme
law is unconstitutional.” And then the political process would take over.
The access to abortion battle was underway in the state
legislatures. The fight proceeded state by state, and the most restrictive
laws were toppling all over the country. I remember what a terrific
organizing tool that issue was for women. They were getting political
experience, and then, in one fell swoop, it was all over. The entire job was
done by the Supreme Court. It was too easy. The troops went home
thinking they were secure in their victory while the other side amassed a
powerful opposition. The Court was a single target that didn’t move.
Before Roe, opponents of access to abortion had to diffuse their energy all
over the country, mounting defensive efforts in the various state
legislatures.
I certainly recognized from the beginning the centrality of
reproductive choice, whether through contraception or, as a last resort,
abortion. But I think it would have been much healthier for everyone if
there had been more of a development of that issue in the legislatures.
The Court, in my view , should not have preempted the ongoing process.117
The sex discrimination laws we were challenging were really obsolete,
there was no justification for them. How could you go into the 1970s and
not call women for jury duty on the same basis as men? Abortion was
different because it was highly controversial. Okay. Next question?
Dr. Marcus: No. I think that’s it. We’re at the end.
Justice Ginsburg: Okay. We must go on to the D.C. Circuit.
Dr. Marcus: I know. We’re going to eventually.
END OF SESSION THREE