Speaker 1: On September eight, the world lost an extraordinary person with
Speaker 1: a brilliant mind and a caring heart, a trailblazer who
Speaker 1: will be remembered as one of the most influential advocates
Speaker 1: for equality in the history of our country. I'm talking,
Speaker 1: of course, about Supreme Court Justice Ruth Bader Ginsburg, who
Speaker 1: dedicated her life to widening the circle of opportunity and
Speaker 1: opening doors for countless others who came after her, and
Speaker 1: who became a pop culture sensation, the notorious RBG in
Speaker 1: the process. I've often said that nominating Justice Ginsburg to
Speaker 1: the Supreme Court was perhaps the best decision I've made
Speaker 1: as president. I'll never forget the first time we met,
Speaker 1: when I invited her to the White House for an
Speaker 1: interview as I weighed my decision about the Supreme Court nomination.
Speaker 1: Just about ten minutes into our talk, it was already
Speaker 1: clear to me that she had the best combinations of
Speaker 1: skills and instincts of any of those I was considering.
Speaker 1: I wanted to appoint someone who was open minded, passionately
Speaker 1: committed to equality, and determined to work with the other
Speaker 1: judges to try to forge consensus when it was possible,
Speaker 1: and also willing to stand up for them when it wasn't.
Speaker 1: For more than twenty seven years on the Supreme Court,
Speaker 1: she went above and beyond even my highest expectations. So
Speaker 1: why am I telling you this? Because as we celebrate
Speaker 1: Women's History Month, Ruth Bader against Bird's remarkable story is
Speaker 1: an important reminder of the barriers she faced in her
Speaker 1: life and career, systemic obstacles that her male counterparts were
Speaker 1: not subject to and often didn't even consider. She didn't
Speaker 1: just overcome those barriers, she tore many of them down,
Speaker 1: and use your own experiences to in former decades of
Speaker 1: work on behalf of others whose voices weren't being heard today.
Speaker 1: I want to share a part of that story is
Speaker 1: told by Justice Ginsburg herself. In Justice Ginsburg joined NPR
Speaker 1: Legal Affairs correspondent Needa Totenberg for a special conversation hosted
Speaker 1: by the Clinton Presidential Center as part of the computer's
Speaker 1: Distinguished Lecture series. I often wonder if, as a young lawyer,
Speaker 1: she could have even imagined that the eighties, six year
Speaker 1: old Supreme Court justice version of herself wouldn't be filling
Speaker 1: arenas normally reserved for concerts and sports events and acting
Speaker 1: as a role model for girls and boys who dreamed
Speaker 1: of living in a country dedicated to genuine fairness and equality.
Speaker 1: As you listen to this episode, I asked that you
Speaker 1: do so not just with a heavy heart that Justice
Speaker 1: Ginsburg is no longer with us, but with a sense
Speaker 1: of gratitude for the many years of wisdom, guidance, and
Speaker 1: inspiration she gave us. Her work made America stronger, fairer,
Speaker 1: more just, and we're all better because of her service.
Speaker 1: That is a gentleman, just a Skinsbourg. The need to
Speaker 1: talking bird. Thank you, thank you. Need everyone need be ceded,
Speaker 1: need be ceded, Thank you, thank you, thank you, um,
Speaker 1: thank you all for coming. I think Justice Skinsburg and
Speaker 1: I have never ever appeared before an audience this large
Speaker 1: before war, and uh, I understand that normally this is
Speaker 1: I guess recently the worldwide wrestling entertainment. We are not
Speaker 1: going to wrestle each other. We're going to try to
Speaker 1: entertain you a bit and inform you. UM you've heard
Speaker 1: President Clinton describing his why he picked Justice Ginsburg. But
Speaker 1: I think I should start this interview asking you about
Speaker 1: that interview. UM, So let me set the stage. The
Speaker 1: year is the new President is flirting with all manner
Speaker 1: of potential Supreme Court nominations, and uh, the names keep
Speaker 1: getting leaked to the likes of me Um and behind
Speaker 1: the scenes, the inimitable Martin Ginsburg is doing everything in
Speaker 1: his power to promote his tiny but auspicious wife. Uh.
Speaker 1: And finally you get a call from burning us Baum
Speaker 1: the White House Council, and it's a call that you
Speaker 1: had long hoped for. But you are in something of
Speaker 1: a fashion dilemma. So tell us about how you got
Speaker 1: the call that day calling you to the White House
Speaker 1: and what your fashion dilemma was. I was called on
Speaker 1: a Saturday in Vermont, where I was to attend a wedding,
Speaker 1: and Bernie Nus said, the President wants to meet you.
Speaker 1: Please come back to d C. And I said, well,
Speaker 1: I've told all this way to attend the wedding. Can
Speaker 1: I come tomorrow morning? And he said fine, We'll go
Speaker 1: right from the airport to the White House. And I said,
Speaker 1: but I'll be wearing my traveling clothes. Oh that's okay,
Speaker 1: because the President would be just coming off the golf course.
Speaker 1: So I arrived in by playing clothes and incomes a
Speaker 1: very handsome president wearing his Sunday best because he just
Speaker 1: comes from church. So what was the conversation with the President?
Speaker 1: Like what kinds of things did he ask? And did
Speaker 1: you have a good time or were you in interview agony?
Speaker 1: Though it was very easy to talk to the President.
Speaker 1: We talked about constitutional law, after all, he was a
Speaker 1: constitutional law professor. We talked about family, have we talked
Speaker 1: about many things. And I've had the experience with some
Speaker 1: men that they have a certain discomfort talking to a woman.
Speaker 1: That was not that way with President Clinton. So I
Speaker 1: was told after that interview by a number of White
Speaker 1: House aides, but he just felt for you, hook line
Speaker 1: and sinker. And this afternoon when we were talking, he said,
Speaker 1: in five minutes, I had just fallen for her hook
Speaker 1: line and sinker. Um, but when did you get the word?
Speaker 1: Do I recall that you got a call from burning
Speaker 1: us down when you were in the bathtop or something
Speaker 1: like that. That night it was rather late on Sunday night,
Speaker 1: and it was one of the happiest moments of my life.
Speaker 1: I was absolutely on cloud nine. And then the President said,
Speaker 1: and tomorrow morning, we will have a little ceremony in
Speaker 1: the Rose Garden, and we'd like you to make a
Speaker 1: few remarks. I had to come down from the cloud
Speaker 1: sit at my writing table. I liked the remarks. It
Speaker 1: was the only time in that entire episode when there
Speaker 1: was no time from White House handless to go over
Speaker 1: what I was going to say, my own words, unedited.
Speaker 1: You know, you then went into a confirmation process. I
Speaker 1: think in the end you got I'm not sure about this.
Speaker 1: I think there were only three Thank you. Republicans today
Speaker 1: all often cite the Ginsburg rule, And when I go
Speaker 1: back and I read the transcript, I read about what
Speaker 1: your rule was. But it strikes me that in light
Speaker 1: of modern confirmation hearings, more modern confirmation hearings, UH nominees
Speaker 1: are considerably less responsive of all political strikes, not just
Speaker 1: Republican nominees. You actually answered questions about abortion and the
Speaker 1: death penalty and all kinds of things. The Ginsburg rule
Speaker 1: was that you please do not ask a question that
Speaker 1: may come before the court, because then I would have
Speaker 1: to disqualify myself if I gave an answer, because the
Speaker 1: judge is not supposed to react just off the top
Speaker 1: of her head when a question is presented to us.
Speaker 1: We read first of all the decisions that were written
Speaker 1: by the courts below, the trial court, Court of Appeals,
Speaker 1: and then we read the briefs that are anything but
Speaker 1: brief filed by the lawyers, and we read the relevant President.
Speaker 1: So to give an answer to a question without the
Speaker 1: benefit of all that reading and briefing is not what
Speaker 1: a judge to do. Still, there was a lot out
Speaker 1: there that I could be asked about. Because I was
Speaker 1: seventeen years of a law teacher, thirteen years a judge
Speaker 1: on a Court of Appeals. I had written hundreds of opinions,
Speaker 1: many articles, and anything that I had already written was
Speaker 1: fair game. So you arrived at the court. You're the
Speaker 1: second woman, and Justice O'Connor had been there for twelve
Speaker 1: long years without you. Right, what advice did she give you?
Speaker 1: She told me just enough to enable me to navigate
Speaker 1: those early weeks. She didn't douse me with a bucket
Speaker 1: full of information, just enough to get by. She was,
Speaker 1: I think, very pleased at a change the court made
Speaker 1: when I was appointed. Justice O'Connor was a lone woman
Speaker 1: on the court for twelve years. In our robing room,
Speaker 1: there is a bathroom and it says men for Justice O'Connor,
Speaker 1: when the need a rose she had to go all
Speaker 1: the way back to her chambers. When I came on board,
Speaker 1: they rushed a renovation. They created a women's bathroom equal
Speaker 1: in size to the men's. Your first opinion assigned to you,
Speaker 1: it was not quite what you expected, and you went
Speaker 1: to her. Yes. The legend is that the new justice,
Speaker 1: the junior justice, will get a single issue case in
Speaker 1: which the court is unanimous. Her Chief Justice Frienklis gave
Speaker 1: me as my first assignment a Miserable Orissa case. Arissa
Speaker 1: is the Employee Retirement Security Act. It is one of
Speaker 1: the most complex statutes Congress ever wrote. The quote was
Speaker 1: not unanimous, divided six to three, and Justice O'Connor was
Speaker 1: on the other side. She was one of the three.
Speaker 1: So I came to her and I said, Sandra, he
Speaker 1: was not supposed to do that to me. Her response,
Speaker 1: and this is typical of Justice O'Connor. She said, Ruth,
Speaker 1: you just do it. Just do it and get your
Speaker 1: opinion draft in circulation before he makes the next set
Speaker 1: of assignments. Otherwise you will risk getting well the miserable case.
Speaker 1: I could never understand why lawyers that appeared before the court,
Speaker 1: who appeared before the court and not people who were
Speaker 1: not accustomed to the court, but some very seasoned lawyers
Speaker 1: would get these two women mixed up. And Sander Day
Speaker 1: O'Connor was about five seven or eight. You claimed to
Speaker 1: be over five ft tall. Uh. She was a Western
Speaker 1: ranch girl with a Western twang. You were a New Yorker,
Speaker 1: a Brooklyn girl. I don't know that it was a
Speaker 1: Brooklyn twang, but you were clearly an Easterner. Uh. She
Speaker 1: didn't wear her hair the way you do. Um. And
Speaker 1: still people kept calling you Justice O'Connor and her Justice Ginsburg.
Speaker 1: Why more much more often? I always called Justice O'Connor. Oh.
Speaker 1: The lawyers had learned there was a woman on the
Speaker 1: court and her name was Justice O'Connor, so when they
Speaker 1: heard a woman's voice, it had to be Justice O'Connor
Speaker 1: that she would sometimes respond, I'm Justice O'Connor, she's Justice Ginsburg.
Speaker 1: There was a lot of attention paid to the two
Speaker 1: of us and how we interacted, and one day, I
Speaker 1: think it was in USA today, there was a headline.
Speaker 1: The headline was rude Ruth interrupts Sandra. Sandra had asked
Speaker 1: a question at argument. I thought she was finished, and
Speaker 1: she said, just a minute I have follow up questions.
Speaker 1: I apologize to her and she said, Ruth, don't give
Speaker 1: it another thought. The guys knew it to each other
Speaker 1: all the time. There even was a T shirt presented
Speaker 1: to the two of you, I think by I think
Speaker 1: it was the Radcliffe somebody, some group of women from
Speaker 1: Radcliffe and one side said I'm Sandra, I'm Sandra, not Ruth.
Speaker 1: It was the National Association of Women Judges. They had
Speaker 1: a reception for the two of us and they gave
Speaker 1: her a T shirt that said I'm Sandra, not Ruth.
Speaker 1: Mine I'm Ruth not Sandra. But if we can fast forward,
Speaker 1: I can tell you that doesn't happen anymore now that
Speaker 1: we are three. They're kind of a difference. Does it
Speaker 1: make to have three? One is the public perception. We
Speaker 1: have a line, a ten minute line, often school children
Speaker 1: coming in and out of the court and if they
Speaker 1: see three women. Because of my senior already, I sit
Speaker 1: next to the Chief Justice, so to my horis on
Speaker 1: one side, Justice Kegan on the other. So where one
Speaker 1: third of the court where all over the bench And
Speaker 1: as you will affirm, my sisters in law are not
Speaker 1: shrinking violence. They have very active in the colloquy that
Speaker 1: goes on at at an oral argument. For the years
Speaker 1: of Justice Scalia was with us. There was kind of
Speaker 1: a competition between Justice so to my art, and Justice Scaliah,
Speaker 1: which one could ask the most questions at all argument.
Speaker 1: You were, um, the lone woman justice after justice so
Speaker 1: kind of retired from two thousand and six. I think
Speaker 1: the two thousan pretty near the end of two thousand nine,
Speaker 1: and I had the sense that you were not a
Speaker 1: very happy camper at that time. It was a lonely
Speaker 1: position and viewing the court, it was something raw with
Speaker 1: the picture. The public would see these eight rather wealth
Speaker 1: and men coming on the bench, and then they were
Speaker 1: this rather small a woman. M And did you find
Speaker 1: that even there on occasion when you were just one,
Speaker 1: did you occasionally see that phenomenon of you say something
Speaker 1: and nothing happens, and then ten minutes later or five
Speaker 1: minutes later, one of your brethren says the same thing,
Speaker 1: and everybody goes, oh, that's a very good idea. Well,
Speaker 1: that happened at conference, um more than more than once.
Speaker 1: But I would make a comment, no reaction. Then one
Speaker 1: of my male colleagues would say basically the same thing
Speaker 1: and people would react. That's a good idea. Let's discuss it.
Speaker 1: It's a habit that had developed that you don't expect
Speaker 1: very much from a woman, so he kind of tune
Speaker 1: out when she speaks, but you listen when a mail speaks.
Speaker 1: Now I can tell you that that experience which I
Speaker 1: had as a member of the law faculty, as a
Speaker 1: member of a quote of appeals, now that I have
Speaker 1: two sisters in law, it doesn't happen. I'm gonna pause
Speaker 1: here and ask you the question on people's minds. You've
Speaker 1: had a lot of serious threats to your health this year. Uh,
Speaker 1: you were operated on for lung cancer in December. You
Speaker 1: have just completed three weeks of radiation treatment for an
Speaker 1: additional cancer. So how are you feeling? And excuse me,
Speaker 1: I'm really thrilled that we're here, But why are we here?
Speaker 1: You you finished radiation treatment at the end of August. Yes,
Speaker 1: and August twenty three was the last and it was
Speaker 1: the last session. But I had promised the Clinton Library
Speaker 1: that I would be here and I just was not
Speaker 1: doing too h Thank you, thank you, thank you. Yeah,
Speaker 1: And I'm pleased to say that I am feeling very
Speaker 1: good tonight. How do you keep going? I mean you
Speaker 1: you have. I've took a ton of briefs with me
Speaker 1: on the plane here, and I managed about an hour
Speaker 1: and a half's worth, and then I was ready for
Speaker 1: a break. You do this when you're sometimes feeling really
Speaker 1: rotten in the last year, How do you keep going?
Speaker 1: I think my work is what saved me because instead
Speaker 1: of dwelling on my physical discomforts, if I have an
Speaker 1: opinion to write, or I have a brief to read,
Speaker 1: I know it's I've just got to get it done,
Speaker 1: and so I have to get over it. Well, my
Speaker 1: This is another instance where I got very good advice
Speaker 1: from Justice O'Connor. Justice o'conna had a mastectomy and she
Speaker 1: was on the bench nine days after her surgery. She
Speaker 1: told me in my first chance about it was colorectal cancer. Ruth.
Speaker 1: You schedule your chemotherapy for a Friday, then you can
Speaker 1: get over it a Saturday and Sunday and be back
Speaker 1: in court on Monday. But you have done this really
Speaker 1: all of your life. Cancer is not a stranger to you.
Speaker 1: Your mother died the day before your graduation. Your husband
Speaker 1: was diagnosed with testicular cancer. When you were both at
Speaker 1: Harvard Law School, and you had an eighteen month or
Speaker 1: two year old child at the same time, and you're
Speaker 1: on our review. I think I often get Justice Ginsburgh
Speaker 1: just to describe what a day in her life, that
Speaker 1: awful year was like. Before Marty survived and beat the odds,
Speaker 1: we took it day by day. We always believed that
Speaker 1: we would we would prevail, that we would beat the cancer.
Speaker 1: It was not an easy time after he had surgery.
Speaker 1: He had massive radiation because there was no chemo therapy
Speaker 1: in those days. So he would come home, be sick,
Speaker 1: go to sleep, get up about twelve midnight, and whenever
Speaker 1: he ate for the day, he would eat then he
Speaker 1: then he would dictate his senior paper to me. I
Speaker 1: had no takers for all of his classes. My routine
Speaker 1: was I would go to my classes in the morning,
Speaker 1: go to the hospital in the afternoon, come home, play
Speaker 1: with my daughter, who was then two, you know, Jame
Speaker 1: was three. UM put her to bed after dinner, which
Speaker 1: was at midnight. I would then go back to the
Speaker 1: books and prepare for the next day. So I was
Speaker 1: getting along on two hours of sleep a night for
Speaker 1: a week. On end. We always had a positive de
Speaker 1: attitude that we would and that we would live. So,
Speaker 1: for your last year of law school, because Marty was
Speaker 1: a year ahead of you, you moved to New York
Speaker 1: to be with him for his job. Um, you graduated
Speaker 1: tied for first in your class at Columbia Law School. Uh,
Speaker 1: but you couldn't get a job. You and Justice. So
Speaker 1: Connor used to talk about how lucky that was in hindsight,
Speaker 1: that you couldn't get jobs when you graduated at the
Speaker 1: tops of your respective classes. Well, that's an example of
Speaker 1: how something that may seem dreadful, very bad luck turns
Speaker 1: out to be the most which of the thing that
Speaker 1: ever happened to you and Justice. So kind of put
Speaker 1: it this way, she said, suppose we had graduated from
Speaker 1: law school at a time when there was no discrimination,
Speaker 1: when women were welcome at the bar, what would we
Speaker 1: be today. We would be retired partners from some large
Speaker 1: law firm. But that route wasn't open to us. So
Speaker 1: we had to find another path, and that path led
Speaker 1: us to become Supreme Court justices. You were recommended for
Speaker 1: all kinds of clerkships, Supreme Court clerkships, court of Appeals clerkships.
Speaker 1: Nobody would interview you none of these, because in those
Speaker 1: days they were all in would would interview you. You
Speaker 1: finally did get a clerkship back then thanks to the
Speaker 1: rather assertive intervention of one of your professors, UM, who
Speaker 1: basically said to your judge, the judge who hired you,
Speaker 1: if you take her and it doesn't work out, I
Speaker 1: have a guy who I'll send to you. He's at
Speaker 1: at a law firm now, but if you don't, I
Speaker 1: will never send you another Columbia grad. Um. So you
Speaker 1: went to work for Judge Palmieria ended up for two years,
Speaker 1: despite the fact that you had two strikes against you
Speaker 1: where you were not only a woman, you were a mother. Um.
Speaker 1: But one of the charming stories of this period of
Speaker 1: your life is that one of the judges who turned
Speaker 1: you down and was not interested in you was Judge
Speaker 1: Learned at Hand, a very famous, famous judge, and he
Speaker 1: turned you and because she said he couldn't swear in
Speaker 1: front of you. So so you pick up the story
Speaker 1: from here. Gentle Learned Hand lived one block away from
Speaker 1: the judge for whom my clerk, Judge Palmieri and Judge
Speaker 1: Promieri often drove Lord a Hand home when I was
Speaker 1: finished in time I would ride up town with them
Speaker 1: sitting in the back seat, and this great juris would
Speaker 1: say anything that came into his head, words that my
Speaker 1: mother never taught me. And I asked him, you say
Speaker 1: you won't consider me as a clerk because you would
Speaker 1: have to censor your speech, and yet in this car
Speaker 1: I I don't seem to inhibit you at all. And
Speaker 1: his response was, young lady, I am not looking at you. UM.
Speaker 1: For those of you who have not seen RBG or
Speaker 1: the biopic on the basis of Sex, I recommend both.
Speaker 1: They provide a pretty good view of your career prior
Speaker 1: to becoming a judge and then later a Supreme Court justice.
Speaker 1: But what used to strike me when I covered your arguments, UH,
Speaker 1: was how you had tailored your arguments. You had an
Speaker 1: all male Supreme Court, and you tailored your gender discrimination
Speaker 1: cases the arguments in those cases to appeal to different
Speaker 1: justices in different ways, and you often had male plaintiffs, UM.
Speaker 1: And one of those male plaintiffs was Stephen Wisenfeld, whose
Speaker 1: wife died in childbirth and who was denied Social Security
Speaker 1: benefits for his remaining his child, who survived, even though
Speaker 1: his wife was the principal breadwinner, and you won. But
Speaker 1: there were basically three arguments that succeeded, and I wanted
Speaker 1: you to talk about each how each group of justices
Speaker 1: saw it. First, let me tell the audience how Stephen
Speaker 1: Wisenville came to my attention. He had written a letter
Speaker 1: to the editor to his local paper in Edison, New Jersey,
Speaker 1: and he said, I've been hearing a lot these days
Speaker 1: about women's lib Let me tell you my story. My
Speaker 1: wife died of an embolism just after our son was born,
Speaker 1: and I knew that there were benefits available to a
Speaker 1: soul surviving parent who had a young child to take
Speaker 1: care of. So I went to the Social Security office
Speaker 1: to claim those benefits, and I was told, we're very sorry,
Speaker 1: Mr Wisenfeld. These are mother's benefits then not available to fathers. Now,
Speaker 1: it was obvious to me that although the plaintiff was
Speaker 1: a man, the discrimination was against the woman as wage earner.
Speaker 1: She paid the same Social Security taxes that a man
Speaker 1: would pay, but her contributions did not net for her
Speaker 1: family the same protection. So I think it was the
Speaker 1: dominant view of the court that this was really discrimination
Speaker 1: against the woman as wager. In it, A few of
Speaker 1: the justices said, no, it's discrimination against the mail as parent.
Speaker 1: He doesn't have the option to personally care for his child.
Speaker 1: Under the Social Security you could earn a certain amount
Speaker 1: and still get the Social Security benefits. If you earned
Speaker 1: over the limit, the benefits would re reduce stollar for dollar.
Speaker 1: And why is a felt had figured out I can
Speaker 1: do part time work, earn a certain amount and keep
Speaker 1: those benefits. So some of the justice has said, it's
Speaker 1: obvious that its discrimination against the mail as parent he
Speaker 1: has no choice but to work full time, who doesn't
Speaker 1: have the option to care personally for his newborn. And
Speaker 1: then it was one who later became my chief, then
Speaker 1: Justice Frankist, who said, it's totally obitrary from the point
Speaker 1: of view of the baby. Why should the baby have
Speaker 1: the opportunity for the care of a soul surviving parent
Speaker 1: only if that parent is female and not if the
Speaker 1: parent is male. So it was such a wonderful illustration
Speaker 1: of how gender based discrimination hurts everyone, hurts women, hurts
Speaker 1: men and sol Then there was a case that you
Speaker 1: had that you wanted to take to the Supreme Court,
Speaker 1: but you couldn't because the case involving me, I think
Speaker 1: army or Air Force. Uh, pregnant woman, This isn't Struck case.
Speaker 1: I had hoped that that would be the first reproductive
Speaker 1: choice case that the Court would hear. The case of
Speaker 1: Rose in when Captain Struck was serving in the Air
Speaker 1: Force and she was serving abroad when she became pregnant.
Speaker 1: Pregnancy in those days was a mandatory ground for discharge.
Speaker 1: The base commander said to her two years before, will
Speaker 1: we wade, you can have an abortion on base. We
Speaker 1: provide those for women in service and wives of men
Speaker 1: in service, and if you do, you can remain in
Speaker 1: the Air Force. But if you choose to go through
Speaker 1: the pregnancy, you are discharged, no exceptions. CITs Instruck said,
Speaker 1: I'm a Roman Catholic. I cannot have an abortion, but
Speaker 1: I've made arrangements to have the child adopted at birth.
Speaker 1: I will cost the um taxpayers nothing because I'll use
Speaker 1: only my accumulated leave time for the birth. And she said,
Speaker 1: you know, here we are at Crop Air Force Base
Speaker 1: where some of my male colleagues get hooked on alcohol
Speaker 1: or on drugs, and you don't mandate their discharge. If
Speaker 1: they report themselves, they can be in a rehabilitation program
Speaker 1: and you will keep them from much longer than the
Speaker 1: time I'm going to take off for this birth doesn't
Speaker 1: make any sense. Pregnancy is a ground, a mandatory ground
Speaker 1: for discharge. And that was that. Susan Struck brought her
Speaker 1: case in the Federal District Court. She lost there or
Speaker 1: by the way, she was very well represented, so she
Speaker 1: got a stay of her discharge every month. So she
Speaker 1: was always is in fighting to stay in, not out,
Speaker 1: trying to get back in anyway, what happened then then
Speaker 1: it went to the Court of Appeals. She lost again,
Speaker 1: but there was a very good dissenting opinion, and then
Speaker 1: I wrote a petition to the Supreme Court to hear
Speaker 1: her case. The Supreme Court said, yes, we'll take it.
Speaker 1: And then the Solicitor General at the time, who had
Speaker 1: been dean of the law school Everest, attended. He asked
Speaker 1: to have a meeting with the top military people and said,
Speaker 1: this case has lost potential for the government. You should
Speaker 1: waive Captain Strucks discharge and then changed the rule respectively
Speaker 1: so that pregnancy is no longer an automatic discharge, and
Speaker 1: and the Air Force did. And then immediately the government
Speaker 1: moved to have the case returned to the Court of
Speaker 1: Appeals for determination whether it was moot no longer live
Speaker 1: because she got all the relief she was seeking, she
Speaker 1: remained an Air Force officer. So I called Captain Struck
Speaker 1: and said, is there anything you're missing so that we
Speaker 1: can claim this case is still alive? And she said
Speaker 1: when I have all my pay and allowances, so nothing there.
Speaker 1: But there is one thing this conversation is going on
Speaker 1: in in two She said, all my life, I've dreamed
Speaker 1: of becoming a pilot, but the Air Force doesn't give
Speaker 1: flight training two women. And then we laughed because we
Speaker 1: knew in two was much too early. It was still
Speaker 1: an impossible dream to win that case, and the difference
Speaker 1: between then and now is one of the reasons why
Speaker 1: I am optimistic about the future. Today, it would be
Speaker 1: unthinkable to deny flight training two winning Josh Skinsburg. This
Speaker 1: maybe a little um two thinking, but I think it's
Speaker 1: important to talk about um and that is the notion
Speaker 1: of originalism versus a living constitution. A majority of the
Speaker 1: current Court believes, to one degree or another in the
Speaker 1: notion that justices should interpret the Constitution as it was
Speaker 1: meant by the founding fathers when it was written in
Speaker 1: the late seventeen hundreds, that the original intent is what matters,
Speaker 1: and the text as it was written and what it
Speaker 1: was intended. You and most of the justices you have
Speaker 1: served with, at least until now, have a somewhat different
Speaker 1: take that the Constitution was written to be elastic enough,
Speaker 1: as Justice Kennedy, now retired, put it, to accommodate changes
Speaker 1: in society. Could you talk about your thinking a bit.
Speaker 1: President Clinton said it so well in his introduction. Our
Speaker 1: Constitution begins with the words we the people of the
Speaker 1: United States, in order to form a more perfect union.
Speaker 1: So think how things were in se Who were we
Speaker 1: the people? Certainly not people who were held in human
Speaker 1: bondage because the original Constitution preserves slavery, and certainly not women,
Speaker 1: whatever the color, and not even men who own no property.
Speaker 1: So it was a rather a lead group, we the people.
Speaker 1: But I think the genius of our Constitution is what
Speaker 1: Justice Sir good Marshall said. He said, he doesn't celebrate
Speaker 1: the original Constitution, but he does celebrate But the Constitution
Speaker 1: has become now over well over you know, well over
Speaker 1: two centuries, and that is the concept of we the
Speaker 1: people has become ever more inclusive. So people who were
Speaker 1: left out At the beginning, slaves, women, men without property,
Speaker 1: Native Americans were not part of we the people. Now
Speaker 1: all the once left out people are part of our
Speaker 1: political constituency, and we are certainly a more perfect union
Speaker 1: as a result of that. The Constitution, the original Constitution,
Speaker 1: preserved the slave trade till One of the provisions that's
Speaker 1: an embarrassment is the fugitive slave claws that said if
Speaker 1: someone held as a slave escapes into a free state
Speaker 1: and the master asked to get the slave back, the
Speaker 1: slave must be returned to the master. That fugitive slave
Speaker 1: clauses an article for the Constitution where you can still
Speaker 1: read it today, but there'll be a star next to
Speaker 1: it saying changed by the four Amendment, which says, you know,
Speaker 1: when I the first time I'm got uh Justice Ginsburg,
Speaker 1: it was by phone, and we were both quite young
Speaker 1: women compared to now anyway, and I was a brand
Speaker 1: new Supreme Court reporter reading about the first case claiming
Speaker 1: that discrimination against women was a violation of the Fourteenth Amendment,
Speaker 1: the first case in the Supreme Court, and it was
Speaker 1: ultimately the case that the Court first said it was
Speaker 1: a violation of the Fourteenth Amendment. And I didn't understand it.
Speaker 1: And I because I said, you know, the Fourteenth Amendment
Speaker 1: was enacted to cover UH slaves and African Americans, and
Speaker 1: it doesn't say anything about women. And I called you
Speaker 1: up and you gave me an hour long lecture, but
Speaker 1: I'm going to ask you for a sixty second version.
Speaker 1: But he said, I thought the fourteenth Amendment was about race,
Speaker 1: and I said, yes, it certainly is about race. But
Speaker 1: the fourteenth Amendment reads, nor shall any State denied to
Speaker 1: any person the equal protection of the laws. No. The
Speaker 1: first time the Supreme Court heard such an argument was
Speaker 1: in the eighteen seventies. A woman oh wanted to vote
Speaker 1: and she said she was stopped at the polls. And
Speaker 1: she said, now, I ran the Constitution and it says, no,
Speaker 1: sha any state denied to any person the equal protection
Speaker 1: of the law. The Court response to her was, you
Speaker 1: are indeed a person, and you are a citizen of
Speaker 1: the United States. But so too our children, and no
Speaker 1: one would suggest that children should have the right to vote.
Speaker 1: Court has come a long way since then. The turning
Speaker 1: point case that you asked me about was called Read
Speaker 1: re Read. It was about Sally Read, who had a
Speaker 1: great tragedy in her life. She had a son. She
Speaker 1: and her husband divorced when the boy was young. The
Speaker 1: legal term is of tender years. Sally was appointed custodian
Speaker 1: of the child. When the boy reached his teams, the
Speaker 1: father went to the family court and and said, now
Speaker 1: he needs to be prepared for a man's world, so
Speaker 1: I should be the custodian. Sally fought that she thought
Speaker 1: it was would not be good for her her son
Speaker 1: to live in his father's home, but she lost. Sadly,
Speaker 1: she turned out to be right. The boy was sorely
Speaker 1: depressed and one day he took out one of his
Speaker 1: father's many guns and committed suicide. So Sally wanted to
Speaker 1: be appointed administrator of his estate to take care of
Speaker 1: whatever he left behind, which was precious little small bank
Speaker 1: account and guitar, some records. That was about it, and
Speaker 1: she applied. Her former husband applied two weeks later, and
Speaker 1: the probate court judges said to Sally, I'm sorry, but
Speaker 1: the law gives me no choice. It reads this is
Speaker 1: this was the law of the State of Idaho as
Speaker 1: between persons equally entitled to administer a decedon's of state
Speaker 1: equally entitled males must be preferred to females. The thing
Speaker 1: about Sally Read is she was an everyday woman. She
Speaker 1: made her living by caring for elderly or disabled people
Speaker 1: in her home. But she thought an injustice had been
Speaker 1: done to her, and she also believed that our legal
Speaker 1: system would right that role. So on her own dime,
Speaker 1: she took the case through three levels of the Idaho
Speaker 1: court courts, and then I got involved in the case
Speaker 1: and wrote the brief for her Supreme Court case. She
Speaker 1: prevailed with a unanimous decision. It was the first time
Speaker 1: the case was decided in November, first time in history
Speaker 1: at the Supreme Court ever held agenda based classification on
Speaker 1: constitutional and and then after that precedent, we were on
Speaker 1: a roll, case after case challenging gender based classifications and
Speaker 1: challengeing on the basis of sex and understand more and
Speaker 1: RBG and understand yet more. So, speaking of children for
Speaker 1: a moment, I want to sort of lighten us up
Speaker 1: before I close with some conversation about your late great
Speaker 1: friend Justice Scalia and your relationship with him. But first,
Speaker 1: could I get you to tell the story of the
Speaker 1: elevator Thief. O The elevated Thief was my Then let's
Speaker 1: see hell, it was easy. Must have been eleven. My son,
Speaker 1: My son was a lively child. I called him lively,
Speaker 1: but his teachers called him hyperactive. His school had a
Speaker 1: hand operated elevator. The elevator operator went out to smoke
Speaker 1: a cigarette and one of my son's classmates dared him
Speaker 1: to take the kindergartens from the ground floor up to
Speaker 1: the top floor. M So my son did that, and
Speaker 1: he was greeted by three stone faces, the room teacher,
Speaker 1: the school principal, of the school psychologists, and I was called.
Speaker 1: I was getting calls about once a month to come
Speaker 1: down to the school to hear about my son's latest escapade. Well,
Speaker 1: one day I was in my office at Columbia Law
Speaker 1: School and feeling particularly weary because I had stayed up
Speaker 1: all night writing a brief, and I said to the caller,
Speaker 1: this child has two parents, please alternate calls, and and
Speaker 1: it's his it's his father's term. So and Marty, my husband,
Speaker 1: went down to the school, and was told, your son
Speaker 1: stole the elevator. And my husband, who had a wonderful
Speaker 1: sense of humans, said, so he stole the elevator, how
Speaker 1: far could he take it? Now? I don't know. Is
Speaker 1: Marty's sense of humor. I suspect it was at the
Speaker 1: school was very hesitant to take a man away from
Speaker 1: his work. There was no quick change in my son's behavior,
Speaker 1: but the cause came barely once a term because they
Speaker 1: had to think twice before calling a man away from
Speaker 1: his work. You and the Late Justice School used to
Speaker 1: spar incessively about this whole the whole subject of originalism
Speaker 1: versus a living constitution and textualism. But you were great
Speaker 1: friends for many decades. You served on the same Court
Speaker 1: of Appeals. You've known each other even I think at
Speaker 1: the University of Chicago briefly. Um, So let me start
Speaker 1: with that personal friendship. People seem always so surprised that
Speaker 1: Justice Scalia, this iconic conservative, uh and Justice Ginsburg, this
Speaker 1: iconic feminist. We're such good friends. So and I know
Speaker 1: that you really loved him. So what did you love
Speaker 1: about him? He had a marvelous sense of humor. But
Speaker 1: we were on the Court of Appeals together, and the
Speaker 1: Court of Appeals has three judges, and he would sit
Speaker 1: next to me and he whisper something during the argument
Speaker 1: that absolutely cracked me up, and at all I could
Speaker 1: do to avoid bursting out into hysterical laughter. And one
Speaker 1: thing that we come had in common we were both
Speaker 1: worked very hard on our opinions. We tried to write
Speaker 1: them so at least judges and other lawyers and hopefully
Speaker 1: a lodger public could understand what we were saying. In
Speaker 1: Justice Galia was the son of a H a lot
Speaker 1: and professor at Brooklyn College, and his mother was a
Speaker 1: great school teacher, so he was an expert grammarian. He
Speaker 1: would sometimes come to my chambers or call me and said, Ruth,
Speaker 1: you made a grammatical era. I don't want to embar
Speaker 1: rrass you by sending you a note that would be
Speaker 1: circulated to all of our colleagues, but you should fix
Speaker 1: this up. And I would call him and say, you know,
Speaker 1: this opinion is so strident, you're not going to be
Speaker 1: as persuasive as you would be if you would tone
Speaker 1: it down. He never never took that advice. We we
Speaker 1: also really really cared about family. We spent every New
Speaker 1: Year's together, and the two couples plus as many. He
Speaker 1: had many more children than I did, but whatever children
Speaker 1: wanted to come along. And Justice Scalia and I shared
Speaker 1: a passion for opera, so we were supers extras um
Speaker 1: and a couple of opera performances the Washington National Opera
Speaker 1: and by making this upper did you sit on his lap?
Speaker 1: In one of those No, the soprano sat on his lap,
Speaker 1: so he knew that she was going to end the
Speaker 1: song on his lap. But what he didn't know is
Speaker 1: it was she was going to throw her arms around
Speaker 1: him and give him a big kiss. And you traveled together.
Speaker 1: There's a very funny picture in your chambers, the two
Speaker 1: of you on to We we traveled to India for
Speaker 1: a judicial exchange, and the two of us broke away
Speaker 1: from the pack for a couple of days and we
Speaker 1: went to Rajastan and to Agara. And it was a
Speaker 1: famous picture where in the Rambab Palace in Rajastan are
Speaker 1: very beautiful. It was it was the palace of the
Speaker 1: last Maharaja of Rajastan. So there was a very elegant elephant,
Speaker 1: very beautifully painted elephant, and we were taking a ride
Speaker 1: on the elephant and I'm sitting in the back and
Speaker 1: Scalia is in the front. And my feminist friend said, horrors,
Speaker 1: what are you doing sitting in the back of the
Speaker 1: elephent And I explained it how to do with the
Speaker 1: distribution of weight. There is an opera, as you would expect,
Speaker 1: a comic opera, about the two of us. It's called
Speaker 1: Scalia Ginsburg again. Why Scalia first? Because in our workplace,
Speaker 1: Senior already really counts, and he was appointed some years
Speaker 1: before I was. So the the opera pries to portray
Speaker 1: the difference between us and Scalia's opening aria is a
Speaker 1: rage aria. It goes like this, the justices are blind.
Speaker 1: How can they possibly spout this? The Constitution says absolutely
Speaker 1: nothing about this. And then I answer, dear Justice Scalia,
Speaker 1: would you come in through a glass ceiling? Oh, that's later.
Speaker 1: About later? This is I've screwed up the store. This
Speaker 1: is the beginning, or we set up the different ways
Speaker 1: we approach a legal text. I said, you're searching for
Speaker 1: a bright line solution two problems that don't have easy answers.
Speaker 1: But the great thing about our constitution is that, like
Speaker 1: our society, it can evolve. And then there's kind of
Speaker 1: a jazz riff with let it grow, Let it Grow.
Speaker 1: The plot is um roughly based on the Magic Flute.
Speaker 1: Justice Khalia is locked in a dark room. He's been
Speaker 1: punished for excessive dissenting, and that's when I enter through
Speaker 1: a glass ceiling to help him pass the tests he
Speaker 1: needs to pass to get out of the dark room.
Speaker 1: Then character called a commentatory who is borrowed from Don Giovanni.
Speaker 1: It's appalled. He said, why would you want to help him?
Speaker 1: He's your enemy? And I explain, he's not my enemy,
Speaker 1: he's my dear friend. And then we seeing a wonderful duet.
Speaker 1: It's titled we Are Different. We are one different in
Speaker 1: our approach to reading a legal text, but one in
Speaker 1: our reverence for the Constitution and for the Institution we
Speaker 1: served yell Justice Ruth Bader Ginsburg, Dear notorious one, We
Speaker 1: thank you for a wonderful evening. Why am I telling you?
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