U.S. Supreme Court Justice Ruth Bader Ginsburg joins National Constitution Center President and CEO Jeffrey Rosen to discuss his new book, Conversations with RBG: Justice Ruth Bader Ginsburg on Life, Love, Liberty and Law—an informal portrait of the Justice through an extraordinary series of conversations, starting in the 1990s and continuing to today. They expand upon several of the conversations featured in the book, such as Justice Ginsburg’s favorite dissents, key gender cases she worked on throughout her career, and how to lead a productive, compassionate life of service. They also reflect on the performance that preceded the discussion.
The discussion was preceded by a special performance of “The Long View: A Portrait of Ruth Bader Ginsburg in Nine Songs” by Patrice Michaels, composer/soprano/creator and daughter-in law of Justice Ginsburg.
This episode is a crossover with our companion podcast, We the People, where this Town Hall originally aired.
The National Constitution Center gratefully acknowledges the Bernstein Family Foundation for its generous support of our education programs in Washington D.C. This program is made possible in part through support from the John Templeton Foundation.
FULL PODCAST
PARTICIPANTS
The Honorable Justice Ruth Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Since her appointment by President Bill Clinton in 1993, Justice Ginsburg has built a judicial reputation renowned for upholding gender equality, workers’ rights and the separation of church and state. The second-ever female justice, she has read 19 dissenting opinions from the bench to date. She began her career as professor of law at Rutgers University and in 1972 became the first tenured female professor of law at Columbia University and co-founded the Women’s Rights Project at the ACLU. In 1980 President Jimmy Carter appointed her to the U.S. Court of Appeals for the D.C. Circuit.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law by Jeffrey Rosen
- “Jeffrey Rosen on Conversations with RBG” a conversation celebrating Jeff’s book launch with Slate’s Dahlia Lithwick on our Live at America’s Town Hall podcast
This episode was engineered by Greg Scheckler and Jackie McDermott and produced by Jackie McDermott, Tanaya Tauber, and John Guerra.
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected].
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on Apple Podcasts, Stitcher, or your favorite podcast app.
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit, charted by congress to increase awareness and understanding of the constitution among the American people. On December 17th, I had the honor of sitting down with Justice Ruth Bader Ginsburg as part of the launch of my new book Conversations with RBG, Ruth Bader Ginsburg on Life, Love, Liberty and Law.
We listened to a beautiful performance of the Long View, a song cycle about Justice Ginsburg's life, composed and performed by her daughter-in-law Patrice Michaels, and then Justice Ginsburg offered her reflections about the piece, and also her advice about how to achieve self-mastery. How to overcome unproductive emotions like anger and jealousy so that you can focus your energies on productive work. She also reflected on the sources in her own life, of her remarkable capacity for empathy and ability to focus on the concerns of others. It was an unforgettable conversation, for all of us who were lucky enough to experience it. I hope you find it as meaningful as I did.
We'll be back next year for another weekly show of constitutional debate. For now, please enjoy my conversation with Justice Ruth Bader Ginsburg.
It was so inspiring to hear Patrice's spectacular songs. I'm so excited just to go through them with you, because she set to music such significant words from your life, and I want to hear more of your reflections about them, so I'm going to get the bretto, which is in the CD, and we're going to start ... I need my constitutional reading glasses for this ... With Justice Douglas's letter from 1943, "When you say you have no available graduates whom you can recommend for appointment as my clerk, do you include women? It is possible I may decide to take one, if I can find one who is absolutely first-rate."
Was Douglas unusual in this attitude? Did he actually take some women? And, tell me about the other women who were path breakers in that era on the Supreme Court.
Hon. Ruth Bader Ginsburg: [00:02:50] Justice is ... Justice Douglas's clerks were chosen for him, by west coast law school deans. In the year 1943, we were at war. Many of the men were in service, so when Justice Douglas was told, "We have no one this year to recommend to you," he asked the question, "Have you considered women?" And he had a clerical [inaudible 00:03:24]. He was an excellent clerk, but there was not a second woman clerking at the court for over 20 years. And so in 1944, and then we go up to 1968, and Justice Black engages Margaret Cochran.
Now, that was a special case, because Margaret Cochran's father was a very well-known democratic politician. Some called them Tommy the Cock. It didn't work out so well. The-the justice told his clerk, "I want you to go over X number of participants for review over the weekend, and then summarize them for me." And she said, "This weekend, my father has to appear at a number of fund raisers, and he ... My mother died, and so he needs a woman to come with him."
Justice Black didn't take very kindly to Margaret not completing the petitions for review. Then, in 1972, the west coast deans picked two women. In those days ... Nowadays we had four clerks, in those days we had two. Both women, and [inaudible 00:05:02] reaction to that was, "Now, that's women's lib with a vengeance."
It wasn't until the 70s that women began to show up in numbers at the court, and that-that was typical for the way, the way things were.
Rosen: [00:05:24] Now we come to this remarkable piece, and Patrice said it so powerfully, Celia, an imagined letter from Friday August 12th, 1949, and the advice that your mother gives you in this letter is advice that you often repeat? You told it to me for our conversations, and I asked you how you were actually able to follow it, the advice that says ... And it's so important to get the exact words. She says that first she says, "Be independent. Prepare for difficulty, and stand on your own two feet like Eleanor Roosevelt." What was the context for when she gave you that advice?
Ginsburg: [00:06:18] That was, it was ... My mother's advice was don't lose time on useless emotions. Like, anger, resentment, remorse, envy. Those, she said, were just sap time, and they don't get you any place. One way I had with coping with the occasions when I was angry, was I would sit down and practice the piano. Now, I wasn't very good at it, but-but it was, it did distract me from whatever useless emotion I was feeling at the moment. And later, I did the same with the cello. So, music I can be absorbed in the music, and the useless emotion gave it away.
Rosen: [00:07:25] I have to tell you that when we talked about that advice, I said this is the advice of the great wisdom traditions, but it's so hard to achieve in practice. You said, "Yes." "How do you actually do it," I said. And you said, "I realize if I don't do it, I'll lose precious time from productive work."
Ginsburg: [00:07:42] Yeah. Yeah.
Rosen: [00:07:43] But it's ... And I find myself, every day, when I am going to lose my temper or feel anger or jealousy or envy, I think what would Justice Ginsburg do? WWRBG do? And I-I honestly, I practice this now every day, and I try to restrain myself and find serenity, so I want you to say more about how you actually do it. You ... We know, famously, you go to the gym now to work out. How do you practice serenity in your mind? Do you meditate?
Ginsburg: [00:08:10] No. No, but I do follow advice that I've often repeated. My mother-in-law's advice on the day I was wed. We were married in my mother-in-law's home, and she took me aside just before the ceremony to tell me the secret of a happy marriage. And it was, "It helps sometimes to be a little deaf," which is advice I have followed assiduously in every workplace, even in my current job.
So, if an unkind word is said, you just tune out.
Rosen: [00:09:10] I've practiced that advice, as well. But I have to ask you more about it, but this is a life lesson that everyone around the country who has heard you describe it wants to know how to, how to practice it. So-so let me ask you more about the con... The context where your mother was talking about this. You just lost your sister, Marilyn, only six, gone, and your mother told you always to move on and don't be trapped by grief, and always to focus on doing your work, and on your path.
Ginsburg: [00:09:49] I-I don't have a memory of my sister, because I was not yet two when she died. But, she was a presence in my growing up. It was, you can imagine, a tremendous tragedy. To have a six-year-old child die of meningitis, these were days before there was penicillin. There wasn't even the [inaudible 00:10:16] drug. To see a child suffer and die is something that stays with parents forever.
Rosen: [00:10:26] You also lost your mother when you were in high school, of course. How did her advice, given to you in high school, to be independent, be a lady, be like Eleanor Roosevelt, master your emotions carry you forward as you faced those challenges for which she could not have prepared you?
Ginsburg: [00:10:46] [inaudible 00:10:49].
Rosen: [00:10:47] She could not have prepared you.
Ginsburg: [00:10:48] Yes.
Rosen: [00:10:49] Did-did you continue to learn those lessons from other people?
Ginsburg: [00:10:51] Yeah.
Rosen: [00:10:52] Or was it enough just from her?
Ginsburg: [00:10:53] Yeah. Well, the-the advice be independent, and I remember the idea was it would be very nice if you met Prince Charming and married and lived happily ever after. But maybe it won't turn out that way. In fact, it did.
Rosen: [00:11:16] It did.
Ginsburg: [00:11:19] She said, "Always be prepared to be self-standing. To be independent." This was at a time when most wives were considered dependent. When it was if a man's wife worked, that reflected adversely on the man. There was a line in, in the cycle about be nice to Jane, her mommy works.
Rosen: [00:11:51] Yes.
Ginsburg: [00:11:53] And Jane was regularly invited for play dates, for weekends by her housemates. There was an enormous change from the birth of my daughter to the birth of my son 10 years later. Because in the 50s, Jane was born in 1955, there were very few working moms. Ten years later, when my son is born, it's not all ... At all unusual to have a two-earner family. It was a sea change in the way people were living in that 10-year span.
Rosen: [00:12:40] And some of that change took place after you went to law school and cared for Jane, and the third song, Advice from Morris is so powerful. If you really want to go to law school you'll stop feeling sorry for yourself, and find a way to do it. Your attitude should be, "I'll somehow surmount this. I'll find a way to do what you want to do." Your astonishing self-discipline and focus and determination is awe-inspiring, and did he help you cultivate that?
Ginsburg: [00:13:12] Yeah, that advice has stood me in very good stead. I was overjoyed that I was going to have a child. But on the other hand, worried about how I could cope with the first year of law school. And father's advice was if you don't want to go to law school, no one will think the less of you. If you really do want to become a lawyer, you will stop feeling sorry for yourself, you will find a way. And that advice, I important turns in my life, and ask myself do I really want this. And if I did, I found a way. The first thing I did was to ask everyone I knew, wherever I was, do they know a nanny in the Boston area.
And, as luck would have it, there was, there was a young couple, they were in the process of divorce, and they were moving to someplace else, and they had a wonderful New England nanny. So, law school was fine.
Rosen: [00:14:27] I-I, before we leave this period, you-you were so astonishingly self-possessed early on. You wrote that letter to Eleanor Roosevelt, which made me weep, as I told you-
Ginsburg: [00:14:40] Mm.
Rosen: [00:14:40] - when I read it, about the four freedoms, and the, and the need to resurrect them. In the RBG exhibit, which is moving around the country, there are editorials you wrote for the Cornell Newspaper about wiretapping and surveillance. Did-did-did you feel like all of these life lessons were instilled basically by your mother in high school? Or were there important ones that came after that?
Ginsburg: [00:15:06] Then ... Did what-what occur in ...
Rosen: [00:15:10] I-I suppose I, you-you-you seem to have been fully formed and able to overcome your emotions, and focus on productive work from an extremely early age, which is really so astonishing. And I'm wondering did-did it all come in those early years, or were there important lessons that came after, which your mother did not and could not have prepared you?
Ginsburg: [00:15:31] Perhaps it began when my mother was dying. She wanted me to do well in school. So, I would sit in her bedroom and do-do my homework. Concentrate on that. Maybe that's where it began. But even at Cornell, I can ... There can be a room full of women in the dorm, and they're talking and ... or playing bridge or whatever. And I could sit there with my notes, and I wasn't distracted.
Rosen: [00:16:25] She had that, too, as we learned from her ... Willing Willa Cather and falling down in the street, and hurting her nose.
Ginsburg: [00:16:31] Yeah.
Rosen: [00:16:32] That astonishing focus. And you had it your clerks told me last year that you were celebrating a birthday in chambers, and you were working, and about, you know, 10 or 15 people gathered in the room to celebrate, and you looked up in surprise, because you hadn't even noticed that anyone had come into the room.
Ginsburg: [00:16:52] [laughs]
Rosen: [00:16:52] That focus is very important, isn't it? For being productive, and-and achieving your goals.
Ginsburg: [00:17:05] Yes, it's ... Well, with something else I note-noticed. It-it was important for me to be able to concentrate on my work. Take-take my day in-in-in law school. So, our nanny came in at 8:00 and left at 4:00. I used the time in between classes to study, to read the next day's assignment, but at 4:00 it was children's hour. I took care of Jane, we went to the park, we played games, we sang silly songs.
And then she ... When she went to sleep, I went back to the books. But I had-had to make the most of the time that I had. I couldn't waste any time. And then it got even harder when my husband Marty had cancer, in his third year of law school, my second year. So it was helping him get through that trying time. That's when I began to stay up all night. It's-it's not-not a good habit. It's not a [laughs] I would urge anyone else to have. But we, he-he's ... His routine was he'd have radiation, he'd come home, be very sick, go to sleep, get up about midnight, whatever food he could eat for the day was between midnight and 1:00. Then he would dictate his senior paper to me, which was on loss corporations.
Rosen: [00:19:08] Oh my goodness. [laughs]
Ginsburg: [00:19:10] And after he went back to sleep about 2:00, that's when I would begin my own work. So, that didn't allow many hours. But I found out that working at night, there are no distractions, the telephone doesn't ring.
Rosen: [00:19:34] So it's a resolution to use every moment of the day for productive work or elevating leisure, or for thoughtful concern about others.
Ginsburg: [00:19:46] And I also noticed in the ... With the law firm life was like. And Marty worked for a large law firm. It was known as a sweat shop, as many of them were, but in the tax department, which he headed, everyone was-was out by 7:00.
When I observed what was going on, well, the people who were staying around all day, they take time to read the newspaper, and they were not totally focused on their work. So it was I think worked out well for me. That I had that ability to-to concentrate, and not waste time.
Rosen: [00:20:43] The next song is on working together, and it's the story of the Moritz case, which is now immortalized in the wonderful movie On the Basis of Sex.
Ginsburg: [00:20:51] Yes, the script was written by my nephew.
Rosen: [00:20:56] It's ... and it's great that you've got your daughter-in-law doing the song cycle, and it's very good to keep artistic endeavors in the family.
Ginsburg: [00:21:07] Well, what when, when my nephew Don came to me and said he would like to do script for a movie on this Moritz case, I said, "Why did you choose that one? The Supreme Court didn't take it." And he said because he wanted his script to be as much a story of a marriage, as the story of the development of a legal strategy.
Rosen: [00:21:38] There's one factual question I have to ask from the song. Marty sings in the song, "Her room was bigger."
Ginsburg: [00:21:48] That is not ... That was not true.
Rosen: [00:21:54] Was it? Not true. I'm sorry, [laughs].
Ginsburg: [00:21:54] No, Marty worked in the dining room. It was a large room. It was lined with tax books. I worked in my bedroom. So he was always in the bigger room.
Rosen: [00:22:10] [laughs]. Ra-rather than ask you about Moritz, because that story was so well-told, I want to ask you about another of the plaintiffs that you represented, because it's so extraordinary how focused you are on the details of their lives, and how you've kept in touch with them, and learned from them, and grown with them. And you told me that you're going to see Sharon Frontiero this summer for the 100th anniversary of the 19th amendment.
Ginsburg: [00:22:36] Yes.
Rosen: [00:22:36] Tell me, and tell our friends what you learned from ... Who Sharron Frontiero was, and what you learned from her, when you first met her and were representing her, and-and what she's doing now.
Ginsburg: [00:22:49] Sure. Sharron Frontiero was a lieutenant in the air force. She married a young man who was a college student, and she went to the finance officer on base, because she expected to get the quarters allowance that's available to, she thought married members of the service, and to give her husband access to the medical and dental facilities on the base.
And she was told, "Those benefits are available to men in the military. They are not available to women." The assumption was a man's wife is his dependent, so he gets the housing allowance, and she has access to the medical and dental facilities on the base. Sharron Frontiero couldn't believe that. She said, "I'm a lieutenant in the air force. I should get the same pay." She, it-it was, in truth, an equal pay case. But the equal pay act did not apply to the military.
In any event, she won big in the supreme-
Rosen: [00:24:19] [laughs]
Ginsburg: [00:24:19] In the supreme. And we have made ... We have remained friends through the years. In fact, I just got a note from her today. She's now a grandmother. And we-we will be in Omaha, Nebraska together, to speak about her case as part of the celebration of the 100th anniversary of the 19th amendment.
Rosen: [00:24:52] The ... What is she doing now? What is Sharron Frontiero doing now?
Ginsburg: [00:24:57] She's living in New England and she-she's retired. But she's keeping very busy taking care of her grandchildren, enjoying nature. We all have after Sharron Frontiero, Stephen Wiesenfeld became one of my favorite clients. His story is also well, his story is heart-rending. He was a young man, married to a woman who was a teacher in the high school. She became pregnant, was a very healthy pregnancy. She went to the hospital to give birth, and the doctor came out and told Stephen, "You have a healthy baby boy, but your wife died of an embolism." So, at that moment, he vowed that he would not work full-time until his child was in school full-time. And he figured out that with Social Security benefits, plus part-time earnings, he could just about make it. He would be able to support himself and his child.
He went to the Social Security office because he had heard about these child-in-care benefits for children under 12, and he's told, "Sorry, these benefits are not available to you. These are mothers' benefits." This was in the early 70s. And Stephen wrote a letter to the editor of his local newspaper in Edison, New Jersey, and the letter started out, "I've heard so much talk about women's lib. Let me tell you what happened to me." And he describes going to the Social Security office, and wanting to personally care for his child, but being blocked. He would have to work full-time in order to support both of them.
And the letter ended, "Does Gloria Steinem know about this?" There was a woman who was teaching in-in the Spanish department in Rutgers, who lived in the same town. She read the letter, and she called me, and she said, "This isn't right, is it?" I said, "Why don't you suggest to Stephen Wiesenfeld that he get in touch with the local ... With the New Jersey affiliate of the ACLU. And that's-that's how his case began.
And, we are in touch to this very day. I think that he is featured at this museum exhibition? But it was a wonderful decision. It was a unanimous judgment. The court divided the reasoning. Now, the reasoning they divided three ways. The majority recognized that s-s-Stephen Wiesenfeld is feeling the effect of the discrimination, but he's discriminated against because his wife, who was the wage earner, pays the same Social Security taxes as a man pays, but her family doesn't get the same protection. Some of the justices thought-thought as discrimination against the male as parent, why should a woman only, not a man, have the opportunity to personally care for a child, when that parent is the sole surviving parent?
And then there was one, the only time in all the cases I argued that ever got his vote, it was then Justice Rehnquist who said, "Is this totally arbitrary from the point of view of the baby? Why should the baby not have the opportunity for parental care when one parent is deceased? Only if the surviving parent is female and not male?" But it was such a good illustration of how these gender lines in the law hurt everyone. Hurt women, men, and children.
Rosen: [00:29:58] What's so extraordinary, hearing you talk about these cases, is that they're real to you. You've kept in touch with the people involved, and you display such an extraordinary empathy and concern for them.
Ginsburg: [00:30:13] Can-can I say something a-about this-
Rosen: [00:30:15] Sure.
Ginsburg: [00:30:15] What was happening in the 70s-
Rosen: [00:30:18] Yes you may.
Ginsburg: [00:30:18] None of these were test cases. They weren't stage cases. We weren't going out for plaintiffs. It's there was a revive, feminist movement. People were alert to the unfairness of drawing lines on the basis of gender, and they began to complain. People well-well-well, one, big group that complained, that hadn't been complaining before was school teachers. School teachers who were forced out of the classroom as soon as their pregnancy began to show, because, as one school superintendent put it, "We can't have the children thinking their teachers swallowed a watermelon."
Rosen: [00:31:13] [laughs]
Ginsburg: [00:31:13] But these-these were ... Women put on what was euphemistically called, "Maternity leave." It was unpaid leave. There was no guaranteed right to return. This is something that women just accepted as part of the territory, but in the 70s, they stopped accepting. And they said, "This isn't right. We should not be forced out of the classroom at four months or five months, when we're perfectly capable of working until the ninth month."
So, that was one series of cases in-in the 70s. The-the Supreme Court stumbled over one issue. And-and that was is pregnancy discrimination, discrimination on the basis of sex? The first answer was no, because the world is divided into non-pregnant people, and those include most women. And then there are just these pregnant people, they are all women. So, how can it all be sex discrimination? But there were ... There was a coalition, people from all across the political spectrum agreed that the Supreme Court got it wrong. And so, the pregnancy discrimination act was passed at the end of the 70s. It was a sole simplicity. The-the law read, "Discrimination on the basis of pregnancy is discrimination on the basis of sex."
To, but, the- and similar things were happening in-in the university world. So, when I went to law school, I was one of nine women in a class of over 500. In the early 70s, women started coming to law school in numbers, and when they were ... Women there in numbers, and, you know, no longer one-at-a-time curiosities, other women were encouraged. Well, there are so many women doing it, we can do it too. So, now we have law school classes with at least 50% of the class are women.
Rosen: [00:33:56] It's very ... This is a hard question, because it's hard to know the sources of one's own character, but the extraordinary empathy that you have demonstrated for the plaintiffs that you have represented, and for your law clerks, and for your family, and for your friends, is one of the many striking features about you. Where did that empathy and concern for others come from?
Ginsburg: [00:34:25] It-it may have begun when I appreciated how much my parents were affected by the death of my sister. I knew what it was like to grieve. If I had to point to any one thing, I-I'd say it was that growing up with an under-understanding of what it, what it means to have a devastating loss in one's life.
Rosen: [00:35:10] And-and you can feel other people's pain. Is-is that right? You're alert to the real challenges of the people that you work with and represent and face.
Ginsburg: [00:35:31] Yes, if-if-if I can do something to make someone feel a little better, of course I should-should do it.
Rosen: [00:35:46] You find time-
Ginsburg: [00:35:46] Or at least, at least to feel they are not alone. That there are other people who have encountered the same ... A terribly trying situation, and they made it through. I know it certainly helped me in my cancer bouts. To have a support and the advice of another empathetic person, and that was Sandra Day O'Connor, who, herself had had ... She had had a mastectomy. She was on the bench nine days after her surgery. So, when I had colorectal cancer, she gave me some very good advice about how to handle it. Including schedule the chemotherapy for a Friday, that way you get over it during the weekend, you could be back in court on Monday. Or, she said now I know that you like to acknowledge any-anything, any gift that you get. You ... There are going to be hundreds of people writing to you. Don't try to answer any of that correspondence. Just put it aside, and do the court's-court's work.
Rosen: [00:37:39] That-that ability to focus on the concerns of others in the middle of your own challenges you showed me last year in this very building, we heard a performance of Patrice's beautiful piece, and it was the first time you'd come out since your own surgery. And my mom had just passed, and you handed me the note about my mom's passing that I quote in the book. And that was so thoughtful of you. And thank you so much for making time to think of her in the middle of your own [inaudible 00:39:04].
Ginsburg: [00:38:12] Mm. Mm. I-I was very glad I could attend that evening. It was uncertain until the last moment whether I could, which is why I didn't say in advance that I would be there. But, tonight I'm feeling fine.
Rosen: [00:38:38] [laughs].
All right, we've got to go back to the show, because there's some very important other questions that Patrice raises.
Ginsburg: [00:38:46] Wait, I want ... I'd like to say something about Anita Escudero, Marty's wonderful secretary.
Rosen: [00:38:48] Yes, I was going to ask you ... Tell-tell that ... She's next. Anita's story. So yes tell us about her.
Ginsburg: [00:38:54] She's another one that I stay in touch with.
Rosen: [00:38:57] You-you ... Wow. So-so she's surprised when Marty delivered the briefs and then you showed up, and she was impressed by how elegant you were, I suppose.
Ginsburg: [00:39:07] Mm.
Rosen: [00:39:08] And then what was she was-was Patrice right to imagine her saying to her husband in Spanish, "I'm not a wife, I'm a person"?
Ginsburg: [00:39:18] And that ... Yes.
Rosen: [00:39:19] Tell us the story.
Ginsburg: [00:39:20] Yes. Anita was a fantastic typist. She'd been a flamenco dancer. But it-it ... She's just one illustration, you read this stuff, you think about it, and you see that it's right.
Rosen: [00:39:42] And-and-and what did, what-what happened to her? What did she do afterward?
Ginsburg: [00:39:52] What happened to Anita?
Rosen: [00:39:54] To-to Anita. What did she do after working for you, and you said you're still in touch with her as well.
Ginsburg: [00:39:58] I think she's-she-she's long-retired.
Rosen: [00:40:12] What was-
Ginsburg: [00:40:12] And we would ... we ... What was next? Was it the elevator song? That one?
Rosen: [00:40:18] Let's see what's next. Okay, now the elevator song, you'll tell the story. You have told this story before, but we now know this is happening at the Dalton School in 1975.
Ginsburg: [00:40:28] Yeah. Yeah.
Rosen: [00:40:28] Now, I was there, then, of course, too, because I-I was a year, I think, behind at Dalton. And we now know that the headmaster who called you, and called Marty about the elevator was Donald Barr, who is the father of our current attorney general.
Ginsburg: [00:40:46] Yeah. I didn't know that about that [inaudible 00:41:44].
Rosen: [00:40:49] Yeah, oh you ... Yes, he had a son. He had a son who may not have stolen an elevator, but is now running the justice department. So tell us ... Tell us more about what Donald Barr was like. Because he was a very controversial, neo-conservative character who wanted teachers with pizazz and was very ... Made a big impact on the school. So, what was, what was he like?
Ginsburg: [00:41:13] Well, he-he had ... He had a program on weekends at Columbia to introduce children to science. And Jane' was in that program. And I thought that was innovative, and I thought he was a fine, fine program. And James, my dear son was what I call lively, and his teachers called hyperactive. Today, he's a very fine human. But he was kind of a cut ... Class clown while he was at Dalton. And it he-he took the elevator, on a dare for one of his classmates. The operator had gone out for a smoke. So, James took the elevator upstairs, and he was met by three stone faces when he got there. And-and then, I-I'd stayed up all night writing a brief, and when I got ... I got calls from the school about once a month. Please come down to hear about your son's latest escapade.
And I was weary, and I said, "This child has two parents. Please alternate calls, and it's his father's turn." And I don't know whether it was Marty's answer, so he stole the elevator, how far he could take it. I think it was the reluctance to take a father away from his work, but there was no quick change in James's behavior. Still, the calls came barely once a semester. And I think because of the reluctance to take a father away from-from his work.
Rosen: [00:43:10] It was in the air, but would-would Donald Barr have been sexist in that way?
Ginsburg: [00:43:15] Would he have?
Rosen: [00:43:15] Would-would he have been sexist in that way, in-in treating women different than men, as parents?
Ginsburg: [00:43:20] Well, that-that was the gestalt. That would ... That's the way it was. It was women as well as men, in the school. They-they didn't hesitate to call a mother. But they were very reluctant to call, to call a father.
Rosen: [00:43:47] Can I ask, because your life lessons are so precious, I'm asking this as a parent myself, what discipline did you impose on James?
Ginsburg: [00:43:55] Hmm?
Rosen: [00:43:56] What discipline did you impose on James? Or be sorry he's not here tonight, because-
Ginsburg: [00:44:00] Well, there was, there was something about James. James loved music from when he was very small. And we took him first to the Little Orchestra Society that played at Hydra College, and then he graduated to the Philharmonic. He wouldn't sit still for anything else, but with music, it was, he was rapt attention, so I knew I could always get to him that way. Now, sadly, he-he ... Like his mother, he had no talent as a performer.
Rosen: [00:44:47] That's true.
Ginsburg: [00:44:47] But not ... Today he makes the most exquisite CDs, I think, in the world. So, he, his, the ... Well, that's one of Sadie's recordings. It's the Chicago Recording Foundation.
Rosen: [00:45:07] The-the CDs [inaudible 00:46:07].
Ginsburg: [00:45:08] And I'm-I'm really proud of what he has accomplished.
Rosen: [00:45:12] It's extraordinary, and the range is beautiful, and his partnership with Patrice and her glorious music is just such a joy to [inaudible 00:46:19].
Ginsburg: [00:45:21] You know, how he stopped being the class clown when we moved to DC. He was in the tenth grade. The first parent/teachers day, the music teacher asked, "Can you get your son to stop flying his model airplanes during class?" And I was surprised that James was doing that. And I said to her, "This child loves music. Find a challenge for him." She did. She said, "To graduate in your senior year, you have to have a project. And your project will be, that you will teach this class. When you're in the 12th grade, you will teach this-this class." And that got him to focus.
Rosen: [00:46:19] And he did?
Ginsburg: [00:46:20] And he did, and he was very frustrated by the children who were not rapt attention.
Rosen: [00:46:31] [laughs]. It always comes back, no-no question about it. The Dissenter of the Universe. Well, first, I want to ask, you love music so much, and you relate to it in such a powerful, intimate way, and you told me that it takes you outside of yourself, and when you listen to music, then you can't think about the briefs and writings that you have to do, but you just focus totally on the music. So I want to ask, what was it like ... What did you feel when you heard your Great Dissents set to music? Did it strike you as a neutral beat that reigned in the emotions of the words? Or did it amplify it? How did ... How do you think they did it as a libretto?
Ginsburg: [00:47:12] I-I think it ... I think it's a wonderful, wonderful piece. I keep saying that this whole Notorious RBG was started by a second-year student at NYU law school, who followed my mother's advice. She started it when the Shelby County case [inaudible 00:48:41] the Shelby County case took the heart out of the voting rights act of 1965. And she was angry.
And then, decided that an-anger was not a productive emo-emotion, so she was going to do something positive. And she took not the lengthy dissent, but the bench announcement that I read. Normally, dissents are not read from the bench. The author of the majority opinion will say, "And so-and-so dissented." But, if you think the court not only got it wrong, but egregiously so, then you will want to call attention to the dissent by summarizing it from the bench. So that's what I did in the Shelby County case. And she put that on a Tumblr. And then it took off into the wild blue yonder.
Rosen: [00:48:45] [laughs] It certainly did.
Ginsburg: [00:48:46] I know, it was interesting. She decided Notorious RBG after the well-known rapper, the Notorious BIG, because she decided that the two of us had something important in common. That we were both born and bred in Brooklyn, New York.
And I think it took off because young people were yearning for some story, something hopeful. Something that is positive. And then, in my life, I have seen ... In my long life, I have seen so many changes. Changes for the good. The most important is-is we are now using the talent of all of the people, and not just half of them.
Rosen: [00:49:57] And that's largely thanks to you.
Ginsburg: [00:49:59] No. Not. I was just fortunate to be around at the right time. Because, really, I have some men, forever I've been saying the same thing. But, society wasn't ready to listen until the 70s. So many things were working in favor of change. For one thing, people were living a lot longer. So it meant that a woman would spend most of her life with no childcare responsibilities. For another, in the 70s, there was inflation. So, if you wanted your family to prosper, you would need two-two earners. So, and then, taking care of a home was easier than it was before we had labor saving devices. So that many things were working in favor of that change. And I was there. and a lawyer. And able to take part in this, in this movement.
You know, even the 60s, think of Hoyt against Florida, or when the so-called liberal warring court said it's okay to keep women off juries. Because they are the center of home and family life. And not appreciating that citizens have obligations as well as rights. One of them is to participate in the administration of justice by serving on juries. Men have no automatic exemption, because they are leaving, but the women are expendable. They're not really necessary. That-that attitude persisted into the 60s.
But in the 70s, there was a different reality, so all of the gender discrimination cases were decided when Warren Burger was the Chief Justice. A-a [inaudible 00:53:47] that had the label of "Conservative". So, I would say my part in this ... I was ... What I was saying in the 70s, I was speaking to an audience prepared to listen, than earlier periods than larger society, and certainly the judges.
Because the understanding was that these differentials, based on gender, that riddled the law books, that they operated benignly in women's favor. So, women were excused from jury duty because, well, that was favor. Who would want to serve if they didn't have to. Michigan's Law saying women couldn't be bartenders. That was a favor, because bars could be pretty raunchy places.
All these distinctions were rationalized as operating benignly in favor of women, and the biggest challenge that I have was to get the judges to see that, far from operating benignly in women's favor these women, these distinctions, as Justice Brennan said so well in Frontiero, put women on a ... Not on a pedestal, but in a cage.
Rosen: [00:54:43] But it wasn't only that things changed in the 70s. It is remarkable that when you were nominated in '93 soon after you and I met in-in '91, the magnitude of your achievements as the Thorogood Marshall of the women's movement, as President Clinton was able to say, quoting the Dean of Harvard Law School when he nominated you, weren't appreciated even by some women's group. Some fundamental changes have taken in our society between 1993 and today that have made people appreciate the magnitude of your achievements on behalf of gender equality.
They include the #MeToo movement, the increased presence of women in the workplace, the mobilization of young women who look to you as a hero. How do you account for the fact that society now recognizes the magnitude of the importance of the work you did in gender equality today, in a way that it didn't even 20 years ago?
Ginsburg: [00:55:52] [inaudible 00:56:57] is recognized more today than it was, but it certainly was noticed in '93 by the president who nominated me.
Rosen: [00:56:05] It was. It was, indeed. It, he-he did notice it. He-he-he-he caught it. But-but, you know, all-all-all of, all of this, you know this and we've talked about it. The tumbler, the pop culture celebrity, the fact that you're rightly viewed as one of the greatest figures of constitutional change of the 20th century. This has happened in the past 10 or 15 years, and it's-it's, you-you-your biographers will have to account for this, but what social changes do you think are most important in sensitizing America to the crucial importance of gender equality.
Ginsburg: [00:56:45] Now, as-as I said, this Notorious RBG was created by a second-year law student who was going to use her energy in a, in a productive way. And it's-it's, my story is a hopeful story. It leads one to be optimistic about the future. I have often said what's the difference between a bookkeeper in the garment district and a Supreme Court Justice? One generation. My own life bears witness. The opportunities open to my mother who was a brilliant woman, and those open to me.
So, it's-it's ... It's an exhilarating change. It's a permanent change. We are never going to go back to the days when women were not seen in decision-making arenas.
Rosen: [00:57:59] Your optimism is so inspiring, and when we talked last July, for the last interview in the book, I asked you whether you were optimistic or pessimistic about the future of the Supreme Court, and whether the five-to-four decisions where you were in the majority would be overturned, and you said you were skeptically hopeful.
Ginsburg: [00:58:23] Yes.
Rosen: [00:58:25] Are-are you still skeptically hopeful?
Ginsburg: [00:58:26] Yes. Yeah. Have to be. When-when I see ... Just when I was growing up, there was still lynchings going on in the United States. My childhood was in World War II. We were fighting a war against odious racism, and our troops going into that war were rigidly separated by race. Yes, we had a long way to go, but how far we have come.
Rosen: [00:59:05] This is a time when many people say that things have not been worse for a long time. And not only in the United States, but around the world we're seeing waves of populism and nationalism that are threatening the constitutional values that you have defended so eloquently. Why are you optimistic, and why do you believe that we will emerge from these anxious times with those constitutional values intact?
Ginsburg: [00:59:33] Well, we had ... Be-because we have in the past. And we will again. The, our country has gone through some very bumpy periods. But, I-I'll tell you the principle reason why I'm optimistic, and that's the young people that I see. And my granddaughter, my law clerks, these are people that are determined to work for the good of society. And to work together. So, the, and, the-the-the young people make me hopeful. If they wanted to be part of creating a better world.
Think of Malala. Think of this Greta Thunberg, who's the Swedish what is she. 15, 16? And so, I'm-I'm putting my faith in-in the coming generation.
Rosen: [01:01:04] And-and what will you say to them? What must young people do to preserve the values of justice and freedom and democracy that you-
Ginsburg: [01:01:16] Well, one thing they have to work together. And I think many of them are. I've talked to young people about the importance of getting out to vote, so that's one for your democracy. Don't have a society where people say, "Why-why bother voting? It doesn't make any difference." So. One of my law clerks, and like-minded people, and their effort is to get every 18-year-old to be sure to register to vote.
Rosen: [01:02:11] You were not a great fan of Learned Hand who unwisely turned you down for a clerkship because you were a woman, but he did say something, meaningful.
Ginsburg: [01:02:20] he said, when ... Something to the effect of when liberty is lost in the hearts of men and women, no court can restore it.
Rosen: [01:02:34] Exactly right. Do ... Is that ... Do you believe that?
Ginsburg: [01:02:37] Yes.
Rosen: [01:02:38] Yes.
Ginsburg: [01:02:39] That was a great speech. And it was to a group of new citizens being sworn in at Central Park in New York. And he's, he talked to, about li-liberty residing in the hearts of the men and women that were ... Of this society. And he was so right in saying that.
Rosen: [01:03:17] Liberty lives in the hearts and minds of men and women, yes when-
Ginsburg: [01:03:20] Yeah, because the courts are not leaders for social change. They are following a movement that's in the larger society. I think that was true, with respect to racial justice. It's true, now with the women's movement. It's true with the, oh, let me see if I get the digitals right. LB ... You say the rest.
Rosen: [01:03:56] LBGTQ. Yes, absolutely.
Ginsburg: [01:03:58] Yeah.
Rosen: [01:03:59] Yeah.
Ginsburg: [01:04:00] Yeah. And then it ... How long that discrimination lingered when people were hiding in closets. It's only when they came out and said, "This is who we are, and we're proud of it." And once they did that, changes occurred rapidly.
Rosen: [01:04:22] And it's been mobilized citizens, women, who have led the #MeToo movement which has led to such a sensitizing about the need for equal dignity in the workplace. And yet, courts do play some role. I need to ask you about just one point that came up in the book. You-you you'd said in one of our interviews that you hoped that courts would not enforce non-disclosure agreements in #MeToo cases, and I wanted to ask you why you said that, because I know you've thought about it.
Ginsburg: [01:04:57] Well why, because it ... Because these agreements suppress what is happening. They're often arm-twisted agreements. They're not what the woman would choose. But if she's given a proposition and told, "Take it or leave it, you want the money you've got to sign this agreement." And what is your response? To-to that kind of agreement? We'll pay you if you keep quiet.
Rosen: [01:05:58] Are you remain optimistic about the future of #MeToo and of balancing due process concerns against the need for justice?
Ginsburg: [01:06:08] Do-do I think the #MeToo movement is here to stay? Yes. I was told that the New York Times knew about Harvey Weinstein, was told about him two years before the-the-the story broke.
Rosen: [01:06:34] That would not have been today, thanks to the movement itself. I'm, I-I feel like Lincoln, I'm loathe to close. I don't want to give you up, because it's so meaningful to have this-
Ginsburg: [01:06:47] I think we're reaching the witching hour.
Rosen: [01:06:48] I think we are, too. It's the enchanted hour, when it's spent with you, because every moment with you is meaningful. So I'm going to just end by asking you what ... Whether there's some dream that you have that you have yet to fulfill. Some-something that-
Ginsburg: [01:07:08] What-what is that?
Rosen: [01:07:09] Something you'd still like to do. What-what-what's some dream that you would still like to fulfill? What's-what's next that you would like?
Ginsburg: [01:07:17] I have my dream job, as I said.
Rosen: [01:07:20] Yes.
Ginsburg: [01:07:20] It's the hardest and best job I ever had. I love what I do, and as long as I'm able to do it, full steam, I will.
[inaudible 01:09:09]
Thank you.
Rosen: [01:08:19] [music] Today's show is engineered by Greg Scheckler and produced by Jackie McDermott. Please rate, review and subscribe to We the People on Apple podcasts, and recommend the show to friends, colleagues or anyone, everywhere, who is hungry for a weekly dose of constitutional debate. And always remember that the National Constitution Center is a private non-profit. We rely on the generosity and passion of people from across the country who are inspired by our non-partisan mission of lifelong education and debate about the US Constitution. You can support our mission by becoming a member at ConstitutionCenter.org/membership, or give a donation of any amount to support our work, including this podcast, at ConstitutionCenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
