October 17, 2019
Episode #9: Ruth Bader Ginsburg Argues For A More Perfect Union
In the season finale of “Why Am I Telling You This?,” President Bill Clinton welcomes the Honorable Ruth Bader Ginsburg for a candid conversation with NPR legal affairs correspondent, Nina Totenberg. Justice Ginsburg shares stories from her quarter century on the nation’s highest court, her distinguished career fighting gender discrimination, what it’s like to serve among her fellow “sisters in law,” and her pop culture ascendance. In his special introduction, President Clinton shares what set her apart in his decision to nominate her to the Supreme Court of the United States.
This conversation was recorded live in Little Rock as a part of the Clinton Presidential Center’s Frank and Kula Kumpuris Distinguished Lecture Series. More: https://wjcf.co/2mnDfuK
Thank you very much. Thank you.
President Clinton: (00:09)
I’d been president for less than a year and I already had a Supreme Court appointment to make. I wanted to do a good job, as Judge Ginsburg then, was one of three people still in the running. They were all excellent candidates. I carefully reviewed their resumes, but also their life stories.
President Clinton: (00:39)
Hillary and a lot of other people had already told me I needed to take a hard look at Ruth Bader Ginsburg. They had ever met actually, but Hillary had met her granddaughter because she went out and did a preschool event not long before I announced her appointment. And she thought her granddaughter was a pretty good advertisement for her grandmother. But she told me, “You need to know about this person because you like people who have good life stories, who’ve actually lived what they say they believe.”
President Clinton: (01:18)
For those who haven’t seen the recent films about her remarkable life, a very short version. She grew up in Brooklyn in a family of modest means, and as you heard Stephanie say, thanks to her mother’s relentless early encouragement, she attended Cornell University, and then Harvard Law where she helped her husband and partner Marty through cancer treatment, while simultaneously raising her daughter and working toward a degree.
President Clinton: (01:47)
When he took a job in New York, she left Harvard. Now, that was a big sacrifice. There were then 500 people at Harvard Law School and she was one of nine women. Today, most students in law school are women. After she graduated from law school, she went on to co-found the Women’s Rights Project at the ACLU, and began her career as a judge, still when the legal field was not particularly open to women.
President Clinton: (02:36)
From the start of our first conversation in 1993, I had gotten why so many people were hoping I’d appoint her. She was both brilliant and had a good head on her shoulders. She was rigorous, but warmhearted. She had a great sense of humor and a sensible, achievable, judicial philosophy. She also kept the moral compass and the mental toughness that guided her from humble beginnings.
President Clinton: (03:15)
I was so engrossed with her story when we were sitting there, and I just kept peppering her with questions, that I suddenly felt that I was really not interviewing somebody for the Supreme Court at all. I was just a guy talking to somebody that I really liked, and that I hoped could be a part of our future.
President Clinton: (03:41)
I had once taught constitutional law and I knew how much the Supreme Court mattered. Even to people who didn’t know it, I knew that it affects all Americans, sometimes very personally and deeply. I always thought a Supreme Court justice should have the heart, spirit, talent, discipline, knowledge, common sense, and wisdom to translate the hopes to the American people, their legitimate desire for fair and equal treatment in all the cases prevented to it, into an enduring body of constitutional law, that would preserve our most cherished values and still enable the American people to move forward.
President Clinton: (04:26)
When I ran for president and I promised the American people that kind of justice. I think I kept that promise. I appointed Justice Ginsburg for three reasons. First, she proved to be one of the nation’s best judges on the bench. Progressive in outlook and judgment, balanced and fair in opinions. Second, she had a lifetime of pioneering work on behalf of women, and she had a truly historic record of achievement there. Before she was a judge, she argued six cases involving gender discrimination before the Supreme Court and won five of them. That’s a better average than most people have.
President Clinton: (05:26)
Finally, I thought she had the ability to build common ground in a country that was already becoming increasingly polarized, to find a way whenever possible, for the court to be an instrument of our common unity in their fidelity to the Constitution. She had already proved herself to be a healer. Time and again, her moral imagination had cooled the fires of her colleagues’ discord, and ensured that jurists kept their right to dissent without entangling the court in endless animosities.
President Clinton: (06:09)
In short, I liked her and I believed in her. I just knew that she was the right person for the court. But I have to say, in the last 26 years she has far exceeded even my expectations. She’s written landmark opinions advancing gender equality, marriage equality, and rights of people with disabilities, the rights of immigrants. And she’s almost as well known for her amazing dissenting opinions.
President Clinton: (06:57)
In every case, she offers an alternative vision about how America ought to work for everybody, how it ought to be, how votes ought to be counted, not discarded, how districts should be fair. I could go on and on. There’re seven or eight of those dissents that I just read every now and then when I’m bored, and want to be reminded about why I still believe in America and the Constitution. But I have to say this. One thing I did not see coming when I nominated her, is her ascendance to pop culture icon. Her workout routine is marveled at. Hillary got me a book, The RBG Workout, and she said, “I bet you can’t do it.” I said, “Oh yeah, I can. I’m just a kid. Just 73, I can do this.” I had to workout on my weight machine and do other stuff for two months before I could complete her workout.
President Clinton: (08:20)
Regularly, she’s portrayed on Saturday Night Live, delivering her blistering Gins-burns. And now you can see her image and her quotes on T-shirts, tote bags, and coffee mugs the world over. You could become resentful of such a person. But you’re not. We like her because she seems so totally on the level, in a world hungry for people who aren’t trying to con you, who are on the level.
President Clinton: (09:16)
She spent a lifetime trying to give other people from the get-go, the opportunities she spent her early life struggling to reach. In one of her law review articles, she wrote, “The greatest figures of the American judiciary have been independent thinking individuals with open, but not empty minds. Individuals willing to listen and learn. They have exhibited a readiness to re-examine their own premises, liberal or conservative, as thoroughly as those of others.” She’s lived her life doing that. And somehow she also has found the time not only to attend just about every opera ever produced, but to actually appear on stage in some of them as well.
President Clinton: (10:12)
Not very long ago, I had the honor of going to the University of Virginia to a special symposium on the presidency. I said, “It seems to me you could define the presidency of everyone who served, by how they answered two questions connected to the oath of office.” You have to promise to protect and uphold the Constitution. And those two questions can be found in the very first phrase of the prologue, “We the People of United States, in Order to form a more perfect Union …”
President Clinton: (10:50)
The same thing could be said of Supreme Court justices. The two questions are, whose in “We the People?” And what does, “A more perfect Union” mean? I believe for Ruth Bader Ginsburg, “We the People” is all of us. And I believe that in her “more perfect Union,” all of us on equal terms, will be at home.
President Clinton: (11:27)
She’s going to be interviewed tonight by NPR’s remarkable legal affairs correspondent, and I think we reached a stage in her life when I could admit without hurting her career, one of my favorite journalists, Nina Totenberg.
President Clinton: (11:53)
Now, here’s the last thing I want to say, and I am confident I speak for everyone in this vast arena. Only one person here appointed her and one person, Senator David Pryor, voted for her, but all of us hope that she will stay on that court forever.
President Clinton: (12:24)
Ladies and gentlemen, Justice Ginsburg and Nina Totenberg.
Justice Ginsburg: (12:37)
Thank you, thank you. Please everyone, please be seated. Please be seated.
Justice Ginsburg: (12:53)
Thank you, thank you, thank you.
Nina Totenberg: (12:58)
Thank you all for coming. I think Justice Ginsburg and I have never, ever appeared before an audience this large before. I understand that normally this is, I guess recently, the Worldwide Wrestling Entertainment. We are not going to wrestle each other. We’re going to try to entertain you a bit and inform you.
Nina Totenberg: (13:38)
You’ve heard President Clinton describing his why he picked Justice Ginsburg, but I think I should start this interview asking you about that interview. So let me set the stage. The year is 1993, the new president is flirting with all manner of potential Supreme Court nominations, and the names keep getting leaked to the likes of me.
Nina Totenberg: (14:16)
Behind the scenes, the inimitable Martin Ginsburg is doing everything in his power to promote his tiny, but auspicious wife. Finally, you get a call from Bernie Nussbaum, the White House Counsel, and it’s a call that you had long hoped for, but you are in something of a fashion dilemma.
Nina Totenberg: (14:47)
So tell us about how you got the call that day, calling you to the White House, and what your fashion dilemma was.
Justice Ginsburg: (14:58)
I was called on a Saturday in Vermont, where I was to attend a wedding. Bernie Nussbaum said, “The president wants to meet you. Please come back to DC.” I said, “Well, I’ve come all this way to attend the wedding. Can I come tomorrow morning?” He said, “Fine, you go right from the airport to the White House.” I said, “But I will be wearing my traveling clothes.” “Oh, that’s okay. Because the president would be just coming off the golf course.” So I arrive in my plain clothes, and in comes a very handsome president wearing his Sunday best because he’d just come from church.
Nina Totenberg: (16:02)
So what was the conversation with the president like? What kinds of things did he ask? Did you have a good time or were you in interview agony?
Justice Ginsburg: (16:12)
No, it was very easy to talk to the president. We talked about constitutional law. After all, he was a constitutional law professor. We talked about family. And we talked about many things. I’ve had the experience, with some men, that they have certain discomfort talking to a woman. That was not that way with President Clinton.
Nina Totenberg: (16:52)
So I was told after that interview by a number of White House aides, that he just fell for you hook, line and sinker. And this afternoon when we were talking, he said, “In five minutes I had just fallen for her hook, line and sinker.”
Nina Totenberg: (17:10)
But when did you get the word? Do I recall that you got a call from Bernie Nussbaum when you were in the bathtub or something like that, that night?
Justice Ginsburg: (17:21)
It was rather late on Sunday night, and it was one of the happiest moments of my life. I was absolutely on cloud nine. And then the president said, “And tomorrow morning we will have a little ceremony in the Rose Garden, and we’d like you to make a few remarks.” So I had to down from the cloud, sit at my writing table. I liked the remarks. It was the only time in that entire episode when there was no time for White House handlers to go over what I was going to say. So it was my own words, unedited.
Nina Totenberg: (18:14)
You then went into a confirmation process. I think in the end you got, I’m not sure about this, I think there were only-
Justice Ginsburg: (18:22)
96 to three.
Nina Totenberg: (18:24)
… 96 to three. Thank you.
Nina Totenberg: (18:36)
Republicans today often cite the Ginsburg Rule. When I would go back and I read the transcript, I read about what your rule was, but it strikes me that in light of modern confirmation hearings, more modern confirmation hearings, nominees are considerably less responsive of all political stripes, not just Republican nominees. You actually answered questions about abortion, and the death penalty, and all kinds of things.
Justice Ginsburg: (19:15)
The Ginsburg Rule was that you please do not ask a question that may come before the court because then I would have to disqualify myself if I gave an answer. Because a judge is not supposed to react just off the top of her head. When a question is presented to us, we read first of all, the decisions that were written by the courts below, the trial court, court of appeals, and then we read the briefs … that are anything but brief … filed by the lawyers, and we read the relevant precedent. So to give an answer to a question without the benefit of all that reading and briefing is not what a judge to do. Still, there was a lot out there that I could be asked about because I was 17 years a law teacher, 13 years a judge on the Court of Appeals, so I had written hundreds of opinions, many articles, and anything that I had already written was fair game.
Nina Totenberg: (20:34)
So you arrive at the court, you’re the second woman, and Justice O’Connor had been there for 12 long years without you, right? What advice did she give you?
Justice Ginsburg: (20:48)
She told me just enough to enable me to navigate those early weeks. She didn’t douse me with a bucket full of information, just enough to get by. She was, I think, very pleased at a change the court made when I was appointed.
Justice Ginsburg: (21:13)
Justice O’Connor was the lone woman on the court for 12 years. In our robing room, there is a bathroom and it says “men.” For Justice O’Connor, when the need arose, she had to go all the way back to her chambers. When I came on board, they rushed a renovation. They created a women’s bathroom equal in size to the men’s.
Nina Totenberg: (21:48)
Your first opinion assigned to you was not quite what you expected, and you went to her.
Justice Ginsburg: (21:58)
Yes. The legend is that the new justice, the junior justice, will get a single issue case in which the court is unanimous. Well, Chief Justice Rehnquist gave me, as my first assignment, a miserable ERISA case. ERISA is the Employee Retirement Security Act. It is one of the most complex statutes Congress ever wrote. The court was not unanimous, divided six to three, and Justice O’Connor was on the other side. She was one of the three.
Justice Ginsburg: (22:45)
So I came to her and I said, “Sandra, he was not supposed to do that to me.” Her response, and this is typical of Justice O’Connor, she said, “Ruth, you just do it. Just do it. And get your opinion draft in circulation before he makes the next set of assignments, otherwise you will risk getting another miserable case.”
Nina Totenberg: (23:16)
I could never understand why lawyers that appeared before the court, who appeared before the court, and not people who were not accustomed to the court, but some very seasoned lawyers, would get these two women mixed up. Sandra Day O’Connor was about 5’7 or eight. You claim to be over five feet tall. She was a Western ranch girl with a Western twang. You were a New Yorker, a Brooklyn girl. I don’t know that it was a Brooklyn twang, but you were clearly an Easterner. She didn’t wear her hair the way you do. And still-
Nina Totenberg: (24:02)
Do. And still, people kept calling you Justice O’Connor and her Justice Ginsburg. Why?
Justice Ginsburg: (24:10)
Much more often, I was called Justice O’Connor. The lawyers had learned there was a woman on the court, and her name was Justice O’Connor. So when they heard a woman’s voice, it had to be Justice O’Connor, and she would sometimes respond, “I’m justice O’Connor. She’s Justice Ginsburg.” There was a lot of attention paid to the two of us and how we interacted, and one day, I think it was in USA Today, there was a headline. The headline was Rude Ruth Interrupts Sandra. Sandra had asked a question at argument. I thought she was finished, and she said, “Just a minute. I have follow-up questions.” I apologized to her, and she said, “Ruth, don’t give it another thought. The guys do it to each other all the time.”
Nina Totenberg: (25:20)
There even was a T shirt presented to the two of you I think, by… I think it was the [inaudible 00:25:28] Some group of women from Radcliffe. And one side said, “I’m Sandra, not Ruth.”
Justice Ginsburg: (25:37)
It was the National Association of Women Judges. They had a reception for the two of us, and they gave her a tee shirt that said, “I’m Sandra, not Ruth.” Mine, “I’m Ruth, not Sandra.” But if we can fast forward, I can tell you that doesn’t happen anymore, now that we are three.
Nina Totenberg: (26:06)
What kind of a difference does it make to have three?
Justice Ginsburg: (26:14)
One is the public perception. We have a line, a 10 minute line, often school children coming in and out of the court, and if they see three women… Because of my seniority, I sit next to the chief. Justice Sotomayor’s on one side, Justice Kagan on the other. So we’re one third of the court. We’re all over the bench. And as you will affirm, my sisters in law are not shrinking violence. They are very active in the colloquy that goes on in an oral argument. For the years that Justice Scalia was with us, there was kind of a competition between Justice Sotomayor and Justice Scalia, which one could ask the most questions at oral argument.
Nina Totenberg: (27:15)
You were the lone woman justice after Justice O’Connor retired. From 2006 I think the 2000… Pretty near the end of 2009. And I had the sense that you were not a very happy camper at that time.
Justice Ginsburg: (27:37)
It was a lonely position, and viewing the court, it was something wrong with the picture. The public would see these eight rather well fed men coming on the bench, and then there was this rather small woman.
Nina Totenberg: (28:12)
And did you find that even there on occasion, when you were just one, did you occasionally see that phenomenon of, you say something and nothing happens, and then 10 minutes later or five minutes later, one of your brethren says the same thing, and everybody goes, “Oh, that’s a very good idea?”
Justice Ginsburg: (28:34)
Well, that happened at conference more than once, but I would make a comment. No reaction. Then, one of my male colleagues would say basically the same thing, and people would react. “That’s a good idea. Let’s discuss it.” It’s a habit that had developed, that you don’t expect very much from a woman, so you kind of tune out when she speaks, but you listen when a male speaks. Now, I can tell you that that experience which I had as a member of the law faculty, as a member of a court of appeals, now that I have two sisters in law, it doesn’t happen.
Nina Totenberg: (29:43)
I’m going to pause here and ask you the question on people’s minds. You’ve had a lot of serious threats to your health this year. You were operated on for lung cancer in December. You have just completed three weeks of radiation treatment for an additional cancer. So how are you feeling? And excuse me, I’m really thrilled that we’re here, but why are we here? You finished radiation treatment at the end of August.
Justice Ginsburg: (30:23)
Yes. August 23rd was the last session, but I had promised the Clinton Library that I would be here, and I just was not going to… Thank you. Thank you. Thank you. And I’m pleased to say that I am feeling very good tonight.
Nina Totenberg: (31:27)
How do you keep going? I mean you have… I took a ton of briefs with me on the plane here, and I managed about an hour and a half’s worth, and then I was ready for a break. You do this when you’re sometimes feeling really rotten in the last year. How do you keep going?
Justice Ginsburg: (31:50)
I think my work is what saved me, because instead of dwelling on my physical discomforts, if I have an opinion to write or I have a brief to read, I know I’ve just got to get it done, and so I have to get over it. Well, this is another instance where I got very good advice from Justice O’Connor. Justice O’Connor had a mastectomy, and she was on the bench nine days after her surgery. She told me in my first cancer bout, it was colorectal cancer, “Ruth, you schedule your chemotherapy for a Friday. Then you can get over it Saturday and Sunday and be back in court on Monday.”
Nina Totenberg: (32:49)
But you have done this really all of your life. Cancer is not a stranger to you. Your mother died the day before your graduation. Your husband was diagnosed with testicular cancer when you were both at Harvard Law School, and you had an 18 month or two year old child at the same time, and you’re on law review? I think I often get Justice Ginsburg, just to describe what a day in her life that awful year was like, before Marty survived and beat the odds.
Justice Ginsburg: (33:37)
We took it day by day. We always believed that we would prevail, that we would beat the cancer. It was not an easy time. After he had surgery, he had massive radiation because there was no chemotherapy in those days. So he would come home, be sick, go to sleep. He’d get up about 12:00 midnight, and whatever he ate for the day, he would eat then. Then he would dictate his senior paper to me. I had no takers for all of his classes. My routine was, I would go to my classes in the morning, go to the hospital in the afternoon, come home, play with my daughter who was then two. No, Jane was three then. Put her to bed. After dinner, which was at midnight, I would then go back to the books and prepare for the next day.
Justice Ginsburg: (35:02)
So I was getting along on two hours of sleep a night for weeks on end, but we always had a positive attitude that we would live.
Nina Totenberg: (35:29)
So for your last year of law school, because Marty was a year ahead of you, you moved to New York to be with him for his job. You graduated tied for first in your class at Columbia Law School, but you couldn’t get a job. You and Justice O’Connor used to talk about how lucky that was in hindsight that couldn’t get jobs when you graduated at the tops of your respective classes.
Justice Ginsburg: (36:00)
Well, it’s an example of how something that may seem dreadful, very bad luck, turns out to be the most fortunate thing that ever happened to you. And Justice O’Connor put it this way. She said, “Suppose we had graduated from law school at a time when there was no discrimination, when women were welcome at the Bar. What would we be today? We would be retired partners from some large law firm. But that route wasn’t open to us, so we had to find another path, and that path led us to become split Supreme Court justices.”
Nina Totenberg: (37:00)
You were recommended for all kinds of clerkships. Supreme Court clerkships, court of appeals clerkships. Nobody would interview you. None of these… Because in those days, they were all men. Would interview you. You finally did get a clerkship back then thanks to the rather assertive intervention of one of your professors, who basically said to your judge, the judge who hired you, ” If you take her, and it doesn’t work out, I have a guy who I’ll send to you. He’s at a law firm now, but if you don’t, I will never send you another Columbia grad.” So you went to work for Judge Palmieri it ended up for two years, despite the fact that you had two strikes against you, where you were not only a woman, you were a mother.
Nina Totenberg: (37:56)
But one of the charming stories of this period of your life is that one of the judges who turned you down and was not interested in you was Judge Learned Hand, a very famous famous judge, and he turned you down because he said he couldn’t swear in front of you. So you pick up the story from there.
Justice Ginsburg: (38:24)
Judge Learned Hand lived one block away from the judge for whom I clerked, Judge Palmieri, and Judge Palmieri often drove Learned Hand home. When I was finished in time, I would ride uptown with them, sitting in the back seat, and this great jurist would say anything that came into his head, words that my mother never taught me. And I asked him, ” You say you won’t consider me as a clerk because you would have to censor your speech, and yet in this car, I don’t seem to inhibit you at all.” And his response was, “Young lady, I am not looking at you.”
Nina Totenberg: (39:26)
For those of you who have not seen RBG or the biopic On The Basis Of Sex, I recommend both. They provide a pretty good view of your career prior to becoming a judge and then later a Supreme Court justice. But what used to strike me when I covered your arguments, was how you had tailored your arguments. You had an all male Supreme Court, and you tailored your gender discrimination cases, the arguments in those cases, to appeal to different justices in different ways, and you often had male plaintiffs, and one of those male plaintiffs was Steven Wiesenfeld whose wife died in childbirth, and who was denied social security benefits for his remaining child who survived, even though his wife was the principal breadwinner.
Nina Totenberg: (40:35)
And you won, but there were basically three arguments that succeeded, and I wanted you to talk about how each group of justices saw it.
Justice Ginsburg: (40:46)
First, let me tell the audience how Steven Wiesenfeld came to my attention. He had written a letter to the editor, to his local paper in Edison, New Jersey, and he said, “I’ve been hearing a lot these days about women’s lib. Let me tell you my story. My wife died of an embolism just after our son was born, and I knew that there were benefits available to a sole surviving parent who had a young child, to take care of. So I went to the social security office to claim those benefits, and I was told we’re very sorry Mr. Wiesenfeld. These are mothers’ benefits. They’re not available to fathers.”
Justice Ginsburg: (41:55)
Now, it was obvious to me that although the plaintiff was a man, the discrimination was against the woman as wage earner. She paid the same social security taxes that a man would pay, but her contributions did not net for her family the same protection. So I think it was the dominant view of the court that this was really discrimination against the woman as wage earner. A few of the justices said, “No, it’s discrimination against the male as parent. He doesn’t have the option to personally care for his child.” Under the social security, you could earn a certain amount and still get the social security benefits. If you earned over the limit, the benefits would be reduced dollar for dollar.
Justice Ginsburg: (42:54)
And Wiesenfeld had figured out, I can do part-time work, earn a certain amount and keep those benefits. So, some of the justices said it’s obvious that it’s discrimination against the male as parent. He has no choice but to work full time. He doesn’t have the option to care personally for his newborn. And then there was one, who later became my chief, then justice Rehnquist who said, “It’s totally arbitrary from the point of view of the baby. Why should the baby have the opportunity for the care of a sole surviving parent only if that parent is female, and not if the parent is male?”
Justice Ginsburg: (43:44)
So it was such a wonderful illustration of how gender based discrimination hurts everyone. It hurts women, it hurts men, and children.
Nina Totenberg: (44:04)
There was a case that you had that you wanted to take to the Supreme Court, but you couldn’t because… The case involving the, I think Army or Air Force pregnant woman.
Justice Ginsburg: (44:22)
The Susan Struck case.
Nina Totenberg: (44:23)
Justice Ginsburg: (44:24)
Yes. I had hoped that that would be the first reproductive choice case that the court would hear. The case of Rose in 1971, when Captain Struck was serving in the Air Force, and she was serving abroad when she became pregnant. Pregnancy in those days was a mandatory ground for discharge. The base commander said to her, 1971, two years before Roe v. Wade, “You can have an abortion on base. We provide those for women in service, and wives of men in service. And if you do, you can remain in the Air Force. But if you choose to go through the pregnancy, you are discharged, no exceptions.”
Justice Ginsburg: (45:39)
Susan Struck said, “I’m a Roman Catholic. I cannot have an abortion, but I’ve made arrangements to have the child adopted at birth. I will cost the taxpayers nothing, because I’ll use only my accumulated leave time for the birth.” And she said, “Here we are at Kroc Air Force Base, where some of my male colleagues get hooked on alcohol or on drugs, and you don’t mandate their discharge. If they report themselves, they can be in a rehabilitation program, and you will keep them for much longer than the time I’m going to take off for this birth. It doesn’t make any sense.”
Justice Ginsburg: (46:47)
Pregnancy is a mandatory ground for discharge, and that was that. And Susan Struck brought her case in a federal district court. She lost there. Oh, by the way, she was very well represented. So she got a stay of her discharge every month. So she was always in fighting to stay in, not out, trying to get back in. Anyway, what happened… Then it went to the Court of Appeals. She lost again, but there was a very good dissenting opinion. And then I wrote a petition to the Supreme Court to hear her case. The Supreme Court said, “Yes, we’ll take it.” And then, the solicitor general at the time, who had been dean of the law school I first attended, he asked to have a meeting with the top military people and said, “This case has lost potential for the government. You should-”
Justice Ginsburg: (48:03)
… potential for the government. You should wave Captain Stuck’s discharge and then change the rule prospectively so that pregnancy is no longer an automatic discharge. The Air Force did, and then immediately, the government moved to have the case returned to the Court of Appeals for determination whether it was moot, no longer alive because she got all the relief she was seeking. She remained at an Air Force officer. So I called Captain Struck and said, “Is there anything you’re missing so that we can claim this case is still alive?” And she said, “Well, I have all my pay and allowances, so nothing there, but there is one thing.” This conversation is going on now in 1972. She said, “All my life, I’ve dreamed of becoming a pilot, but the Air Force doesn’t give flight training to women.” Then we laughed because we knew in 1972 was much too early. It was still an impossible dream to win that case. The difference between then and now is one of the reasons why I am optimistic about the future. Today, it would be unthinkable to deny flight training to women.
Nina Totenberg: (49:59)
Justice Ginsburg, this may be a little too think-y, but I think it’s important to talk about, and that is the notion of originalism versus a living constitution. A majority of the current court believes to, one degree or another, in the notion that justices should interpret the Constitution as it was meant by the Founding Fathers when it was written in the late 1700s, that the original intent is what matters, and the text as it was written, and what it was intended. You and most of the justices you have served with, at least until now, have a somewhat different take. That the Constitution was written to elastic enough as Justice Kennedy, now retired, put it to accommodate changes in society. Could you talk about your thinking a bit?
Justice Ginsburg: (51:10)
President Clinton said it so well in his introduction. Our Constitution begins with the words, We the People of the United States in Order to form a more perfect Union. So think how things were in 1787. Who were we The People? Certainly not people who are held in human bondage because the original constitution preserved slavery, and certainly not women, whenever their color, and not even men who own no property. So it was a rather elite group, We the People. But I think the genius of our Constitution is what Justice Thurgood Marshall said. He said he doesn’t celebrate the original Constitution, but he does celebrate what the Constitution has become now, well over two centuries. And that is the concept of We the People has become ever more inclusive. So people who were left out at the beginning, slaves, women, men without property. Native Americans were not part of We the People. They’re all but once left out people are part of our political constituency, and we are certainly a more perfect union as a result of that. The original Constitution preserved the slave trade until 1808. One of the provisions that’s an embarrassment is the Fugitive Slave Clause that said, if someone held as a slave escapes into a free state and the master asks to get the slave back, the slave must be returned to the master. That Fugitive Slave clause is in Article IV of the Constitution where you can still read it today, but there’ll be a star next to it saying, “Changed by the 14th Amendment,” it says.
Nina Totenberg: (54:05)
The first time I met Justice Ginsburg, it was by phone, and we were both quite young women compared to now anyway. I was a brand new Supreme Court reporter reading about the first case claiming that discrimination against women was a violation of the 14th Amendment, the first case in the Supreme Court. It was the ultimately the case that the Court first said that it was a violation of the 14th Amendment and I didn’t understand it because I said, “The 14th Amendment was enacted to cover slaves and African-Americans, and doesn’t say anything about women.” I called you up and you gave me an hour-long lecture, but I’m going to ask you for a 60-second version.
Justice Ginsburg: (55:08)
But you said, “I thought the 14th “Amendment was about race.”
Nina Totenberg: (55:12)
Justice Ginsburg: (55:13)
And I said, “Yes, it certainly is about race, but the 14th Amendment reads, ‘Nor shall any state deny to any person the equal protection of the laws.'” The first time the Supreme Court heard such an argument was in the 1870s. A woman wanted to vote and she said she was stopped at the polls. She said, “Now, I read the Constitution, and it says, ‘Nor shall any state deny to any person the equal protection of the laws.'” The cost response to her was, “You are indeed a person and you are a citizen of the United States, but so too are children, and no one would suggest that children should have the right to vote.” Court has come a long way since then. The turning point case that you asked me about was called Reed v. Reed. It was about Sally Reed who had a great tragedy in her life. She had a son. She and her husband divorced when the boy was young. Legal term is of tender years. Sally was appointed custodian of the child. When the boy reached his teens, the father went to the family court and said, “Now he needs to be prepared for a man’s world, so I should be the custodian.” Sally fought that. She thought it would not be good for her son to live in his father’s home, but she lost. Sadly, she turned out to be right. The boy was sorely depressed. One day he took out one of his father’s many guns and committed suicide. So Sally wanted to be appointed administrator of his estate to take care of whatever he left behind, which was precious little, small bank account, and guitar, some records. That was about it. She applied. Her former husband applied two weeks later, and the probate court judge said to Sally, “I’m sorry, but the law gives me no choice.” It reads, this was the law of the State of Idaho, “As between persons equally entitled to administer a decedent’s estate, equally entitled, males must be preferred to females.” The thing about Sally Reed is she was an everyday woman. She made her living by caring for elderly or disabled people in her home, but she thought an injustice had been done to her. She also believed that our legal system would write that wrong. So on her own dime, she took the case to three levels of the Idaho courts. Then I got involved in the case and wrote the brief for her Supreme Court case.
Justice Ginsburg: (59:23)
She prevailed with a unanimous decision. Case was decided in November 1971. First time in history at that Supreme Court ever held gender-based classification unconstitutional. Then after that 1971 precedent, we were on a roll. Case after case challenging gender-based classifications and challenging for-
Nina Totenberg: (01:00:03)
You can see on the basis of sex, and understand more, and RBG, and understand yet more. So speaking of children for a moment, I want to lighten this up before I close with some conversation about your late, great friend, Justice Scalia and your relationship with him. But first, could I get you to tell the story of the elevator thief?
Justice Ginsburg: (01:00:28)
Oh, the elevator thief was my then… Let’s see. How old was Jamesy? Must’ve been 11, my son. My son was a lively child. I called him lively, but his teachers called him hyperactive. His school had a hand-operated elevator. The elevator operator went out to smoke a cigarette and one of my son’s classmates dared him to take the kindergartners from the ground floor up to the top. So my son did that, and he was greeted by three stone faces: the room teacher, the school principal, the school psychologist, and I was called.
Justice Ginsburg: (01:01:28)
I was getting calls about once a month to come down to the school to hear about my son’s latest escapade. Well, one day, I was in my office at Columbia Law School and feeling particularly weary because I’d stayed up all night writing a brief. I said to the caller, “This child has two parents. Please alternate calls. It’s his father’s turn.” So, Marty, my husband, went down to the school, and was told, “Your son stole the elevator.” My husband, who had a wonderful sense of humor said, “So he stole the elevator. How far could he take it?”
Justice Ginsburg: (01:02:35)
Now, I don’t know if it was Marty’s sense of humor. I suspect it was at the school was very hesitant to take a man away from his work. There was no quick change in my son’s behavior, but the calls came barely once a term because they had to think twice before calling a man away from his work.
Nina Totenberg: (01:03:04)
You and the late Justice Scalia used to spar incessantly about the whole subject of originalism versus the living Constitution and textualism, but you were great friends for many decades. You served on the same Court of Appeals. You’d known each other even I think at the University of Chicago briefly. So let me start with that personal friendship. People seem always so surprised that Justice Scalia, this iconic conservative, and Justice Ginsburg, this iconic feminist, were such good friends. I know that you really loved him. So what did you love about him?
Justice Ginsburg: (01:03:59)
He had a marvelous sense of humor. When we were on the Court of Appeals together, Court of Appeals has three judges, and he would sit next to me. He’d whisper something during the arguments that absolutely cracked me up and that all I could do to avoid bursting out into hysterical laughter. One thing that we had in common, we both worked very hard on our opinions. We tried to write them so at least judges, and other lawyers, and hopefully, a larger public could understand what we were saying.
Justice Ginsburg: (01:04:46)
Justice Scalia was the son of a Latin professor at Brooklyn College and his mother was a grade-school teacher, so he was an expert grammarian. He would sometimes come to my chambers or call me and say, “Ruthie made a grammatical error. I don’t want to embarrass you by sending you a note that would be circulated to all of our colleagues, but you should fix this up.” I would call him and say, “This opinion is so strident. You’re not going to be as persuasive as you would be if you would tone it down.” He never, never took that advice. We really cared about family. We spent every New Year’s together, the two couples, plus as many… He had many more children than I did, but whatever children wanted to come along. And Justice Scalia and I shared a passion for opera. So we were supers, extras, and a couple of opera performances at the Washington National Opera.
Nina Totenberg: (01:06:08)
Am I making this up or did you sit on his lap in one of those?
Justice Ginsburg: (01:06:12)
No. The soprano sat on his lap. He knew that she was going to end the song on his lap, but what he didn’t know is she was going to throw her arms around him and give him a big kiss.
Nina Totenberg: (01:06:28)
And you traveled together. There’s a very funny picture in your chambers of the two of you on a…
Justice Ginsburg: (01:06:35)
We traveled to India for a judicial exchange. The two of us broke away from the pack for a couple of days, and we went to Rajasthan and to Agra. There was a famous picture. We’re in the Rambagh Palace in Rajasthan, a very beautiful… It was the Palace of the last Maharaja of Rajasthan. So there was a very elegant elephant, very beautifully painted elephant. We were taking a ride on the elephant. I’m sitting in the back, and Scalia is in the front. My feminist friends said, “Horrors. What are you doing sitting in the back of the elephant?” And I explained it had to do with the distribution of weight.
Justice Ginsburg: (01:07:32)
There is an opera, as you would expect, a comic opera about the two of us. It’s called Scalia/Ginsburg. Again, why Scalia first? Because in our workplace, seniority really counts, and he was appointed some years before I was. So the opera tries to portray the difference between us. Scalia’s opening aria is a rage aria. It goes like this, “The justices are blind. How can they possibly spout this? The constitution says absolutely nothing about this.” Then I answer, “Dear, Justice Scalia-”
Nina Totenberg: (01:08:40)
Oh, but you come in through a glass ceiling.
Justice Ginsburg: (01:08:43)
Oh, that’s later.
Nina Totenberg: (01:08:44)
Oh, that’s later.
Justice Ginsburg: (01:08:44)
This is the-
Nina Totenberg: (01:08:45)
Sorry. I screwed up the story.
Justice Ginsburg: (01:08:48)
This was the beginning. We set up the different ways we approach a legal text. I said, “You’re searching for a bright-line solution to problems that don’t have easy answers, but the great thing about our Constitution is that like our society, it can evolve.” And then there’s a jazz riff with, “Let it grow. Let it grow.” The plot is roughly based on The Magic Flute. Justice Scalia is locked in a dark room. He’s being punished for excessive dissenting. That’s when I enter through a glass ceiling to help him pass the tests he needs to pass to get out of the dark room.
Justice Ginsburg: (01:09:50)
Then a character called the Commendatore who is borrowed from Don Giovanni is appalled. He said, ” Why would you want to help him? He’s your enemy.” And I explain, “He’s not my enemy. He’s my dear friend.” Then we sing a wonderful duet. It’s titled We are different, we are one, different in our approach to reading a legal text, but one in our reverence for the Constitution and for the institution we serve.
Nina Totenberg: (01:10:32)
Well, Justice Ruth Bader Ginsburg, dear notorious one, we thank you for a wonderful evening.
President Clinton: (01:10:58)
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