My Own Words Read online

  Justice Ginsburg speaks at the Conference of Court Public Information Officers in the West Conference Room at the Supreme Court on August 8, 2011.

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  Contents

  A Note on Sources

  Preface by Ruth Bader Ginsburg

  Timeline

  * * *

  Part One  Early Years and Lighter Side

  * * *

  Introduction

  1. Editorial for the School Newspaper

  (Highway Herald)

  2. One People

  (Editorial, East Midwood Bulletin)

  3. Wiretapping: Cure Worse than Disease?

  (Letter to the Editor, Cornell Daily Sun)

  4. Marty Ginsburg’s Favorite Subject

  (Remarks Introducing Justice Ginsburg)

  5. Law and Lawyers in Opera

  6. Remembering Justice Scalia

  7. The Scalia/Ginsburg Opera

  8. The Lighter Side of Life at the Supreme Court

  * * *

  Part Two  Tributes to Waypavers and Pathmarkers

  * * *

  Introduction

  1. Belva Lockwood

  2. Women’s Progress at the Bar and on the Bench

  3. From Benjamin to Brandeis to Breyer: Is There a Jewish Seat on the United States Supreme Court?

  4. Three Brave Jewish Women

  5. Sandra Day O’Connor

  6. Gloria Steinem

  7. Remembering Great Ladies: Supreme Court Wives’ Stories

  * * *

  Part Three  On Gender Equality: Women and the Law

  * * *

  Introduction

  1. Women and the Law: A Symposium Introduction

  2. How the Tenth Circuit Court of Appeals Got My Wife Her Good Job

  3. The Frontiero Reply Brief

  4. The Need for the Equal Rights Amendment

  5. The VMI Bench Announcement

  6. Advocating the Elimination of Gender-Based Discrimination

  * * *

  Part Four  A Judge Becomes a Justice

  * * *

  Introduction

  1. Rose Garden Acceptance Speech

  2. Senate Confirmation Hearing Opening Statement

  * * *

  Part Five  The Justice on Judging and Justice

  * * *

  Introduction

  1. Workways of the Supreme Court

  2. Judicial Independence

  3. Tribute to Chief Justice Rehnquist

  4. The Madison Lecture: Speaking in a Judicial Voice

  5. “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication

  6. Human Dignity and Equal Justice Under Law

  a. Brown v. Board of Education in International Context

  b. Remarks on Loving v. Virginia

  c. Remarks on the Value of Diversity: International Affirmative Action

  7. The Role of Dissenting Opinions

  a. Remarks on the Role of Dissenting Opinions

  b. Bench Dissent Announcements (Ledbetter, Vance, Shelby County, Fisher, National Federation of Independent Business, Hobby Lobby, Carhart)

  8. Highlights of the U.S. Supreme Court’s 2015–16 Term

  Conclusion

  Photographs

  Acknowledgments

  About the Authors

  Notes

  Index

  Illustration Credits

  To Marty, dear partner in life and constant uplifter

  A Note on Sources

  MY OWN WORDS includes a variety of materials, including speeches that have no citations, and legal briefs and law review articles that are rife with citations. Our publisher recommended that instead of including the full citations in the print edition of the book, it would benefit the environment and most of our readers to instead house the majority of the legal citations from briefs and articles on the book’s website MyOwnWordsBook.com. We have retained notes from the introductory text and the Scalia/Ginsburg opera excerpt in the print edition.

  Preface

  MAY I TELL YOU, good readers, how this book came to be. In the summer of 2003, Wendy Williams and Mary Hartnett visited me in chambers. They had a proposal: “People will write about you, like it or not. We suggest that you name as your official biographers authors you trust. The two of us volunteer for that assignment.” Wendy and I were in the same line of business in the 1970s. We were engaged in moving the law in the direction of recognizing women’s equal-citizenship stature. Wendy was a founder of the San Francisco–based Equal Rights Advocates. I was on the opposite coast as cofounder of the American Civil Liberties Union’s Women’s Rights Project. We understood and aided each other’s public education, legislative, and litigation efforts. Wendy and I remained in close touch when she joined the faculty of Georgetown University Law Center. Mary was an adjunct professor at the Law Center, and director of the center’s Women’s Law and Public Policy Fellowship Program. Well traveled, wise, and what the French call sympathique, Mary seemed to me a fit partner for Wendy in the biographical venture. Without hesitation, I said yes to their proposal.

  My Own Words would follow after publication of the biography, we anticipated. But as my years on the Court mounted, Wendy and Mary thought it best to defer final composition of the biography until my Court years neared completion. So we flipped the projected publication order, releasing first the collection now in your hands.

  “Did you always want to be a judge” or, more exorbitantly, “a Supreme Court Justice?” Schoolchildren visiting me at the Court, as they do at least weekly, ask that question more than any other. It is a sign of huge progress made. To today’s youth, judgeship as an aspiration for a girl is not at all outlandish. Contrast the ancient days (the fall of 1956) when I entered law school. Women were less than 3 percent of the legal profession in the United States, and only one woman had ever served on a federal appellate court.I Today about half the nation’s law students and more than one-third of our federal judges are women, including three of the nine Justices seated on the U.S. Supreme Court bench. Women hold more than 30 percent of U.S. law school deanships and serve as general counsel to 24 percent of Fortune 500 companies. In my long life, I have seen great changes!II

  How fortunate I was to be alive and a lawyer when, for the first time in U.S. history, it became possible to urge, successfully, before legislatures and courts, the equal-citizenship stature of women and men as a fundamental constitutional principle. Feminists, caring men among them, had urged just that for generations. Until the late 1960s, however, society was not prepared to heed their plea.III

  What enabled me to take part in the effort to free our daughters and sons to achieve whatever their talents equipped them to accomplish, with no artificial barriers blocking their way? First, a mother who, by her example, made reading a delight and counseled me constantly to “be independent,” able to fend for myself, whatever fortune might have in store for me. Second, teachers who influenced or encouraged me in my growing-up years. At Cornell University, professor of European literature Vladimir Nabokov changed the way I read and the way I write. Words could paint pictures, I learned from him. Choosing the right word, and the right word order, he illustrated, could make an enormous difference in conveying an image or an idea. From constitutional law professor Robert E. Cushman and American Ideals pr
ofessor Milton Konvitz I learned of our nation’s enduring values, how our Congress was straying from them in the Red Scare years of the 1950s, and how lawyers could remind lawmakers that our Constitution shields the right to think, speak, and write without fear of reprisal from governmental authorities.IV

  At Harvard Law School, Professor Benjamin Kaplan was my first and favorite teacher. He used the Socratic method in his civil procedure class always to stimulate, never to wound. Kaplan was the model I tried to follow in my own law teaching years, 1963–80. At Columbia Law School, professor of constitutional law and federal courts Gerald Gunther was determined to place me in a federal court clerkship, despite what was then viewed as a grave impediment: on graduation, I was the mother of a four-year-old child. After heroic efforts, Gunther succeeded in that mission. In later years, litigating cases in or headed to the Supreme Court, I turned to Gunther for aid in dealing with sticky issues, both substantive and procedural. He never failed to help me find the right path.

  Another often-asked question when I speak in public: “Do you have some good advice you might share with us?” Yes, I do. It comes from my savvy mother-in-law, advice she gave me on my wedding day. “In every good marriage,” she counseled, “it helps sometimes to be a little deaf.” I have followed that advice assiduously, and not only at home through fifty-six years of a marital partnership nonpareil. I have employed it as well in every workplace, including the Supreme Court of the United States. When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.

  Advice from my father-in-law has also served me well. He gave it during my gap years, 1954–56, when husband Marty was fulfilling his obligation to the Army as an artillery officer at Fort Sill, Oklahoma. By the end of 1954, my pregnancy was confirmed. We looked forward to becoming three in July 1955, but I worried about starting law school the next year with an infant to care for. Father’s advice: “Ruth, if you don’t want to start law school, you have a good reason to resist the undertaking. No one will think the less of you if you make that choice. But if you really want to study law, you will stop worrying and find a way to manage child and school.” And so Marty and I did, by engaging a nanny on school days from 8:00 a.m. until 4:00 p.m. Many times after, when the road was rocky, I thought back to Father’s wisdom, spent no time fretting, and found a way to do what I thought important to get done.

  Work-life balance was a term not yet coined in the years my children were young; it is aptly descriptive of the time distribution I experienced. My success in law school, I have no doubt, was due in large measure to baby Jane. I attended classes and studied diligently until four in the afternoon; the next hours were Jane’s time, spent at the park, playing silly games or singing funny songs, reading picture books and A. A. Milne poems, and bathing and feeding her. After Jane’s bedtime, I returned to the law books with renewed will. Each part of my life provided respite from the other and gave me a sense of proportion that classmates trained only on law studies lacked.

  I have had more than a little bit of luck in life, but nothing equals in magnitude my marriage to Martin D. Ginsburg. I do not have words adequate to describe my supersmart, exuberant, ever-loving spouse. He speaks for himself in two selections chosen for this book.V Read them and you will see what a special fellow he was. Early on in our marriage, it became clear to him that cooking was not my strong suit. To the everlasting appreciation of our food-loving children (we became four in 1965, when son James was born), Marty made the kitchen his domain and became Chef Supreme in our home, on loan to friends, even at the Court.VI

  Marty coached me through the birth of our son, he was the first reader and critic of articles, speeches, and briefs I drafted, and he was at my side constantly, in and out of the hospital, during two long bouts with cancer. And I betray no secret in reporting that, without him, I would not have gained a seat on the U.S. Supreme Court. Then–Associate White House Counsel Ron Klain said of my 1993 nomination: “I would say definitely and for the record, though Ruth Bader Ginsburg should have been picked for the Supreme Court anyway, she would not have been picked for the Supreme Court if her husband had not done everything he did to make it happen.”VII That “everything” included gaining the unqualified support of my home state senator Daniel Patrick Moynihan and enlisting the aid of many members of the legal academy and practicing bar familiar with work I had done.VIII

  I have several times said that the office I hold, now for more than twenty-three years, is the best and most consuming job a lawyer anywhere could have.IX The Court’s main trust is to repair fractures in federal law, to step in when other courts have disagreed on what the relevant federal law requires. Because the Court grants review dominantly when other jurists have divided on the meaning of a statutory or constitutional prescription, the questions we take up are rarely easy; they seldom have indubitably right answers. Yet by reasoning together at our conferences and, with more depth and precision, through circulation of, and responses to, draft opinions, we ultimately agree far more often than we divide sharply. Last Term (2015–16), for example, we were unanimous, at least on the bottom-line judgment, in 25 of the 67 cases decided after full briefing and argument. In contrast, we divided 5–3 or 4–3 (Justice Scalia’s death reduced the number of Justices to eight) only eight times.X

  When a Justice is of the firm view that the majority got it wrong, she is free to say so in dissent. I take advantage of that prerogative, when I think it important, as do my colleagues.XI Despite our strong disagreements on cardinal issues—think, for example, of controls on political campaign spending, affirmative action, access to abortion—we genuinely respect each other, even enjoy each other’s company. Collegiality is key to the success of our mission. We could not do the job the Constitution assigns to us if we didn’t—to use one of Justice Scalia’s favorite expressions—“get over it!” All of us revere the Constitution and the Court. We aim to ensure that when we leave the Court, the third branch of government will be in as good shape as it was when we joined it.

  Earlier, I spoke of great changes I have seen in women’s occupations. Yet one must acknowledge the still bleak part of the picture. Most people in poverty in the United States and the world over are women and children, women’s earnings here and abroad trail the earnings of men with comparable education and experience, our workplaces do not adequately accommodate the demands of childbearing and childrearing, and we have yet to devise effective ways to ward off sexual harassment at work and domestic violence in our homes. I am optimistic, however, that movement toward enlistment of the talent of all who compose “We, the People,” will continue. As expressed by my brave colleague, the first woman on the Supreme Court of the United States, Justice Sandra Day O’Connor:

  For both men and women the first step in getting power is to become visible to others, and then to put on an impressive show. . . . As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.XII

  I heartily concur in that expectation.

  Ruth Bader Ginsburg

  July 2016

  * * *

  I. Florence Allen, appointed by President Franklin D. Roosevelt to the U.S. Court of Appeals for the Sixth Circuit in 1934.

  II. See “Women’s Progress at the Bar and on the Bench,” p. 69.

  III. See “Advocating the Elimination of Gender-Based Discrimination: The 1970s New Look at the Equality Principle,” p. 154.

  IV. See “Wiretapping: Cure Worse than Disease?,” p. 20.

  V. See “Marty Ginsburg’s Favorite Subject,” p. 25; “How the Tenth Circuit Court of Appeals Got My Wife Her Good Job,” p. 126.

  VI. As a memorial to Marty, the spouses of my colleagues, under the superintendence of Martha-Ann Alito, compiled and published, the year after his death, a collection of his recipes titled Chef Supreme (Washington, DC: Supreme C
ourt Historical Society, 2011).

  VII. Interview by Mary Hartnett with Ron Klain (Nov. 30, 2007) (on file with authors).

  VIII. For Marty’s own account, see “Some Reflections on Imperfection,” 39 Arizona State Law Journal 949 (2007).

  IX. See “Workways of the Supreme Court,” p. 201.

  X. See “Highlights of the U.S. Supreme Court’s 2015–16 Term,” p. 317.

  XI. See “Remarks on the Role of Dissenting Opinions,” p. 278.

  XII. See “Sandra Day O’Connor,” p. 89.

  Timeline

  1933

  March 15: Joan Ruth Bader born in Brooklyn, New York.

  1934

  June 6: Older sister Marilyn Bader dies of meningitis at the age of six.

  1938

  Enters kindergarten at Public School 238 in Brooklyn. Because several students in her class are named Joan, starts going by “Ruth” in school and is nicknamed “Kiki” at home.

  1946

  Graduates from PS 238 and enters James Madison High School in Brooklyn. Mother Celia is diagnosed with cancer.

  1950

  Sun., June 25: Mother dies of cancer.

  Tues., June 27: High school graduation (does not attend due to mother’s death).

  1950–54

  Attends Cornell University.

  Fall of 1950: Meets Martin D. (“Marty”) Ginsburg on a blind date.

  June 14, 1954: Graduates from Cornell.

  June 23, 1954: Marries Marty in his parents’ Long Island home.

  1954–56

  Lives in Fort Sill, Oklahoma, where Marty fulfills Army service as artillery school instructor. Works in several clerical positions including at Lawton, Oklahoma, Social Security office.