My Own Words Read online

  Twentieth Anniversary of Women’s Law and Public Policy Fellowship Program

  Georgetown University Law Center

  September 25, 2003

  Well, as you heard, I am involved in tax law and when Wendy Williams and Mary Hartnett asked me to speak at what they said was appropriate length on what they termed my favorite subject naturally I prepared a lengthy discourse addressing the Supreme Court’s performance in tax cases. Sadly, Wendy reacted with unexpected hostility and so instead I am going to speak a few minutes only about my life with Honorable Ruth. But you are the losers because, I promise you, the Supreme Court’s performance in tax cases is exceedingly funny.

  Well, we travel a lot. Our travels, like our life in the District of Columbia, afford memorable moments. In December 2000, just after Bush v. Gore, Ruth and I were in New York City to see the play Proof. And after the first act intermission, as we walked down the aisle to our seats, what seemed like the entire audience began to applaud, many stood, Ruth beamed. I beamed, too, leaned over, and whispered loudly, “I bet you didn’t know there’s a convention of tax lawyers in town.” Well, without changing her bright smile, Ruth smacked me right in the stomach, but not too hard. And I give you this picture because it fairly captures our nearly fifty-year happy marriage, during which I have offered up an astonishing number of foolish pronouncements with absolute assurance, and Ruth, with only limited rancor, has ignored almost every one.

  A few years ago, speaking of Ruth, who in 1972 was his first Columbia Law School tenure hire, Mike Sovern, former dean and president of Columbia, marvelously commented that he had known Ruth for so long it had begun before either of them was worth cultivating. I’m not sure that was really true about Ruth and Mike but it certainly fits Ruth and me. We met as undergraduates at Cornell University on a blind date in 1950, she newly arrived and I one year ahead. The truth is, it was a blind date only on Ruth’s side. I cheated. I asked a classmate to point her out in advance. “Oh she’s really cute,” I perceptively noticed, and then after a couple of evenings out, I added, “And, boy, she’s really, really smart.” And of course I was right on both counts.

  And in the intervening fifty-three years, nothing changed. I will skip over those intervening years because you are old friends and you know about us, and, indeed, if you are not all old friends, you likely know the essentials, courtesy of an interview our dear daughter, Jane, a serpent’s tooth if ever there was, volunteered to the press a decade ago. All smiles, Professor Jane announced she had grown up in a home in which responsibility was equally divided: her father did the cooking, she explained, and her mother did the thinking. It was Jane’s press statement that convinced me truth should not be allowed as a defense in defamation actions.

  Twenty years ago, in celebrating Ruth’s then fiftieth birthday, her D.C. Circuit clerks asked lots of Ruth’s friends and acquaintances to write “when-I-think-of-Ruth-Bader-Ginsburg” letters for compilation in a book of warm recollections. Jane, for example, contributed what she described as Mother’s extraordinary pot roast recipe. It was horrifyingly accurate and extraordinarily funny. Ruth is no longer permitted in the kitchen. This by the demand of our children, who have taste.

  To my mind, however, the very best letter was contributed by Anita Escudero, my wonderful secretary from pre-teaching days when I was a New York City lawyer. Anita, I should explain, was the world’s fastest typist. She had been a world-class flamenco dancer in her youth; think about that! In any event, she wrote from what was special personal experience of the impact of Ruth’s 1970s efforts to advance gender equality, and because her letter is far better than anything I might write or ever have, I propose to read, in its brief entirety, this previously unpublished grand testimonial to my wife’s pre-judicial influence on American life:

  When I think of Ruth Bader Ginsburg, I think of the words sexual and gender. Gender-Based Discrimination was a book I typed for her when I arrived in New York. I had been in New York only a very short time. Born in Arizona, I lived most of my life in Spain and South America. My family needed money and I got a job at a law firm typing in the steno pool. One morning, RBG’s husband walked in and handed me 100 pages of handwritten material dealing with sex discrimination, abortion, and so on. I was horrified. The words female and male loomed out at me. I had never seen or heard them used the way she used them. I had never even thought about those distinctions. I started typing.

  Over the next few months in walked this shirtsleeved lawyer with his yellow pad of handwritten notes on this nonsensical subject of sex discrimination. Poverty abounded in great America and I kept typing. One morning the shirtsleeved lawyer announced, “My wife is coming in.” I thought, “Good God, here she comes, the weird one.” In walked this little five-foot, 100-pound woman with a soft voice wearing a green dashiki and I thought, “It can’t be the same woman. She’s not supposed to look like that. She’s supposed to look like George Sand. Where’s the cigar? The fly on her pants?” I kept typing.

  I went to Seville, Spain, on vacation with my family, where I have a home. We were invited to a large cocktail party and the room was full of males and females. In walked Anita with her husband. The host presented him: “Don Mario Escudero.” Don Mario in turn said, “Esta es mi mujer”—“This is my woman.” I threw my chest out and said, “I am not your woman, I am a person! My name is Anita L’Oise Ramos Mosteiro de Escudero!” From the back of the room boomed the host’s eighty-year-old grandmother: “¡Viva America!” I had been converted through typing.

  Well, whether through typing, reading, listening, [or] arguing, Ruth’s work in the 1970s as a teacher and a litigator converted multitudes, including, as we all know, that largest of multitudes, a majority of the Supreme Court. And if Ruth, in 1980, at age forty-seven, retired to a life of TV and bonbons, she would have enjoyed a significant place in twentieth-century history—although with those bonbons a rather fat place.

  Well, of course, she did not retire or get fat. She went on to better work. Thirteen years on the D.C. Circuit, where, to take but one example, her efforts on behalf of the ICC’s filed rate doctrine will never be forgotten. Rather more important work over the past ten years at the Marble Palace, efforts on behalf of everybody, everyone I guess except the ICC, long departed. In all events, we celebrate this evening a grand performance born of great intelligence, fine judgment, personal warmth, unremittingly hard work, and an advantageous marriage, which is just what I expected after our second date fifty-three years ago. The next decade with only a little luck I am sure will be even better.

  I introduce to you the Honorable Ruth Ginsburg.

  Ruth and Marty embrace while attending an event.

  Ruth and Marty together at Marty’s home, following their engagement party, which was held at the Persian Room of the Plaza Hotel in New York City on December 27, 1953.

  5

  Law and Lawyers in Opera

  RUTH GINSBURG’S fondness for music and especially opera, which she shared with Marty and later, famously, with Justice Antonin Scalia, began at an early age. Ruth played piano in her grade school orchestra, conducted by Miss Murphy. “Others in the orchestra had more talent,” she says, “but I tried hard.” 1 She would ride the subway from her home in Brooklyn to her piano teacher’s studio on West 73rd Street in Manhattan for lessons. Ruth’s mother and her aunt Cornelia often took Ruth and her cousins to Saturday matinees for children at the Brooklyn Academy, ballet and opera performances at the City Center, and child-friendly hour-long operas conducted and narrated for children by orchestra conductor Dean Dixon. The first opera Ruth ever attended was a Dean Dixon children’s version of La Gioconda, where she was enthralled by the singing and captivated by the characters: two rivaling beauties; the evil scorned spy; the vengeful betrayed husband; the blind pious mother; and the handsome sea captain, a nobleman in disguise.

  Justice Ginsburg has often said that if she could have chosen any profession she would have loved to be a diva, but she lacked the talent. Despite
having to “settle” for her current position as a Supreme Court Justice, she has had the chance to take to the stage, too, in three cameo appearances as a “super” at the Washington National Opera. She debuted in 1994, along with Justice Scalia, in a production of Richard Strauss’ Ariadne auf Naxos, and again when that opera was performed in 2009. She was also onstage in 2003 in Johann Strauss’ Die Fledermaus, together with Justices Anthony Kennedy and Stephen Breyer: the three black-robed Justices appeared at Prince Orlofsky’s ball as specially announced guests, “The Supremes,” while Placido Domingo serenaded them. Imagine Justice Ginsburg’s delight and surprise when, in 2011, she traveled to Harvard to accept an honorary degree and fellow awardee Plácido Domingo serenaded her as part of the degree conferral.

  Justice Ginsburg is serenaded by opera singer Plácido Domingo while the two receive honorary degrees from Harvard on May 26, 2011.

  In the following remarks, Justice Ginsburg reflects on ways in which the law and lawyers have been portrayed in various operas.

  Law and Lawyers in Opera

  Remarks for WFMT Radio BroadcastI

  Chicago, Illinois

  September 21, 2015

  Truth be told, lawyers do not figure nobly in opera plots. They show up most often as notaries authenticating documents, mainly marriage contracts, and have few notes to sing. There are bit parts for lawyers in Fledermaus and Porgy and Bess. Dr. Blind, the lawyer in Fledermaus, is so ineffective he gains for his client, Eisenstein, a few extra days in jail. And the lawyer in Porgy and Bess offers Bess a divorce for a dollar, then ups the price to $1.50 when Bess tells him she was never really married before.

  Law enforcement does figure importantly in many an opera plot. Prisons are a favorite setting for doleful arias and duets that sometimes run on rather long. Regular opera goers will think immediately of Fidelio, Trovatore, Don Carlos, Faust, Tosca, Dialogues of the Carmelites, more recently, Dead Man Walking, and scores more.

  Law enforcement in Bizet’s Carmen is in a lighter vein. It involves a jail order, not a prison sentence, and portrays a plea bargain of an unusual sort. In Act I Carmen has assaulted and wounded a coworker in a Seville cigarette factory. To punish her for that infraction, the captain of the brigade orders Don José, the hapless tenor, to cart Carmen off to jail. En route, she negotiates a deal. If Don José allows her to escape, she will sing and dance for him at the cabaret owned by her friend, Lillas Pastia. As the opera progresses, Carmen gets her man, then she does him woefully wrong.

  Contracts are prominent in opera plots. The sturm und drang in Wagner’s Ring cycle stem from a breach of contract: Wotan’s attempt to renege on his agreement to compensate the giants, Fafner and Fasolt, for building Valhalla, heavenly home of the Gods. The centrality of contract in the Ring was brought home to me vividly some years ago when a law clerk applicant submitted as his writing sample an essay titled: “The Significance of Contract, as Played Out in Wagner’s Ring Cycle.” What better illustration of the well-known legal maxim, pacta sunt servanda, in plain English, agreements must be kept. I hired that law clerk applicant on the spot.

  Trials and inquests abound in grand opera. A select few: a Revolutionary Tribunal condemns the poet Andrea Chenier; in Aida, the priests of the immense God Phtah condemn Radames for treason; in Norma, the pagan throng lets the high priestess burn for breaking her vow of chastity.

  A shipboard court-martial takes place in Benjamin Britten’s Billy Budd. Some background for the scene. Billy is as good as he is beautiful. He is relentlessly pursued by First Officer John Claggert, who epitomizes evil. Claggert falsely accuses Billy as the ringleader of a planned mutiny. Billy has a tendency to stutter when agitated, and cannot get out words answering the accusation. He strikes Claggert, and the blow results in the officer’s death. A drumhead court convened by ship-captain Vere finds Billy guilty, and sentences him to death, to be carried out on deck the following morning. Captain Vere accepts the court-martial’s verdict.

  But first, let me tell you of the model for Captain Vere. Author of the novella on which the opera is based, Herman Melville, had a father-in-law, Lemuel Shaw, an abolitionist at heart, but also a judge in Massachusetts obliged by his oath to enforce the Fugitive Slave Law implementing the Constitution’s Fugitive Slave Clause. A conflict of the same order confronts Captain Vere. He knows Billy is good, and Claggert evil and untrustworthy, yet the law requires that a sailor found guilty of assaulting a superior officer hang from the yardarm. Captain Vere agonizes over his decision to convict, a classic conflict between man’s law and divine justice.

  Jake Heggie’s Dead Man Walking portrays a man convicted of murder. Unlike Billy Budd, Joseph DeRocher, the condemned man, has indeed done a terrible thing. But, his mother asks in a moving aria, what does killing him accomplish? Some modern-day context follows.

  On June 29, 2015, the last opinion announcement day of the Supreme Court’s 2014–15 Term, the Court upheld lethal injection, as currently compounded and administered, as a permissible means of carrying out the death penalty. The vote was 5–4. I joined Justice Breyer’s separate dissent, which addressed a more basic question: whether the death penalty, whatever the means employed, is itself unconstitutional. What had experience shown since 1976 when, after a four-year hiatus, the Court allowed states to reinstate the death penalty? Justice Breyer listed four considerations.

  First, reliability or accuracy. Post-1976, more than 100 individuals convicted of capital crimes (and sentenced to death) were later fully exonerated, some of them years after their executions took place.

  Second, arbitrariness. Factors that should not affect imposition of the death penalty, studies documented, often do, prime among those factors, race and geography.

  Third, a matter of time. The average execution occurs some eighteen years after the individual was sentenced to death. Part of the reason for the long delays is the multiple opportunities for appeal available to prisoners sentenced to death. Delay thus might be regarded as a self-inflicted wound. Yet conditions during the wait can be cruel, especially if the waiting time is spent in solitary confinement. What is the alternative to delay? In 2014, a man on death row was exonerated by DNA evidence after spending thirty years on death row. If his sentence had been carried out swiftly, or in ten, even twenty years, he would not have lived to know of his exoneration.

  Fourth, perhaps in light of the first three considerations, the incidence of the death penalty has steeply declined. Nineteen states have abolished it, including most recently, Nebraska, by ballot initiative. In 2014, only seven states conducted executions. In forty-three states, there were none. Moreover, the practice is largely confined to a small and diminishing subset of counties.

  Ultimately, the considerations Justice Breyer discussed at length may bring us back to the years 1972–76, when no executions took place in the United States.

  When must the law be interpreted strictly, and when should there be some elasticity, room for common sense? In the Supreme Court’s 2014–15 Term, that dichotomy between literal and purposive reading of the law was evident in some dueling opinions, as it is in diverse operatic scenes. Though they wrote operettas, not grand operas, no team rivals Gilbert and Sullivan in treating law and lawyers satirically. On the distinction between strict and sensible construction of legal texts, Pirates of Penzance provides a most apt example.

  The operetta’s hero, Frederic, when he was a little lad, was, on his father’s instruction, to be apprenticed to a pilot. Frederic’s nursemaid, Ruth, was a little hard of hearing, so she apprenticed Frederic to a pirate, instead of to a pilot. The terms of the apprenticeship, Frederic would serve the pirates until his twenty-first birthday. When Frederic has lived twenty-one years, he is released from the pirate band, and promptly undertakes to annihilate his former comrades, in league with his father-in-law to be, a character who is the very model of a modern major general.

  But the Pirate King, and hard-of-hearing nursemaid Ruth, now serving as the Piratical Maid of Allworks, pay a
visit to Frederic. They know he likes jokes, and have come to tell him of “a most amusing paradox.” Frederic was born in a leap year, on the twenty-ninth of February. Strict construction of the text of his bond would make Frederic a lad of five and a little bit over. Purposive interpretation would count his years on earth and acquit him of his obligation to the pirates.

  There is a happy ending. It turns out that the pirates were lapsed members of the peerage. They return to their former stations as members of the House of Lords, for above all else, pirates, policemen, and everyone else onstage unite in fidelity to their Queen.

  There is a similar reconciliation in a new opera by composer/librettist Derrick Wang, titled Scalia/Ginsburg. [For an excerpt, see p. 43.] It is a comic opera that had its world premiere at the Castleton, Virginia, festival on July 11, 2015. Composer-librettist Wang wrote a duet for Justice Scalia and me. It is titled “We Are Different, We Are One.” Different on questions of major import, but one in our reverence for the institution we serve. Never mind the words of some spicy opinions, we genuinely respect and like each other. Collegiality of that sort is what makes it possible for the Court to do the ever-challenging work the Constitution and Congress assign to us, without the animosity that currently mars the operation of the political branches of our government.

  * * *

  I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. In this particular broadcast, she was accompanied by young singers from the Chicago Lyric Opera’s Ryan Center, who performed several pieces. We have removed specific references to the Ryan Center singers and have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.