My Own Words Read online

  Can you honestly say we’d have led better 52 lives?

  (A short cadenza, which leads to a gospel-pop ballad)

  And we can’t wait for slow legislation

  To catch up with the lives that we already lead;

  We have rights, and they need preservation,

  And we have to remember this if we intend to succeed:

  Though we won’t be afraid of forgiving,

  We must not stop in our mission to right every wrong—

  Not until We the People and our Constitution are living 53

  In a nation, in a place

  That, regardless of station or race,

  Is a nation where all of us truly belong! 54

  (À la Verdi)

  So, until every person is treated as equal

  Well beyond what the Founders initially saw,

  Let our past and our present be merely the prequel

  To a future enlightened by flexible law!

  (Roulades in all three styles: opera, jazz and pop)

  Law, law, law!

  • • •

  13. Recitative: “I asked for silence” (Commentator)

  . . . An uncomfortably long silence. Then:

  COMMENTATOR:

  (Eerily calm)

  I asked for silence:

  Now it is broken.

  Justice Scalia,

  You who have spoken:

  Your precious chance at redemption has vanished:

  (Suddenly terrifying)

  You have sealed your fate—

  And you must be banished!

  • • •

  This,

  This is your fate—

  Unless you recant your originalist creed.

  That is all you have to do to be freed.

  Now, Justice Scalia,

  Now, what do you say?

  14. Aria: “Structure is destiny” (Scalia)

  • • •

  SCALIA (cont’d):

  I reject your bargain.

  • • •

  15. Scene: “That won’t do” (Ginsburg, Commentator, Scalia)

  • • •

  GINSBURG:

  Banish me with him,

  For I spoke too.

  SCALIA:

  Ruth, do not enslave yourself

  To my infernal fate . . .

  Ruth, leave now and save yourself

  Before it is too late . . .

  COMMENTATOR:

  But what are your grounds?

  Justice Ginsburg,

  Justify your demand;

  Explain this peculiar choice.

  GINSBURG:

  We serve justice together,

  And that means we can speak with one voice.55

  And here, I choose to join him.56

  SCALIA:

  Ruth, are you sure this is productive?

  GINSBURG:

  (To the COMMENTATOR, re: SCALIA)

  He spoke,

  So I spoke.

  You may consider my speech—constructive.

  So banish me with him,

  For I spoke too.

  COMMENTATOR:

  But why would you do this for your enemy?

  GINSBURG, SCALIA:

  Enemy?

  GINSBURG:

  Hardly.

  SCALIA:

  Sheer applesauce! 57

  GINSBURG:

  I would not.

  But I would do this for my friend.58

  COMMENTATOR:

  Friend?

  But you two are so . . . different!

  SCALIA, GINSBURG:

  Yes:

  16. Duet: “We are different. We are one” (Scalia, Ginsburg)

  SCALIA, GINSBURG (cont’d):

  We are different.

  We are one.

  The U.S. contradiction—

  SCALIA:

  The tension we adore: 59

  SCALIA, GINSBURG:

  Separate strands unite in friction

  To protect our country’s core.

  This, the strength of our nation,

  Thus is our Court’s design:

  We are kindred,

  We are nine.60

  SCALIA:

  To strive for definition,61

  GINSBURG:

  To question and engage,

  SCALIA:

  Let us speak to our tradition 62 —

  GINSBURG:

  Or address a future age.63

  SCALIA:

  This, the duty upon us . . .

  GINSBURG:

  This, the freedom . . .

  SCALIA, GINSBURG:

  . . . To judge how our strands are spun:

  This makes us different:

  SCALIA:

  We are one . . .

  GINSBURG:

  We are one decision from forging the source of tomorrow . . .

  SCALIA:

  One decision from shifting the tide . . .64

  SCALIA, GINSBURG:

  Always one decision from charting the course we will steer . . .65

  For our future

  Is unclear,

  But one thing is constant—

  The Constitution we revere.66

  We are stewards of this trust; 67

  We uphold it as we must,

  For the work of our Court is just

  Begun . . .

  And this is why we will see justice done:

  We are different;

  We are one.

  * * *

  I. Justice Ginsburg’s discussions of judicial philosophy and the value of collegiality, in Part V below, are reflected in the Scalia/Ginsburg opera.

  II. For the full opera, see Derrick Wang, Scalia/Ginsburg, 38 Columbia Journal of Law and Arts 237 (Winter 2015). The opera had its world premiere at the Castleton Festival in Castleton, Virginia, on July 11, 2015. The excerpt herein is used with the author’s permission. Please contact [email protected] for inquiries regarding the licensing or performance of this opera or any portion thereof. (Scalia/Ginsburg, an Opera in one act. Music and Lyrics by Derrick Wang. Copyright © 2012-2017 Derrick Wang. All rights strictly reserved.)

  8

  The Lighter Side of Life at the Supreme Court

  Opera is hardly the only basis for Justice Ginsburg’s friendships with her colleagues on the bench. The following speech, given by Justice Ginsburg frequently over the years, discusses the lighter side of life at the Court and highlights customs that have helped encourage collegiality—something Justice Ginsburg values highly and promotes constantly—among the Justices.

  Lighter Side of Life at the United States Supreme Court

  Remarks Presented to the Association of Business Trial LawyersI

  US Grant Hotel, San Diego, California

  February 8, 2013

  In these remarks, I will speak not of the heavy lifting done at my workplace, but of the lighter side of life in our Marble Palace, and of certain customs that promote collegiality among the nine Justices.

  My first comment concerns our routine gatherings. They begin with handshakes. Before the start of each day in Court, and before each conference discussion, as we enter the Robing Room or the adjacent Conference Room, we shake hands, each Justice with every other. (In total, the mathematically inclined will have computed, handshakes pre-conference or pre-sitting mornings total 36.) Every day the Court hears arguments, and every day we meet to discuss cases, we lunch together in the Justices’ Dining Room. The room is elegant, but the lunch is not haute cuisine. It comes from the Court’s public cafeteria, the same fare available to anyone who visits the Court.

  We lunch together by choice, not by rule, usually six to eight of us, and more than occasionally all nine. When Justice O’Connor (retired since 2006) is in town, she sometimes shares the lunch hour with us and enlivens our conversation with reports of her travels and efforts to promote judicial independence in the United States and around the globe. Also of her project to advance civics education in our nation’s grade schools.
Justice Stevens, who retired in 2010, also joins us occasionally. Now in his nineties, he is still an avid player of tennis and golf. Justice Souter, retired in 2009, is not fond of city life, Boston excepted. So we seldom see him in D.C., but he sits regularly on First Circuit panels.

  What do we talk about at lunch? Perhaps the lawyers’ performance in the cases just heard, or a new production in town, for example, at the D.C. Shakespeare Theatre or the Washington National Opera, or the latest exhibition at the Library of Congress, National Gallery, or Phillips Collection. Sometimes Chief Justice Roberts and Justice Alito speak of their children, the older members—Justices Scalia, Kennedy, Breyer, and me—of our grandchildren.

  From time to time, we invite a guest to vary the lunch table conversation. Invitees in recent Terms have included: former secretary of state Condoleezza Rice; former president of the Supreme Court of Israel Aharon Barak; former UN secretary general Kofi Annan; retired Justice of the Constitutional Court of South Africa Albie Sachs; and, most recently, Justice Dikgang Moseneke, currently Deputy Chief Justice of the same court. (So far, retired Federal Reserve chairman Alan Greenspan, and former president of the World Bank Jim Wolfensohn, have been our only repeat invitees. Both have an unusual talent. They can engage in lively conversation and eat lunch at the same time.)

  We celebrate Justices’ birthdays with a pre-lunch toast—a glass of white wine—and a “Happy Birthday” chorus generally led by Justice Scalia, because among us, he is best able to carry a tune. It is traditional, also, when a new Justice comes on board, for the former junior Justice to arrange a welcoming dinner all of us attend.

  Other events we host every now and then, mainly for lawyers and judges: We take turns greeting attendees at dinners for newly appointed federal judges, gathered in D.C. for a week of orientation. We also take turns introducing speakers at Supreme Court Historical Society biannual lecture series.

  Examples of my ventures for the Historical Society. A few years ago, I participated in a program on the work and days of Belva Lockwood, the first woman ever to gain admission to the Supreme Court’s Bar. In 1876, the Justices denied her application for admission, 6–3. But three years later, Congress passed a law requiring the Supreme Court and all federal courts to admit women who possess the necessary qualifications. Not content simply to practice law, Belva Lockwood ran twice for the U.S. presidency, in 1884 and 1888.

  Some months later, I presided at a reenactment of arguments before the Court in a famous case decided in 1908, Muller v. Oregon. The case involved an Oregon law that limited the hours women could be gainfully employed to ten per day. The defendant, prosecuted for violating the law, was a laundry owner, a man who wanted women employed at the laundry to work twelve hours per day six days a week. The debate involved in the case persists to some extent to this very day: are protective labor laws applicable to women only permissible, or does the equal protection provision in our Constitution require that labor laws protect male and female workers alike?

  An annual pleasant pause. Each May, just after hearings are over and before the intense end of May, early June weeks when the Term’s remaining opinions must be completed and released, the Court holds a musicale. That tradition was inaugurated in 1988 by Justice Blackmun, who passed the baton to Justice O’Connor when he retired. For the last twelve years, I have attended to arrangements for the musicales. A few years ago, we added a fall recital as well. Among recent performers, Metropolitan Opera stars Renée Fleming, Susan Graham, Joyce DiDonato, Stephanie Blythe, Thomas Hampson, and Bryn Terfel. At our musicale in spring 2012, the principal artist was world-celebrated pianist Leon Fleisher.

  Another special event. Every other year the women in the Senate and the women at the Court meet for dinner. The first time, in 1994, there were two Justices and six senators. In 2012, we were three, and seventeen women held Senate seats.

  During weeks when the Court is not in session, some of us spend a day or two visiting U.S. universities or law schools, or attending meetings with judges and lawyers across the country. Mid-winter and summer, some of us travel abroad to teach, or to learn what we can about legal systems in other places. For example, in recent recesses, I have taught, lectured, or participated in meetings of jurists in Australia, Austria, China, England, France, India, Ireland, Israel, Italy, Japan, Luxembourg, New Zealand, South Africa, and Sweden. Late January–early February 2012, I visited Egypt and Tunisia to mark the first anniversary of the overthrow of dictatorial regimes in those countries. In September 2013, we will have an exchange in Ottawa with our counterparts on the Supreme Court of Canada, and in February 2014, we will travel to Luxembourg for meetings with members of the European Court of Justice.

  Work at the U.S. Supreme Court is ever challenging, enormously time consuming, and tremendously satisfying. We are constantly reading, thinking, and trying to write so that at least lawyers and other judges will understand our rulings.

  As you may have noticed, we have sharp differences on certain issues—recent examples include federally mandated health insurance, affirmative action, public school desegregation plans, the Second Amendment right to keep and bear arms, control of corporate spending to elect or defeat candidates for public office, access to court by detainees in Guantanamo Bay, state efforts to apprehend undocumented aliens. But through it all, we remain collegial and, most of the time, we genuinely enjoy each other’s company. Ordinarily, our mutual respect is only momentarily touched by our sometimes strong disagreements on what the law is.

  All of us appreciate that the institution we serve is far more important than the particular individuals who compose the Court’s bench at any given time. And our job, in my view, is the best work a jurist anywhere could have. Our charge is to pursue justice as best we can. The Founding Fathers were wise enough to equip us to do that by according us life tenure (or, as the Constitution says, we hold our offices “during good behavior”) and salaries that Congress cannot diminish.

  Our former Chief Justice, William H. Rehnquist, spoke of the role of the judge using a metaphor from his favorite sport:

  The Constitution has placed the judiciary in a position similar to that of a referee in a basketball game who is obliged to call a foul against a member of the home team at a critical moment in the game: he will be soundly booed, but he is nonetheless obliged to call it as he saw it, not as the home court crowd wants him to call it.

  The day a judge shirks from that responsibility, Chief Justice Rehnquist counseled, is the day he or she should resign from office. I heartily concur in that counsel.

  * * *

  I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.

  Part Two

  * * *

  Tributes to Waypavers and Pathmarkers

  Introduction

  AS A YOUNG LAWYER living in Sweden, Ruth Bader Ginsburg came across the word vägmärken, which translates literally as “pathmarker” or “waypaver.” 1 Many consider the Justice herself to be an exemplary “waypaver” and “pathmarker,” blazing the gender equality trail and expanding opportunities for women and men, yet she is also known for giving credit to those who came before her, illuminating little-known historical figures and spotlighting those who helped pave the way for her own opportunities and accomplishments. Even while immersed in her own education and career, she always found time to look back and give credit and thanks to those who came before. She also did this in her earliest Supreme Court briefs, listing as co-counsel predecessors at the American Civil Liberties Union (ACLU) who had helped craft earlier gender equality arguments and noting the contributions of her students to each brief.

  Neither lip service nor window dressing, Justice Ginsburg’s tributes involve hours of historical research to discover and then share these stories, including those of early women lawyers and judges, Supreme Court wives, and Jewish Supr
eme Court Justices. Even now, as arguably the hardest-working Supreme Court Justice, Justice Ginsburg continues to pay tribute to historical figures and colleagues alike. The following tributes are only a small selection from a large and still-growing collection of Justice Ginsburg’s dozens of tributes over the years.

  1

  Belva LockwoodI

  Tonight I speak about a woman of courage who would not be put down, a woman who, in 1879, made the U.S. Supreme Court change its ways. Her name, Belva Ann Lockwood, her birth year, 1830. Lockwood was the first woman ever to gain admission to the U.S. Supreme Court’s Bar, the first woman to argue a case before the nine Justices, and the first woman to run the full course for president.

  Not born to wealth or social advantage, Belva Lockwood grew up on a family farm in Niagara County, New York. Widowed with a child at age twenty-two, after only four years of marriage, she enrolled in college and gained the training needed to become a high school teacher and, later, school principal. In 1866, she moved to Washington, D.C., and remarried two years later. Once settled in the nation’s capital city, she became prominent as a suffragist and an ardent advocate for widening employment opportunities for women. In that connection, she embarked on her long-held ambition to become a lawyer. No easy accomplishment in days when women were not welcomed at the Bar.

  Her sister suffragist, Elizabeth Cady Stanton, compared Lockwood to Shakespeare’s Portia. Lockwood resembled Shakespeare’s character in this respect: Both were individuals of impressive intelligence who demonstrated that women can more than hold their own as advocates for justice. Like Shakespeare’s Portia, Lockwood used wit, ingenuity, and sheer force of will to unsettle society’s conceptions of women as weak in body and mind. But there was a significant difference. Portia, to accomplish her mission, impersonated a man before revealing who she was. Lockwood, in contrast, used no disguise in tackling the prevailing notion that women and lawyering, no less politics, do not mix. She dressed in the less than comfortable fashion considered proper women’s wear in her day.