Ruth Bader Ginsburg: “The Notorious RBG”
Interview by Nadine Epstein
Appointed by President Bill Clinton in 1993, Supreme Court Justice Ruth Bader Ginsburg was the second woman to join the Supreme Court, after Sandra Day O’Connor, and the first Jewish woman. A well-known advocate on behalf of women, she balanced her long legal career with a loving 56-year marriage to the late Martin Ginsburg, a renowned international tax law expert, with whom she raised two children. Justice Ginsburg recently met with Moment editor Nadine Epstein in her chambers, where she proudly pointed out the silver mezuzah on the door frame and prints on the theme of tzedek—justice—hanging on the wall. In a wide-ranging conversation, the woman affectionately dubbed in the popular press and on T-shirts as “The Notorious RBG” discussed her Jewish values, feminism, religious freedom and what it is like to be a role model for so many women.
On Being Jewish
NE: Is there a Jewish value that guides you?
RBG: You know that the Jews are called “The People of the Book.” It’s the love of learning. I don’t know any other group where scholarship is so prized as in the Jewish tradition.
Did this influence you?
One of my greatest pleasures as a child was sitting on my mother’s lap when she would read to me, and then going to the library with her. In fact, she deposited me in the children’s section of the library and went to get her hair done. By the time she’d come back, I had the five books that I would take home for that week.
Were you influenced by other Jewish values?
Jews are very good at arguing. That’s what goes on all the time. Maybe that’s why law is such an attractive profession for Jews.
You recently wrote about female leadership in the Haggadah. Did you have Jewish female role models growing up?
None of the women in the story of the Exodus were in my Haggadah growing up. I suppose the two women whom young Jewish children knew about were Ruth, who followed Naomi, and Esther, who saved her people by being so beautiful. There were some other women like Deborah, but I didn’t hear about her until I was grown up. She was a prophet, a judge and a military leader.
Did being Jewish somehow lead you to feminism?
I would say that Judaism, in some respects, was not cordial to women. One of the searing memories of my youth was when my mother died and there was a minyan every day, and I couldn’t be part of it. That really hurt me. There were no bat mitzvahs when I was growing up. The world has changed. I went to Adas Israel [a Conservative synagogue in Washington, DC] two years ago for Rosh Hashanah. The cantor was a woman with a beautiful voice. Now I perform wedding ceremonies with women cantors and rabbis.I remember going to the Jewish Theological Seminary [JTS], the Conservative rabbinical school near Columbia [University in New York City]. The Reform Jews already had had women as rabbis for some time. JTS had women in the cantorial program, but not as rabbis yet. One of my arguments to the head of the seminary was that if you want to hold the next generation, you’ve got to include women.
On Women on the Court & in Public Life
What was it like to be the only woman on the court from 2006 to 2009?
Lonely. It projected altogether the wrong image because I’m rather small. We’d come out on the bench and there were these eight well-fed men and this tiny little woman. It didn’t look right.
What is it like to be one of three now?
Now it’s entirely different. Because of seniority, I’m close to the middle of the bench. Justice Elena Kagan is on my extreme left and Justice Sonia Sotomayor is on the last seat on the right. They are very lively participants in the conversation that goes on at oral argument. Now it looks like women are all over the bench. We are not one-at-a-time curiosities. We’re here to stay.
Has having three women on the court changed how the justices come to consensus or make decisions?
Well, we’re three women and we don’t always agree. I think appreciating that we are different is something to celebrate. In this court, there is a strong tug to agreement. That’s true of any collegial bench. You don’t want to be perceived as always sharply divided. In some cases, it’s inevitable, like Citizens United, the Voting Rights Act or Lilly Ledbetter. There’s no way that we would compromise. But on cases that are not that vital, there is a tug toward the middle. We all revere this institution, and we want it to work. It can’t work unless we work well with each other.
Are you saying that having women justices hasn’t changed the court dramatically?
I think a woman’s voice and a woman’s experience makes a difference in some cases. I think of the eighth grader who was hauled into the girls’ restroom and strip-searched because it was suspected that she had pills— drugs—with her. It turned out to be two Advil. Her mother was incensed that her daughter was so humiliated. So she brought a lawsuit against the school district, and at the oral argument there were jokes about, “Oh, the boys undress in the locker room, nobody thinks anything of it.” I just stopped that conversation by saying, “A 13-year-old girl is different than a 13-year-old boy. She’s at a vulnerable stage and very self-conscious and embarrassed by showing herself to other people.” I think that everybody suddenly realized—yes, they have daughters and there is a difference.
What would it be like if there were four or five or more women on the court?
It would be great. People ask me, “When will there be enough?” and I say, “When there are nine.” There have been nine men forever and nobody is doing anything about that.
If there were nine women on the court, would there be a different kind of consensus-making, collegiality or sensibility?
As far as opinion writing is concerned, some of my colleagues write rather snippy dissenting opinions or even criticize a dissent when they’re writing for the majority. They’ll say something like, “The dissent or the majority is sorely misguided.” Or, “The opinion of my colleague is not to be taken seriously.” Or, “It is Orwellian or profoundly mistaken.” Women tend not to write like that. They just give the reasons for why the court decides as it does, and they don’t make those distracting associations. Women are accustomed to dealing with put-downs by not reacting in anger. That doesn’t work, that doesn’t get you anyplace. Maintaining a sense of humor does.
What has been the most important case for women while you’ve been on the bench?
Ledbetter was a wonderful example of how a defeat can be turned into victory. The vote here was five to four against Lilly Ledbetter. Within a year, Congress passed a law saying just what she had been arguing. [The 2009 Lilly Ledbetter Fair Pay Act loosened timeline requirements for the filing of discrimination suits.] Her case was one that every woman understood, but my colleagues, unfortunately, didn’t. The end result was positive, because people were so surprised at the court’s reaction to her case. The group that got together to push for the Lilly Ledbetter Fair Pay Act had everyone in the political spectrum. It had pro-choice people, right-to-life people. Everybody got together to write that law. That was exhilarating.
What’s the next challenge for the women’s movement judicially or otherwise?
In the 1970s, the law books, state and federal, were just riddled with differentiations based on gender. There was this “separate spheres” notion. A woman’s sphere was the children and the home; men’s was the outside world. There were so many things that were just off-limits to women. Our objective in the 1970s was to end the sex role stereotyping. The law should deal with a person, a spouse, a parent—not a mother or wife. It took ten years, but almost all of the explicit gender-based classifications are gone.
A number of states didn’t even put women on juries, and this court upheld that as late as 1961. This court! It was the Warren Court, the liberal Warren Court! In this case—Hoyt v. Florida—the woman was on trial for murdering her philandering, abusive husband, and she thought that women on the jury might better understand her state of mind. He had humiliated her to the breaking point. She spotted her son’s baseball bat in the corner of the room, took it and with all her might hit him over the head. He fell against the stone floor, and that was the end of the fight and the beginning of the murder prosecution.
But this court, when her case came here, said, “Women have the best of all possible worlds. If they wanted to serve on juries, they can go to the clerk’s office and sign up. But if they don’t sign up, we’re not going to call them.” That showed a lack of understanding that jury service is an obligation of citizens. Citizens have obligations as well as rights, and one of those obligations is to participate in the administration of justice. But it was thought, “Women are expendable. Men have to serve. You can’t give them an exemption.” All the cases that I argued in the 1970s were before a no-longer “liberal” court. It was the court led by [Chief Justice] Warren Burger and yet, the court was really catching up to changes that were occurring in society—what women were doing, what they were aspiring to do.
Now that we’ve expunged the worst gender discrimination from the legal code, what’s the next step?
One is the unconscious bias problem, which I illustrate by referring to the symphony orchestra. When I grew up, there were no women in the symphony orchestra. Maybe a woman was the harp player, but that’s it. There were critics like Howard Schoenberg of The New York Times, who swore he could tell the difference blindfolded if a woman was playing the piano or a man. Somebody said, “Let’s try it out. Let’s drop a curtain between the people who are conducting the audition and the person being auditioned.” With that simple action, things changed almost overnight. Women were being engaged increasingly in symphony orchestras, and that was that. It’s not that there was an attempt to deliberately discriminate against women. It was the unconscious bias. You see a woman and you have certain expectations and they are that she will not be as good as a man. But when you don’t see her and you don’t know if it’s a she or a he [this disappears]. But we can’t duplicate that dropped curtain in every area.
Can the law remedy this bias?
Yes. But the unconscious bias is hard to get at. I’ll describe one successful case from the 1970s. It was under Title VII [of the Civil Rights Act]. It was against AT&T for promotions to middle-management jobs. Women were disproportionately left out. They did very well on all the standard measures except the very last test which was called “a total person test.” They flunked that disproportionately. The total person test was an interview. The interviewer, who was a white male, felt comfortable talking to someone who looked like him, but a woman was strange, as was somebody of another race or even another religion. There was this sense of the unfamiliar, of “I don’t feel at ease with this person.” But I think that the more women are out there doing things, the better it will be for the women who are just achieving adulthood.
So the goal of the women’s movement right now should be to get as many women into leadership positions as possible?
Yes. My granddaughter is now in her first year of law school. When she was eight, she was with me when I was being filmed for something or other. She said, “Bubbe, I want to be in the lm.” The person who was conducting this asked her, “Well, Clara, what do you want to be when you grow up?” This eight-year-old said, “I want to be President of the United States of the World.” That, as an aspiration for a girl! A generation before you wouldn’t have heard such a thing.
With many women, there remains an unconscious reluctance to take a leading role or speak publicly. I don’t know if that’s your experience, but it’s something that concerns me greatly.
It’s something women should be conscious of. Let me give you my own example. I tend to be a shy person. But when I started law school, in my first class there was a man who was always raising his hand, and he always had the right answer. I went home and thought, “Do I really belong in this school of people that bright?” Then I made him my challenge. I said, “I’m going to speak in class as much as that person.” That person happened to be Tony Lewis, who was the reporter for The New York Times. He sadly died [in 2013]. But that was it. I forced myself to be assertive. And I think women need to do this to overcome their inhibitions, their reluctance to put themselves forward.
I have read that you felt, in the past, that you weren’t heard when you spoke up in meetings, even on the court, but that this has gotten better for you. This is an issue that nearly every woman experiences. What did you do to finally be heard?
I don’t know how many times I’d say something at a faculty meeting and there was no comment, and then 15 minutes later, a man said the same thing and everyone reacted to it. But now that there are three of us [on the court], we certainly listen to each other. So now I’m not hesitant to say, “That’s so right. It’s exactly what I said ten minutes ago.”
What advice do you have for young women so that they will be heard?
One is that you put yourself forward, and the other is that you approach things with a sense of humor. That’s tremendously important.
Can a woman get away with expressing anger in these situations?
It’s counterproductive. This wonderful woman whose statue I have in my chambers, Eleanor Roosevelt, said, “Anger, resentment, envy. These are emotions that just sap your energy. They’re not productive and don’t get you anyplace, so get over it.” As I said before, maintaining a sense of humor is important.
On Religion & The Court
Does having six Catholics—five of them religiously engaged—on the court make a difference?
I don’t think that being Catholic is an indicator of how you vote any more than being Jewish is. Someone who was very Catholic in terms of religious observance and yet was the most liberal justice on the court in fairly recent times was Justice William Brennan. I remember going to his funeral mass. There were picketers outside the church protesting that he was getting a funeral mass when he had voted the wrong way in Roe v. Wade. I was thinking of what he would say. He would have said, “Let them demonstrate. They’re just exercising their first amendment rights.” That was his attitude.
Is religion more entangled in judicial decisions than in the past?
We have cases that bring up questions about religion that divide us. Hobby Lobby is one recent example. But it’s a different perception of what the religion clauses of the Constitution mean.
I adhere to the view that our Constitution was designed to separate church from the state. Each should stay out of the other’s business. But other people think that the religion clauses mean that you have to be sure that you’re not discriminating against religion. So, for example, it’s okay to use public money for parochial schools, as long as you give to the Jews just as you give to the Catholics. So the idea is non-discrimination, not separation. That’s quite a big gulf in how you come out in cases. If you think that support of religion is okay as long it’s done with an even hand, that’s one thing. If you think that the Constitution was meant to separate church from state and keep each off the other’s turf, then you would resolve cases differently. There has been a shift in the court away from the separation.
Did you have women role models when growing up?
I had no role models among women because there really were no women lawyers or judges. Maybe Amelia Earhart, because she was doing something that women didn’t do. Otherwise, it was fictional characters such as Nancy Drew.
How does it feel to have become a role model to young women?
I am surprised and amused by this notorious RBG. But this was all the creation of a second-year student at NYU Law School. Now, she’s graduating. What is the expression? It went viral?
Does it feel good to be a role model?
On the one hand, it feels very good. On the other hand, I think I better watch myself, so that I don’t do anything that would tarnish my image!