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Every year the Judith Davidson Moyers Women of Spirit Award Lecture brings an outstanding woman to meet with students, faculty and friends of Union Theological Seminary in New York City.
This year’s guest was Supreme Court Justice Ruth Bader Ginsburg.
A Supreme Court Justice for 27 years now, “The Notorious RBG” has also become a cultural icon who regularly attracts huge crowds to her public appearances They packed the house at Union where she was interviewed by journalist Bill Moyers.
BILL MOYERS: Welcome indeed. As you can see, Justice Ginsburg, it’s a full house here to greet you. The chapel is packed with Union faculty, staff, administration, friends. Guests have come from the Jewish Theological Seminary across the way, and from the religion departments of Barnard and Columbia, your law school alma mater. Still more in the balcony yonder, and in a room you and I can’t see, the overflowing room, it’s overflowing. And many are joining us by streaming. So the Union community has gathered and we thank you very much for coming.
First, a personal note. Two weeks ago, Judith and I were at the Library of Congress. The LBJ Foundation was presenting the Justice with its annual Liberty and Justice Award for All. And they had asked me to do a brief tribute to the Justice, so I spent weeks plunging into her work. The books about her. The biography. Biographies. The most recent and excellent book called Conversations with RBG, which is just out and is a terrific book.
And especially her briefs. I have read briefs in my life, but never as many briefs as I have read in the last three months. And what I discovered in both the dissenting briefs and the affirming briefs is a remarkable style, a remarkable body of prose that is lean and muscular as if it’d been in with a first rate trainer for the last 30 years. And that was picturesque and descriptive and insightful. I never enjoyed reading anything legal as much as I did those briefs.
And then I discovered a little known fact about her. Maybe some of you do who know her well personally. But she had studied European literature at Cornell in the ’50s with Vladimir Nabokov. And he had obviously had, reportedly had, and substantially had an impact on this unusual, remarkable, visible and particular prose.
So in your spare time, I urge you to get those briefs, I’m going to mention a few of then a little later, and read them. They are remarkable literature. So I want to begin by asking you, Justice Ginsburg, what did you take away from that time with Nabokov that you feel definitely shifted your way of writing?
JUSTICE RUTH BADER GINSBURG: We called him Nabokov, the various pronunciations. He was a man who was in love with the sound of words. I think English was his third language. His first language was French and then Russian. And he explained why he liked writing in English better than other languages.
And he gave his example. The white horse. Well, if you say it in French, it’s le cheval blanc. But when you say cheval, you see a brown horse. You have to adjust your image to make it white. But because we put the adjective first, when the horse comes, it’s already white.
BILL MOYERS: </bIs it true that he influenced your using the phrase “gender discrimination” instead of “sex discrimination,” and that you made the change?
JUSTICE RUTH BADER GINSBURG: That change was brought about by my secretary at Columbia Law School. Millicent Tryan (PH) was her name. She said to me one day, “I’ve been typing these briefs and audibles for you, and the word sex juts out all over. Don’t you know that the men you are addressing–” because the federal bench was then virtually all male. “Don’t you know that their first association with the word sex is not what you want to be on their minds.”
“So choose a gender-neutral word, a grammar book term, and that will ward off distracting associations.” So I thought that she was so right, and I began to use “gender-based discrimination.” And the court picked it up too. So now you will see gender used.
BILL MOYERS: Did you ever think of giving up law for a novel? Did you ever think of becoming a novelist after that experience?
JUSTICE RUTH BADER GINSBURG:I loved the law. I loved the study of law. Unlike many law students, I thoroughly enjoyed my three years in law school. I don’t think I have the capacity to be a good novelist. But in the trade, I have been in for goodness knows how many years– it’s hard to believe I’ve been on the Supreme Court for 27 years.
BILL MOYERS: Right. Do you have in your head how many briefs you have written?
JUSTICE RUTH BADER GINSBURG: How many opinions?
BILL MOYERS: Yes, opinions.
JUSTICE RUTH BADER GINSBURG: Hundreds and hundreds, because before I was on the Supreme Court I was for 13 years on the Court of Appeals for the D.C. circuit. In those 13 years I wrote hundreds of opinions, and on the Supreme Court, I don’t have an accurate count of them, but there is a record of how many, and they’re in the hundreds.
There’s an opinion of the court in every case, but then every justice is free to write separately either a concurring opinion, joining in on the majority’s judgment, but for different reasons, or a dissenting opinion. And you perhaps noticed a difference between an opinion that speaks for the court.
At our conferences I’ll take careful notes of what my colleagues thought about a case, and if am assigned the opinion, I will try to incorporate other views, because I’m writing for the court. But if I’m writing a dissent, I don’t have to worry about what the others–
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: –thought. I have a free hand.
BILL MOYERS: Well, if you had become a novelist, we’d have missed some marvelous opinions, and I’m so glad I had that chance to read them. But it takes me back to the question why did you become a lawyer?
JUSTICE RUTH BADER GINSBURG: Goes back to my undergraduate days at Cornell University. It was not a great time for our country. It was the heyday of Senator Joseph McCarthy from Wisconsin. There was a tremendous red scare in the country. There was the House UnAmerican Activities Committee and the Senate comparable investigating committee, calling people, many of them in the entertainment business, or writers, having them come before Congress to try to justify why they had belonged to a pink-tinged organization in their youth, in the 1930s, at height of the Depression.
I had a great professor for constitutional law at Cornell. His name was Robert E.Cushman. And he wanted me to be aware that our country was straying from its most basic values. That is the right to think, speak and write as you believe. And not as a big brother government tells you is the right way to think, speak and write.
And he made me aware that there were lawyers standing up for these people, reminding our Congress that we had a First Amendment that guarantees freedom of expression. We have a Fifth Amendment protecting us against self-incrimination.
I drew from that that being a lawyer was a pretty nifty thing to be, because you could earn a living, but you could also do things for which you were not paid that would make conditions a little better in your community. So it was that idea of a lawyer is more than someone who works for a day’s pay, but someone who has a skill that can help make things a little better.
BILL MOYERS: There runs through your life and your work a deep moral thread. A moral imperative. Where does that come from?
JUSTICE RUTH BADER GINSBURG: Where did it? I don’t know in particular where you drew that from, but I have often quoted an expression that Martin Luther King was fond of, and that is that the arc of the moral universe is long, but it bends towards justice. And I believe that fervently.
I’ve seen it in my own lifetime. Things may not be now as we would like them to be, but think of how far we have come. For example, I grew up when World War II was raging, and we were fighting a war against odious racism. And yet, our own troops, until the very end of the war, were rigidly separated–
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: –by race. That was wrong, and I think World War II was a major contributor to the Supreme Court eventually ending apartheid in America, with the Brown v. Board decision.
BILL MOYERS: 1954 I believe.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: Yes.
JUSTICE RUTH BADER GINSBURG: In ’54. But you think of the way things were, the racial injustice that existed in our country, the confined opportunities open to women. It was the closed door era for women, and I have seen those doors open wide. I’ve seen what was once the closed door replaced by a welcome mat. So I am an optimist, because I know that there is the possibility of change if people really care to make it happen.
And that’s important, because I never could have done what I did if there hadn’t been a groundswell among women in the late ’60s and throughout the ’70s, wanting to tear down the barriers. Wanting to free both women and men to be you and me. To follow your own talents–
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG:–as far as it could take you.
BILL MOYERS: When I ask you that question about that moral imperative, I thought you were perhaps going to come back with something about the Hebrew prophets. And I did my graduate work in theology and church history, and the only courses I came close to flunking were two years of Hebrew. If I hadn’t been married to Judith I would never have come out of it.
But I did spend enough time with that to think I heard, in some of your opinions, that cadence of the prophet. That outrage that comes with the sight of injustice. And I found where you said, after you took the oath at the Supreme Court, “I am a judge born, raised and proud of being a Jew. The demand for justice runs through the entirety of the Jewish tradition. I hope in my years on the bench of the Supreme Court of the United States I will have the strength and courage to remain constant in the service of that demand.” When I read that, I realized that explains the Biblical command on the wall that–
JUSTICE RUTH BADER GINSBURG: Justice, justice–
BILL MOYERS: –was in your chamber. Is it still in your chamber?
JUSTICE RUTH BADER GINSBURG: It’s from Deuteronomy. And it says, “Justice, justice shall thou pursue, that thou may thrive.” Yes. And also what I came away with from my Jewish heritage is a love of learning. Learning is highly prized among Jews. My father came here from Russia when he was 13. He went to night school to learn English. He never had any formal education except Hebrew school in any country.
My mother was the first child in her large family to be born in the U.S.A. Education was tremendously important to them. And I grew up learning to love to read. My fondest memories as a child were sitting on my mother’s lap while she read to me. So yes, it’s the opposition to injustice and wanting to do something about it. There’s a Jewish expression about the obligation to help repair tears in the society in which we live.
BILL MOYERS: I came upon an editorial you wrote in your high school paper, I believe, in which you did an amazing account of the importance of the Magna Carta. Or the ten commandments first. The Magna Carta, the 1681 or ’91–
JUSTICE RUTH BADER GINSBURG: Bill of Rights.
BILL MOYERS: –Bill of Rights in England, the Declaration of Independence, which marked the framework for a new government, and the UN charter that was adopted–
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: –and how did you at that age bring those documents together in what’s a brief but remarkable exposition?
JUSTICE RUTH BADER GINSBURG: It was in the eighth grade. World War II had just ended and there was great optimism. There was an organization with a name something like the World Federalists. Everyone was hoping for this one world that would live at peace, and that the rule of law would take over.
It hasn’t worked out quite as well as the expectation at the time, but it was very, very hopeful time. And the UN charter was the ideal one world. At peace. Was alive. It didn’t take too long before the Iron Curtain came down and we began what endured for so many years.
BILL MOYERS: But you were optimistic, despite the fact that you were born in the midst of the Depression. You were born in ’33.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: I was born in ’34. Judith was born in ’35. So we’ve got between us 250-some odd years. And it was after the Depression and after World War II. I think both us were quite optimistic then, even though we were too young to know what optimism was. But we were hopeful about the future.
But something else– I almost brought it tonight and I thought it would take too long. So that was in the eighth grade. Was it in high school then you came upon that writing by Anne Frank in which she– and I’d never seen this before. I read her diary. Seen the documentaries. But she talks about the plight of women.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: And why women are taking the subordination to men. She said it’s stupid.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: She says, “It’s stupid.” And she says, “I can only explain it by the fact that, well, men are more physical, men do the work and men can do as they please,” or something like that. And then she says, “I just hope women will wake up one day and realize what’s been done to them, and do something about it.”
JUSTICE RUTH BADER GINSBURG: Yes. And she was 15 years old.
BILL MOYERS: Fifteen years old. Where did you find that?
JUSTICE RUTH BADER GINSBURG: It’s in the diary toward the end. It was one of the last entries before she was sent off to I think Bergen-Belsen, where she died, I think about a month short of her 16th birthday.
BILL MOYERS: Can you remember what you thought when you read that about women in Anne Frank’s diary?
JUSTICE RUTH BADER GINSBURG: I don’t remember the first time I encountered it, because I read the diaries a few times. But it was a real eye-opener. I knew that these situations, these conditions existed, but I thought, “Well, that’s just the way it is. There’s not much you can do about it. You’ll have to cope with it.” But that’s a remarkable entry in her diary.
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: And she mentioned some progress too. She said, “In some countries they’ve been given equal rights.”
BILL MOYERS: Things were better. Right. For women. Who were your role models when you were a young girl? I know one was your mother, Celia.
JUSTICE RUTH BADER GINSBURG: I had a fictional role model and a real one. You’re right that my mother was a constant encourager, telling me, “Be independent, whatever else you do. It would be nice if you met and married Prince Charming, but be prepared to fend for yourself.”
The fictional heroine was Nancy Drew, because most books for children at that time were of the Jane and Jack variety, where Jack was running and doing all kinds of fun things, and Jane or Jill was sitting in a pretty pink party dress. But Nancy Drew was a doer. She was leading around her boyfriend. She had adventures. She solved mysteries.
The real woman who was a heroine for me was Amelia Earhart. I can’t say that I had women judges as a model, except for Deborah in the Bible, because women weren’t on the bench. I mean even when I started law school women were only 3 percent of the lawyers across the country. I think young women today have many women who inspire them. There’s no closed doors for women anymore. Women can be admirals. They can be chief judges. So it was Nancy Drew and Amelia Earhart.
BILL MOYERS: What about the Greek deities?
JUSTICE RUTH BADER GINSBURG: Oh yes. My mother took me on weekly trips to the library. And while she got her hair done, I would pick out the five books I’d take home. And Greek mythology I loved. My closest friend growing up was Catholic, and she had all these saints and I had nothing but this one God. So that’s when I became a lover of Greek mythology.
BILL MOYERS: Athena in particular, I believe.
JUSTICE RUTH BADER GINSBURG: Oh, Pallas Athena, who gave her father a headache.
BILL MOYERS: She is said to have been– I was struck by this when I came across it, because when I was about that age, growing up in a small town in east Texas, walking down East Burleson Street. They had just opened the new, small library built by the Business and Professional Women there, our first real external library outside of the courthouse.
And I went in and I picked out two books to take home. First books that I’d ever had. One was Jules Verne’s Around the World in 80 Days, and the other was a book of Greek heroes. And about the same time you were reading about Athena, I was reading about the males who were often the object of their wrath.
So we have that in common. That framed an issue with me. Jules Verne enhanced my desire to be a journalist, because he’d travel the world and did it on somebody else’s expense account. And I liked that. But Athena was said to have established the rule of law when she–
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: –tried Orestes? Right?
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: For the murder of her– for the murder o–her mother, who had killed his father.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: And so she was said to have put down the first frame for the rule of justice.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: And I wondered if you saw something in the future for you because of that?
JUSTICE RUTH BADER GINSBURG: I did not dream–
BILL MOYERS: Okay.
JUSTICE RUTH BADER GINSBURG: –of being a judge. Of course there may have been Athena, but she was immortal. And there was no mortal. In fact, it wasn’t until Jimmy Carter became president that women showed up on the federal bench in numbers. Go back to when I was in law school, there had been just one woman in the entire history of the country who had ever served on a federal appellate bench. She was Florence Allen from Ohio. She retired in 1959, the year I graduated from law school, and there were none again until Johnson. Johnson appointed Shirley Hufstedler —
BILL MOYERS: That’s right.
JUSTICE RUTH BADER GINSBURG: –to the Ninth Circuit. And then Carter made Shirley Hufstedler the first ever secretary of Education. There were none again. Carter thought, “I’ve seen these federal judges. They all look just like me. But that’s not how the great United States looks.”
So he was determined to appoint members of minority groups and women in numbers to the federal bench. There was no vacancy on the Supreme Court. He had only four years in office, but he transformed the federal judiciary. He named I think over 25 women to district court, trial court benches, and then 11 to courts of appeals. And I was one of the lucky 11.
Then President Reagan takes office and he doesn’t want to be outdone. So he is determined to put the first woman on the Supreme Court. He made a nationwide search and came up with a brilliant choice in Sandra Day-O’Connor. And no president has gone back to the not so good old days. So women are now something, like, close to a third of the federal bench. Not enough, but it’s certainly moved in the right–
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: –direction.
BILL MOYERS: Let me take half a step back, and then we’re going to move to some matters of law. That you grew up in Flatbush, in Brooklyn. Flatbush at one time it was one of the original Brooklyn colonies in the old days, and then it became, by the time you came along, the largest concentration of urban Jewish people in the world, believe it or not.
Mixing it up with the Irish, the Poles, the Italians and some Syrians. And there is, in your biography and other accounts of Flatbush in the ’30s and ’40s, a sense of energy and drive. And, you know, some conflict, obviously, when that many people are aspiring for their daily bread.
But you lived near Coney Island and you could see across the way, I’m told, the Statue of Liberty. There was something that one writer called a thorough Americanness about Flatbush. Did you sense that? Did you get the patriotic vibrations and the jostling that was taking place in the country around that time?
JUSTICE RUTH BADER GINSBURG: Most of the people in my neighborhood, their parents came from the old world. Certainly no further back than their grandparents. Our neighborhood, as many in New York, was about evenly divided among Jews, Italians and Irish. And then, as you said, there was a smattering of other.
What there wasn’t in our neighborhood were African Americans. And even when I went to law school, I think it was mentioned that I was one of nine women in a class of over 500. In that same class with nine woman, there’s only one African American in the entire Harvard Law School first year class.
BILL MOYERS: Just one?
JUSTICE RUTH BADER GINSBURG: Just one.
BILL MOYERS: Well, I lived in a small town in Texas. Grew up 20,000 people, 10,000 black and 10,000 white. And rarely did the twain interact. We saw each other from a distance, but it proved, as I’ve said many times, that you could grow up well loved, well taught and well churched and still not know anything about the lived experience of someone else just across the tracks, right?
JUSTICE RUTH BADER GINSBURG: And you might know of a case named Sweatt against Painter. Texas finally realized it couldn’t exclude African Americans from legal education. So it set up, I think in the ’40s, a separate school. Separate and vastly unequal. That decision, Sweatt against Painter, was one of the building blocks leading to Brown v. Board.
Because the Supreme Court said, “Without overturning Plessy against Ferguson that introduced the separate but equal notion, these schools are vastly unequal. African Americans cannot be kept out of the University of Texas Law School.”
So, I was living in Brooklyn when Branch Rickey hired Jackie Robinson to be on the Dodgers, and that was such an exciting time. We had no idea of what this man was exposed to. Not only from other teams, but his own teammates.
I have a passion for opera. You never saw an African American on an opera stage. There was Marion Anderson, great contralto. She wasn’t allowed to sing in D.C. in Constitution Hall. Finally the Met engaged her when she was well past her prime. So although we were a melting pot of people from Europe, both Eastern and– West, African Americans did not live in the same neighborhoods.
BILL MOYERS: Well, I cheered your opinion in I think it was Fisher v. the University of Texas–
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: –because it was an Affirmative Action case, and we in the Johnson administration had pushed Affirmative Action until we got a significant backlash. But LBJ made one of the greatest speeches of his time in politics at Howard University, when he said, “How can we say that if we untie people who’ve been running with their feet tied and bring them to the starting line, they can keep up with everybody else who has never been tied.”
And in Fisher v. the University of Texas, I believe, correct me if I’m wrong, you wrote– and that’s our university, Judith and mine. You wrote that if a university wants to adopt a modest or moderate Affirmative Action program, why not? I love the way you phrase it, as if it were just a natural thing, not some great mountain that had been moved. You remember that?
JUSTICE RUTH BADER GINSBURG: Yes. Yes.
BILL MOYERS: It had a big impact, of course, in Texas. Well, starting with the cauldron where you grew up and your idol, your heroes and your reading and your parents, and your experience at Cornell, I want to take you to the Voting Rights Act that I have mentioned and Judith mentioned in her introduction.
I was there in the White House with LBJ when he signed the Voting Rights Act in 1965. The crowning achievement of the Civil Rights Movement to that moment. Everyday people had put down their lives for it, and the main blow that we struck with the law was aimed at states and counties that had done their worst to keep black citizens from voting. Mississippi, for example, would ask black people coming to vote how many bubbles in a bar of soap, and they had to answer it before they could vote.
Congress passed the Voting Rights Act by an overwhelming margin, and it worked. Congress renewed it four times under Presidents Nixon, Ford Reagan and the first George Bush. But 48 years later, after LBJ had signed it, the conservative majority on the court struck down key provisions of the act by a five to four vote.
I will never forget, because that was the case before the court that was the closest to my heart and experience. I will never forget the fiery dissent you wrote, describing discrimination against voters, “A vile infection,” and denouncing and denouncing what you call the demolition of the Voting Rights Act.
You predicted, if you will remember, in that opinion that bad things would come from it, in the form of new and more sophisticated discrimination. And they have. This year stringent ID laws, new and more sophisticated purges of the voter rolls. The early closing of polls. Moving polls to out of the way places. Hard to reach. The majority’s opinion in that case, Justice Ginsburg, has done enormous harm. Do you think the justices know this?
JUSTICE RUTH BADER GINSBURG: Do I think they know it? Yes, but the majority placed the blame elsewhere. Perhaps we should explain the mechanism of the Voting Rights Act of 1965, states that had kept African Americans from the polls were put under a pre-clearance system. That meant if they wanted to make any change at all in their voting laws, they would have to have it pre-cleared by the civil rights division of the Department of Justice or a three judge district court in the District of Columbia. That meant that these repressive, restrictive laws never got passed, because the Department of Justice civil rights division would say, “No. We won’t pre-clear this.”
The majority’s view was Voting Rights Act is 1965. We’re now 2000-something. The formula is obsolete, because some of the places that discriminated in the past, some of the cities, some of the counties, are now up to snuff. So they shouldn’t be under the system. “So Congress, redo the formula so that people subject to pre-clearance are the ones who deserve to be, who are still discriminating against African American voters.”
Well, the stark reality, political reality, is a Congress that the Voting Rights Act had been recently renewed when the case came to the court. What member of Congress was going to stand up and say, “My district or my county or my city or my state is still discriminating, so keep us under the pre-clearance system.” It wasn’t going to happen. There wasn’t going to be a new formula.
The act itself had a get out free mechanism. That is if you had a clean record for X number of years, you could bail out and you would no longer be subject to the pre-clearance system. So Congress saw the problem. It had provided the bail out, which I thought was the right way to do it. The political reality was Congress was not going to pass a new formula.
And I did say this is a law that really worked. That pre-clearance system worked. And it didn’t come later. It came immediately. As soon as the heart of the act was declared unconstitutional, you started to see these restrictive measures. The ones you mentioned. End the polling early in the day. Put them in far away places. Voter IDs.
BILL MOYERS: You know, if I may, just hours after the court issued its judgment, Texas, the legislature of Texas, passed a severe ID– well, the same day. Just hours after that. My friend Don Reeves called me and said, “Well, it’s started.” “What’s started?” “The reversing.” He would have said, “The arc is being pushed back the other direction.” And you anticipated that. Was it some intuition you had?
JUSTICE RUTH BADER GINSBURG: No. I think it was almost certain that that was going to happen. But the majority blamed Congress. Said, “This is legislation. The legislator should fix the statute so that it fits the contemporary scene, and not the scene in 1965.” That was the court’s view.
BILL MOYERS: The case was decided when Obama was president, at a time when many Americans thought we were living in a post-racial America. We’ve been disabused of that notion in the past few years. And I want to ask you, do you think that if the opportunity came again, especially in the light of the bad fruit that this decision yielded, that the court might reconsider?
JUSTICE RUTH BADER GINSBURG: Your crystal ball is as good as mine. I can only say I hope so. When I wrote that dissent, I was hoping that I could peel off one person from the majority. Didn’t work out that– but every time I write a dissent hope springs eternal. And I’m thinking that I will–
BILL MOYERS: Keep sounding the theme. Very quickly, what are the circumstances under which a court can reconsider? The court can reconsider a case?
JUSTICE RUTH BADER GINSBURG: Well, this case will not be reconsidered, because the law is off the books now.
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: It was declared unconstitutional, so it would be up to Congress, and I have no hope at all that the current Congress would redo the Voting Rights Act.
BILL MOYERS: That makes two of us. It will not surprise you, of course, that the people here tonight are deeply engaged with religion in democracy. So I’d like to talk briefly about that. You have been a staunch defender of the separation of church and state. Why has that been so important to you?
JUSTICE RUTH BADER GINSBURG: I think that religion is stronger when it’s separate. When government isn’t entangling itself with religion. I should say that the wall, to be frank, no longer exists. The current court has a different notion of what the religion clause, the establishment clause, free exercise clause what they mean.
And the notion is the state must be neutral among religions. So example, if there’s a state support of Catholic parochial schools, there must be support for Jewish day schools as well. So the state can’t pick and choose. They can have no preferred religion. But it’s no longer the doctrine that the government must keep its hands off the church by not funding church-sponsored activities.
BILL MOYERS: For a long time, the court recognized that the principle of religious freedom, liberty should be a shield to protect the exercise of religion, but it shouldn’t be weaponized as a license to discriminate. So help us understand, those of us here tonight, the moral balancing act that the court engages in when reviewing a case where, say, your free exercise of religion collides with my free exercise of religion, because we believe differently or one of us may not believe at all. And I’m going to come to the– I’m not asking you to comment on any pending case, but we’ll come to the Hobby Lobby decision in just a moment. What do you all consider as you try to balance these forces of church and state in your conferences?
JUSTICE RUTH BADER GINSBURG: Well, one is a free exercise. The government should not interfere with someone’s free exercise. And those cases are still I think solid. There was one case involving– I don’t remember the name of the church, but they had animal sacrifice as their–
BILL MOYERS: Yes.
JUSTICE RUTH BADER GINSBURG: –ritual.
BILL MOYERS: Kansas, I think.
JUSTICE RUTH BADER GINSBURG: And the court allowed that free exercise. Now, you can go to extreme. There was a case when I was on the court of appeals. The church was called the Ethiopian Zion Coptic Church that had as its sacrament marijuana. But it was just not in church on a Sunday. It was all day, every day.
And so this church wanted to be licensed to import as much marijuana as it pleased so the members of its congregation could smoke marijuana all day, every day. I was surprised that that turned out to be a two to one decision. I wrote the decision saying no. But there was one of my colleagues who said, “If that’s their belief, if that’s their sacrament?”
BILL MOYERS: You delivered another stinging dissent in the Hobby Lobby case. That’s when the conservative majority owned the court by five to four. Decision ruled that because of their religious beliefs, the Christian owners of the company, Hobby Lobby, do not have to provide insurance coverage for birth control and contraception to their employees. And you call that decision a startling breath. Why that choice?
JUSTICE RUTH BADER GINSBURG: Yes. The owner’s free exercise right of their belief is something that I respect. But they had a workforce of people who were not of the same belief. And the federal law guaranteed to women insurance coverage had to cover contraceptives. And that the owners had a belief that contraception is sinful. They could have that belief, and as long as only co-religionous worked for them, it would be fine, because the women wouldn’t ask for it.
But they were employing women who were of a different belief. Religious-based or not. And the owners are in business, in commerce. They have to abide by the rules that govern everybody, and should not be in a position of thrusting the way they believe on a workforce that doesn’t share their beliefs. That was–
BILL MOYERS: So you said, “The court I fear has walked into a minefield.”
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: Explain that.
JUSTICE RUTH BADER GINSBURG: Yes. Yes, it was understood that if you were engaged in a business selling to the public, you couldn’t, for example, say, “I don’t want to sell to Jews,” or, “I don’t want to sell to African Americans.” You’re in business. Your business has to be open to all people who want access to the facilities. That’s very reasonable legislation to adopt. And that’s the way it had been until–
BILL MOYERS: Until–
JUSTICE RUTH BADER GINSBURG:–Hobby Lobby, giving the owner the prerogative. Now, there were many, many cases along the way where there was a deeply held religious belief, but it couldn’t be accommodated. Think of the Orthodox Jews who said, “We’d like to remain open on Sunday, because we must close on Saturday.” That case came to the Warren court and they rejected the plea from the Orthodox Jews that they should be allowed to open on Sunday when all their competitors were closed.
BILL MOYERS: Well, I grew up in this small town I was telling you about. Members of my church owned two drug stores with soda fountains in them. And both of them believed that segregation was ordained by the Bible, and that they didn’t have to serve the black people of our town who came in. And that prevailed up until the ’60s when we passed the Civil Rights Act of ’65, which we talked about last week. So in effect–
JUSTICE RUTH BADER GINSBURG: But I just, on that subject, would like to speak about a woman who came to be a role model for me, although we were both adults. In fact she was I think in one of the first groups of Episcopal ministers to be ordained. Her name was Pauli Murray.
BILL MOYERS: Yes. Yes. That’s right.
JUSTICE RUTH BADER GINSBURG: And Pauli was attending Howard Law School in the middle ’40s. All of the lunch pieces surrounding Howard University were white only. Pauli in the ’40s organized the Howard students to sit in at those lunch places, and all of the lunch places around Howard changed to admit the Howard students. That was Pauli in the ’40s.
Before Howard, she was attending Hunter College here in the city, and she took one of her friends, a white woman, to go with her to visit her family in North Carolina. They crossed the Mason-Dixon line. Pauli is told to go to the back of the bus. She refuses and she’s arrested in the ’40s. Long before we heard of Rosa Parks. And she wrote an article that was a major influence on me and other women in the ’70s. It was called “Jane Crow–”
BILL MOYERS: Jane Crow?
JUSTICE RUTH BADER GINSBURG: –“and the Law.” Yeah. In which she spoke about all the barriers. The artificial barriers that stand in the way of women being able to achieve what their talent and hard work would allow them to achieve. She is finally– I think one of the residences at Yale, where she got her divinity degree, has been named– there was a name of a Southern slave owner on the building, and now it’s named after Pauli Murray. And she was a woman way ahead of her time–
BILL MOYERS: Way ahead of her time. So Michelle Alexander, if you’re here, you have your next book. Jane Crow. Right?
JUSTICE RUTH BADER GINSBURG: Jane Crow has been written by Rosalyn Rosenberg. It’s been–
BILL MOYERS: Yes.
JUSTICE RUTH BADER GINSBURG: It’s a biography of Pauli.
BILL MOYERS: I love what you told Jeffrey Rosen, and Jeffrey Rosen was your collaborator in this new book, Conversations with RBG. Let’s see. Love, law. Yeah, the two, liberty. Something else. But you said to him, quote– and this reminds me of that lean, muscular prose that you I think must have developed at Cornell.
“Hobby Lobby was in business for profit. It employed hundreds of women who did not share those religious beliefs. So if you’re going to employ people, a diverse workforce, you cannot force your belief on the peoples who work for you.”
“If that’s a choice you want to make, if you want to be in business, then you have to play by the rules that all other businesses play by, and you can’t disadvantage the people who work for you based on your belief, which they do not share.” But we lost this round. You lost this round.
JUSTICE RUTH BADER GINSBURG: Uh-huh (AFFIRM).
BILL MOYERS: And I was reminded that you had said elsewhere that the court has to be careful to see that Congress is not treading on our most fundamental human values. But I ask you who is going to see that the court does not tread on our fundamental values?
JUSTICE RUTH BADER GINSBURG: The people who have controversies that will come before the court. The lawyers who will represent them. The commentators on the cases that the court will hear.
BILL MOYERS: We the people?
JUSTICE RUTH BADER GINSBURG: It has to start with we the people. There was a great jurist, although never on the Supreme Court. He’s I think universally recognized as one of the great U.S. jurists of all time, Learned Hand, who said, “If liberty is lost in the hearts of men and women, no court can restore it.”
So almost every major change that we have seen has been the result of a groundswell of people saying, “What we have is not right. It needs to be changed.” Think of how the gay rights movement changed when people came out of the closet and said, “This is who I am. I’m proud of it.” The change was swift after that, but when people were hiding who they were–
BILL MOYERS: Right.
JUSTICE RUTH BADER GINSBURG: –nothing was happening.
BILL MOYERS: I remember when the Civil Rights Movement, for which so many everyday people had died in the South and elsewhere, fortunately met with its deep thirst a political establishment in Washington, Congress and the White House, that held the hose that could satisfy that thrust.
That didn’t happen with the gay rights movement until much later, but it finally happened. It was people who forced the change. Happened with the #MeToo movement. Started out there. It takes that combustion of ground moral power and political courage and wisdom, and the ability of the system, the courts and others, to move in sync, almost, to relieve longstanding–
JUSTICE RUTH BADER GINSBURG: Well, I think the people start it. The court is a reactive institution, and it doesn’t have a platform. Doesn’t say, “This year we’re gonna deal with this or that issue.” It takes the complaints that are out there. So it has to start with the people, and if the people don’t care, nothing is gonna happen.
BILL MOYERS: I urge all of you to read a seminal article that the Justice wrote, which is in the book In My Own Words?
JUSTICE RUTH BADER GINSBURG: My Own.
BILL MOYERS: My Own Words. It’s a wonderful collection, a different one from Rosen’s book, but wonderful collection of her opinions and her articles and her speeches and her lectures. And in it you refer to the Supreme Court constitutional mistakes by which I assume you mean, for example, Dred Scott and Plessy v. Ferguson. It’s clear from reading that, that many of the constitutional issues the court has to decide entail arguable public policy choices. When the majority makes a choice that you disagree with, do you consider yourself bound?
JUSTICE RUTH BADER GINSBURG: It depends on the type of case. Most of the cases we hear are not the heady constitutional variety but they’re interpretation of statutes. So let’s say as a provision of the internal revenue code, I think the taxpayer should have won, but the court holds that the government wins.
That’s eminently fixable by Congress. Congress knows what the court held. It doesn’t amend the law. So be it. In that kind of case, I will say, “I was on the other side, but this is how the court ruled. And it’s up to Congress to change it, if it wants to.” I don’t take the same view of key constitutional questions, and I continue to disagree with the majority when I think it has been egregiously wrong.
BILL MOYERS: Is that why you sometimes read your dissents from the bench instead of issuing them first in writing?
JUSTICE RUTH BADER GINSBURG: Well, it’s not instead of. It’s in addition to.
BILL MOYERS: In addition to.
JUSTICE RUTH BADER GINSBURG: Usually. But when a case is decided the writer of the majority opinion will read a summary of the opinion from the bench. And then we’ll note, “Justice so and so, joined by justices so and so dissent.” That’s it. One or two times a year, sometimes four, sometimes none, when I think the court not only got it wrong, but egregiously so, I want to call attention to my dissent. So I will summarize it from the bench. I’m not going to re-bore someone by reading 20 pages, but within five minutes. So, for example, Shelby county was such a case. Hobby Lobby was another such a case. Lily Led–
BILL MOYERS: Lilly Ledbetter.
JUSTICE RUTH BADER GINSBURG: Lilly Ledbetter.
BILL MOYERS: Lilly Ledbetter. The case of Lilly Ledbetter is the one I would nominate for an Oscar for its drama.
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: Starring Ruth Bader Ginsburg.
JUSTICE RUTH BADER GINSBURG: Sorry, Lilly.
BILL MOYERS: It’s classic–
JUSTICE RUTH BADER GINSBURG: Lilly Ledbetter.
BILL MOYERS: It’s classic Ginsburg. A working woman named Letty–
JUSTICE RUTH BADER GINSBURG: Lilly.
BILL MOYERS: Lilly Ledbetter had sued Goodyear Tire and Rubber Company for back wages. When she discovered she had worked for years without being paid what men were paid for doing the same work. And if I’m correct, the court decided five to four that whatever the merit of the pay was concerned, she had waited too long to file her claim.
JUSTICE RUTH BADER GINSBURG: Well, the law said you must complain of the discriminatory act within 180 days of its occurrence. And the court’s view was, “Lilly, you’re coming to us 12 years after you were engaged? You’re way out of time.” The dissent had a very simple notion. Is that the pay disparity was incorporated in every paycheck she received, so it’s not that the discrimination happened and that it was over. It was continuing. And every time she received a paycheck, she had a renewed 180 days in which to sue.
That’s what Congress adopted in the Lilly Ledbetter Fair Pay Act. The paycheck rule. If the employer has been discriminating and the discrimination is kept up, every time she gets a paycheck, the discrimination is renewed. But what I tried to get across in my dissent was Lilly was doing a job that up until then had been done predominantly by men.
She doesn’t wanna be a troublemaker. She doesn’t wanna rock the boat. The employer doesn’t give out pay figures. But suppose somehow she had brought a suit early on. The defense almost certainly would have been– it has nothing to do with Lilly being a woman. She just doesn’t do the job as well as the men, so we pay her less.
Now, advance a dozen or so years. They have been giving her good performance ratings all along. So now the defense that she doesn’t do the job as well as the men, that’s out, because she’s been rated higher than the men. She has a winnable case. The court said she sued too late.
Well, it was a very short order that Congress, with large majorities, both Republican and Democrat, passed that measure. It was kind of a replay of what happened in the ’70s when the court decided that discrimination on the basis of pregnancy is not discrimination on the basis of sex.
The reason the world is divided into non-pregnant people. That’s most of us. Most men. Most women. All men. All men and most women. But then there’s these people, these pregnant people, and there’s no male counterpart. So whatever it is, it’s not sex discrimination. So Congress in 1978 passed the Pregnancy Discrimination Act. The sole of simplicity. Discrimination on the basis of pregnancy is discrimination on the basis of sex.
Those decisions, Gilbert in the ’70s, and Lilly Ledbetter’s case many years later, it just caught the public attention and it said, “Where are they to say discrimination on the basis of pregnancy isn’t discrimination?” And then the same thing in Lilly Ledbetter.
BILL MOYERS: Well, the reason I mention the drama in Lilly is because you did forcefully read your dissent on the bench, and for some reason or the other, modern technology or wafting in the breeze, Barack Obama heard it.
JUSTICE RUTH BADER GINSBURG: Well, but my tagline, the very last line in the dissent, was the ball is now in Congress’ court to correct the error into which my colleagues have fallen.
BILL MOYERS: Well, and the very first bill that Barack Obama signed when he arrived at the White House was the Lilly Ledbetter Pay–
JUSTICE RUTH BADER GINSBURG: Fair Pay Act.
BILL MOYERS: Fair Pay Act. And that’s what I meant by the drama. It goes with the metaphor of the umbrella you used in the Shelby county case, which I know you must have written down when you were at Cornell and remembered it many years later. You remember it?
JUSTICE RUTH BADER GINSBURG: Yes. It’s–
BILL MOYERS: Tell us.
JUSTICE RUTH BADER GINSBURG: It says something to the effect of–
BILL MOYERS: Throwing out–
JUSTICE RUTH BADER GINSBURG:–saying
BILL MOYERS: -pre-clearance. Throwing out–
JUSTICE RUTH BADER GINSBURG: Yes, which has worked so well. Is, like, tossing away your umbrella in a rainstorm because you haven’t been getting wet.
BILL MOYERS: And someone wrote analyzing your experience at Cornell– wonderful essay by the way. I think it may have been Jeffrey Toobin. Our friend Jeffrey Toobin. Someone wrote that, “The image of using an umbrella in a rainstorm perfectly describes how the Voting Rights Act protected citizens in parts of the country where discrimination has prevented more than one minority group from voting. Easily visualized and easily remembered.” I think the author of Lolita might well be applauding that line.
In your lecture on speaking in a judicial voice, and your good friend and mine and Judith’s, Bill Josephson, who’s sitting right there on the front row reminded me of this. You write about the importance of civility and respect among judges and justices. That that is, as you have said, one of the hallmarks of the court, collegiality.
But I’m wondering when your conservative colleagues rule in a way that diminishes the country as you see it, rules, say, that set women back or that leads to the suppression of votes, or to the execution of someone on death row, don’t you feel some outrage? And do you ever express that outrage?
JUSTICE RUTH BADER GINSBURG: Well, you’ve quoted from some of my dissenting opinions, but I’ll use a phrase that my colleague, Nino Scalia used again and again, which is, “Get over it.” And I can think– and the most vivid memory I have is of the Bush v. Gore case, where we divided sharply five to four.
But it was a marathon. We accepted the case on a Saturday. Briefs were filed on Sunday. Oral argument on Monday. Decision out Tuesday. So it was around the clock work for all of us. And the ones who were among the four, we were disappointed.
But we soon went into the January sitting and we had to reason together. So we got over it. I sent my law clerks down to Justice Kennedy’s chambers. He was on the other side. He wrote the principal opinion for Bush. And I wanted them to watch how the media was portraying this with Justice Kennedy’s clerks. Justice Scalia called me about 9:00 that evening and said, “Ruth, what are you doing still at the court? You should go home and take a hot bath.”
It is the most collegial place I’ve ever worked. And even though I can be disappointed, sorely disappointed in a colleague one day, I know we have to go on to some very important work the next day. So that we couldn’t work as we do if we didn’t maintain that collegiality.
BILL MOYERS: But did he very get under your skin? Nino?
JUSTICE RUTH BADER GINSBURG: Yeah.
BILL MOYERS: I mean did you ever try to restrain some of his verbal–
JUSTICE RUTH BADER GINSBURG: Yes.
BILL MOYERS: –exercise– you did?
JUSTICE RUTH BADER GINSBURG: And he helped me, because Justice Scalia was an expert grammarian. And every once in a while I’d make a grammatical error. He never embarrassed me by sending a note to the court saying, “Change this.” He would either come to my chambers or call me on the phone.
I’ve many times said, “This is so strident. You’d be more persuasive if you toned it down.” And that was advice he never took. But to give you another example of collegiality. So one case where we divided sharply was the Virginia Military Institute case.
BILL MOYERS: That’s when you admitted women to what had been an all male–
JUSTICE RUTH BADER GINSBURG: Right.
BILL MOYERS: –academy in Virginia.
JUSTICE RUTH BADER GINSBURG: So the court, there were only eight members participating, because Justice Thomas’ son was attending VMI, so he was recused. Scalia ended up the lone dissenter. He came to my chambers and he threw down a sheaf of paper and said, “Ruth, I’m not yet ready to circulate this dissent to the full court. It still needs more polishing. But I want you to have it as early as I can give it to you so you’ll have more time to answer it.”
So I took his penultimate draft of his dissent on a plane with me and was going to a judicial conference. I read it and it ruined my weekend, but I was glad to have the extra time. And I’m also very pleased to say how wrong time has proved him to be. VMI has been a tremendous success story. The school has hardly gone to rack and ruin. It’s gotten better in every way, and they’re very proud of their women cadets.
BILL MOYERS: I’m so impressed that you don’t deal in abstractions, but you remember the people for whom those decisions meant a different life or a different way of life. A different chance in life. Whether it was Sally Reed. I believe she was the first that was in the case–
JUSTICE RUTH BADER GINSBURG: Oh, Sharron Frontiero Cohen. Who will be with me in Omaha, Nebraska this summer. And it’s a celebration of the centennial of the 19th amendment. The amendment that gave women the right to vote. So Sharron, whose case was the first one I actually argued in the court, will be there. I’ve stayed in touch with her over the years.
BILL MOYERS: Do you remember Wiesenfeld–
JUSTICE RUTH BADER GINSBURG: Yes. In fact his son is coming to see me–
BILL MOYERS: Wiesenfeld’s son?
JUSTICE RUTH BADER GINSBURG: Yeah. He spells it WEESEN-feld, but pronounces it WISEN-feld. Why, I don’t know. This is a man whose wife died in childbirth, and he vowed that he would work only part-time so that he could care personally for his infant. There were Social Security benefits for the survivor of a wage earner.
You could earn up to the earnings limit, put together the Social Security and the part-time earnings, you could just about make it to support yourself and the child. So Stephen Wiesenfeld went to the Social Security office to claim what he thought were child-in-care benefits. He was told, “We’re very sorry. These are mother’s benefits, not father’s.”
So that was a case in which the court was unanimous in the judgment, but divided three ways on the reason. The majority said, “Obviously, the discrimination begins with the woman as wage earner. She pays the same Social Security taxes as the men. She doesn’t get a discount on the taxes she owes, but her family doesn’t get the same protection from the Social Security system.”
Some, including my now colleague John Paul Stevens, my recent colleague, said, “This is discrimination against the male as parent, because he doesn’t have the opportunity to personally raise his child. He has to employ a substitute for himself so he can make the money needed to support the family.”
And then there was one, and it was the first and the only time in the ’70s where my later chief voted at least for the judgment that I was seeking, and that was then Justice Rehnquist, who said, “This is totally arbitrary from the point of view of the baby. Why should the baby have the opportunity to be cared for by a sole surviving parent only if the parent is female and not if that parent–”
JUSTICE RUTH BADER GINSBURG: –“is male?”
BILL MOYERS: Well, I’m going to get a sizzling dissent from this, I know, but I yielded some of our time to Serene and Judith. And I’m now only halfway through the interview, but I’m receiving a wrap notice over here from our director. I was going on to talk about the 19th amendment and where we are, and the fact that 100 years after women got the right to vote they still don’t have equal political stature with men. Less than 25 percent of Congress is female.
JUSTICE RUTH BADER GINSBURG: But then there were none when they–
BILL MOYERS: Well, that’s true. And I was gonna lay it out and– sexual harassment. Equal pay. All of that. But we don’t have time. We’ll come back to it. I was gonna talk about this remarkable issue of Daedalus journal, which is published by the American Academy of Arts and Sciences, updating us on where women are today. Really something I think you and everyone here will want to read.
I’m going to end with one question to which I ask you give me a brief answer, if you will. And it’s because of who is here tonight. So many students who take very seriously their commitment to the moral imperative of faith that you do of the law. There’s a saying that made the rounds in Washington in the 1960s. “When injustice becomes law, resistance becomes duty.”
And students from Union, faculty and staff as well, frequently take on injustice directly. They went to Ferguson. They went to Standing Rock. They’ve marched on the Capitol. They’ve sat down on the streets with Bill McKibbon and 350.org. What should citizens do, like these students have done, who see injustice being perpetrated?
JUSTICE RUTH BADER GINSBURG: My faith is in today’s young people. I’ve seen it in my granddaughter and the things that she is doing. In my former law clerks. One of my former law clerks is devoted to seeing to it that every child who turns 18 registers to vote. An organization that will take them to the polls.
My granddaughter is involved with the Purple Campaign, which is concerned with the sexual harassment in the workplace. I think there is a spirit among today’s young people that wants to combat injustice. That’s what I believe, and I would do everything I could to encourage that.
BILL MOYERS: You’ve done your share. Justice Ginsburg, thank you very much.
