A Conversation with Justice Ruth Bader Ginsburg '59

ladies and gentlemen please welcome the 15th Dean of Columbia Law School jillian lester and from the class of 1959 Associate Justice of the Supreme Court of the United States Ruth Bader Ginsburg [Applause] [Music] [Applause] we like that [Applause] well welcome everyone this is a truly joyous occasion here for Columbia Law School Justice Ginsburg we are so pleased to welcome you here to have a conversation with us this afternoon in celebration of the 25th anniversary of your investiture to the Supreme Court of the United States and you can see if you look at both below and above that we are here in full force everybody is absolutely I also want to welcome those of you I'm looking into the space right now those of you who are on Facebook and watching this by livestream there were many more people who wanted to come to this event than could fit in this room and so we have people both virtually and and physically here with us today Justice Ginsburg all of us know of your close connection to Columbia which began at least formally when you transferred here after completing your first two years of law school at Harvard Law School in many ways you were coming home having grown up in Burke in Brooklyn so tell us what it was like to come here to Columbia Law School in the fall of 1958 I had some trepidation because I had two years at Harvard Harvard refused to give me a degree if I successfully completed my third year here I didn't dare ask Dean Warren if I would get a Columbian degree because the idea of three years of law school and no degree from either institution was too much photographer but Columbia was very good to me I was invited to the Law Review by he who was the editor Wallace and I even received a Columbia degree of which I am very proud and every time that Harvard Law School asks me the easy from will Jesus [Applause] I have only one earned degree and then this from Columbia I do have an honorary degree from Harvard so when you went to law school did you have any idea that you would build a career in the pursuit of particularly gender equality and that you would become a real trailblazer in that area it wasn't in my wildest dream for women of my generation the challenge was to get that first job because mostly the employers wanted no lady lawyers and a few that were beginning to accept women wanted no mothers and my daughter who is in the audience was four years old when I graduated from law school so the challenge was to get that first job once you did then you performed at least as well as the men and so the second job wasn't to wasn't so difficult so what once you well you obviously had a little bit of trouble at that first at that at that first effort to get a job and so then you went into the Academy instead this is the story about how I got the job which I didn't find out till here years later Gerald Ganta who was teaching constitutional law and federal courts here at Columbia was in charge of getting clerkships for Columbia students he called every judge in the second circuit and every District Judge in the Eastern District in the Southern District and they asked one who was a Columbia college graduate and the Columbia Law School graduate sir gentlemen L Palmieri he proposed that Palmieri engaged me as his locker at home Palmieri thought my record was fine but he was concerned mine not being available on the occasional Saturdays and Sundays and so you don't assure him that if I didn't do the job to his satisfaction there would be a young man from my class who would in chomping and take over and so that was the carrot and the stick according to Jerry was if you don't give her a chance I will never recommend another Columbia student to you and so was it during your time as a clerk that you began to think about gender issues and and gender rights as as a passion or was that later when I graduated from law school it was pre Title 7 there wasn't even any will pay Act so they were not the tools to challenge discrimination I think we mostly accepted it as an obstacle we had to overcome but then came the 70s when they awarded tools the worst Title 7 and later title 9 it was the first time it was really the first time in history that you great then in gender barriers that were pervasive pervasive did you see how much has changed I came here I spent yesterday at West Point where the general who was in charge of the program was her first name was Cindy and they were many women at the school going into all kinds of fields but they couldn't enter before including the almond division so it was a very upbeat date for me to see the chain now in 1972 you became the first woman appointed to the tenured faculty at Columbia and it's really hard to believe that having begun to admit women about 50 years earlier that it took that long before a woman became a member of the tenured Columbia faculty now you weren't quiet about your views on this as the record as the as the story goes you said that it was no accident that it had taken so long the president of Columbia McGill was a spire a reporter so how is Columbia doing with affirmative action and the answer was it's not by chance that the two most recent apply keys to the law faculty are an african-american male a female and so I was confronted with that statement and that's how my ass was if it was no mistake there all he is Columbia University has existed there has been no tenured all professor so many out here in the audience have aspirations for a career ahead of them and for some they'll be entering into areas where people who've had their experiences are underrepresented do you have advice to others who are seeking a future in an in a area of the law or a career in which there's under under representation of people who have had their experiences for one thing there are no doors closed anymore anything you want to do in the legal profession you can do if you have the girl and are willing to do the work that it takes and I've always callously students don't try to do things alone get together with people of like mind and you can show up sure up each other so when you were a faculty member it was pretty remarkable you were not only doing the work that fills the days of most faculty members teaching doing scholarship being a member of the faculty community but you were also lawyering you were a public interest lawyer actively involved in public interest litigation the panel that follows our discussion is going to explore some of that but I'm curious to know how did you balance these different aspects of your professional life I mean did you just decide that sleep was overrated and at each aspect in some way feed the other I had a group of students who work with me at Columbia went wooden I taught procedure and conflicts and was new hanging constitutional law but I also had Clinic where the students were assisting in whatever I was doing and I suppose the most difficult one for some of my colleagues is was a lawsuit against Columbia if he had lived a hundred named plaintiffs and it was about the then he tiaa-cref retirement where the women got less per month because on average women live longer than men that was that was the excuse that was given and also some added and women eat less but I must say that my colleagues at the law school even if they disagreed with the position I was taking I felt secure on my position because I knew that they would back me up and if the prediction was if they give women the same retirement pay as men all the men would desert the system but tiaa-cref was such a good deal you know one deserted it and today it's flourishing so oh but that by the way that was and it started with a tea at madam Wu's house she was an outstanding chemist and it was women faculty members and women administrators what the plaintiffs as it turned out there was a case from California that decided the issue who decided it the right way and so look at the Colombians who did not have to go forward my Atman my very first encounter as a faculty member feminist friend came to see me and she said Columbia has just given layoff notices to 25 maids and not a single janitor so what are you going to do about it and I went to see the vice president in charge of business he told me that Columbia was very well represented and what I like a cup of tea [Laughter] the following Monday there was a hearing on a preliminary injunction but she counseled to the EEOC came to support the maids the Union switched sides and the Columbia was a guess it was the unions contract that had these separate seniority lines so that every maid would go before the first janitor the unions response was yes that's in our contract but we can adhere to a contract that violates Title 7 but there was Columbia all alone and the happy ending was when Columbia got the signal that they couldn't lay over 25 mates and no janitors they decided they didn't need to layoff anyone that they would deal with the housekeeping problem by attrition so I'd like to fast forward to the moment there's a lot going on these days in the newspapers about the Supreme Court we've been closely watching the confirmation hearings of the past few weeks and during your own confirmation hearings you declined to answer questions about how you would rule in certain cases or situations that might come before the court you've been outspoken in your views about how the judicial confirmation process has evolved over time could you tell us about that and why you feel so strongly why absent that I wouldn't preview what I might decide except I did that then no doubt somebody would mean to accuse me but I had already expressed a view but I tried to explain to the committee that a judge is bound by an appellate judge is bound by the record so the first thing we look at is what happened before the case came to us then we turn to the lawyer's briefs so for me to give an off-the-cuff answer this is not that would be improper but the committee the Judiciary Committee had a lot to work with because I had been on the DC Circuit for 13 years written many opinions and I gritted many articles so any of that was fair game they could ask questions about anything I really so so should a person who answered questions during their confirmation hearing recuse themselves from matters that they might later hear if they are ultimately appointment it would be they would have been no doubt a motion to we excuse me and how I was decided it's but it's something that should be avoided I realized that we are out of time for our preliminary or our first conversation but the panel has two parts following our conversation we will be welcoming a full panel to the stage and let me turn now to Professor Gillian Metzger who will join us on the stage and she will introduce the panelists thank you very much for this conversation with me and I'll be back on the stage a little later to do some question and an answer from questions that have been submitted by students from the law school so thank you so much [Applause] [Music] can I tell the audience that the chief in charge of this panel Gillian Metzger was my law clerk of what you as a Gillian it was in 97 Hyundai's October term 97 I believe yeah so a while ago it would say what was he here after the VA like it was the year after the VMI case yes when when we came to the court there were a lot of cases the year before ours that were sort of on the bigger ticket side and I think our year was a little bit tamer is my recollection but hello everyone and justice it is just an honor and a privilege to get to be here with you today and with the with all of you but also with our the rest of our panel so without further ado I'm going to invite them out here first Allatoona Johnson my colleague and the Jerome B Sherman professor of law here at Columbia League learned class of 1988 the deputy director of ACLU immigrants rights project and Nancy Northup president and CEO also class of 98 but of the center for reproductive rights thank you all [Applause] [Music] so justice unique need absolutely no introduction but I'm going to say a few words about the remarkable folks on this panel they are a truly impressive group of Columbia alum and Columbia faculty I'm going to begin with Nancy who has been the president of the center for reproductive rights now for 15 years crr engages in litigation legislation public education efforts across the country and across the world in seeking to defend women's access to reproductive health services most recently at the Supreme Court there are were the attorneys for whole women's health and successful in whole women's health challenge to requirement that Texas had imposed on abortion providers with the court ruling that those were unconstitutionally burdensome so Nancy welcome Lee is as I mentioned deputy director of the ACLU immigrants rights project I think that conveys to you that he's been a little bit busy recently Lee has argued and participated in many of the major cases going on today most recently the family separation cases was also very closely involved in the travel ban litigation but he has participated in major impact litigation even before the Trump administration particularly involved in leading immigration and national security cases for years so thank you Lisa being here I should say by the way Columbia is lucky not only to have Nancy and Lee as graduates but also to have them as adjunct professors they have both taught and shared their wisdom and experience with Columbia students now going on years so and now last but certainly not least my wonderful colleague ality johnson allottee is a nationally renowned expert in civil rights who engaged in national impact litigation when she was at the NAACP Legal Defense Fund she proceeded from there to work for Senator Kennedy for several years before she came to Colombia she writes extensively on civil rights advocacy and in addition to being an extremely popular teacher of Civil Procedure subject by the way I happen to know that Justice Ginsburg is also very fond of allottee is faculty co-director of the Center for Constitutional governance at Columbia so welcome Allatoona and I'd like to start us off justice with a question for you you've been a trailblazer in so many ways over the years not least your recent turn as movie star comes Supreme Court justice I have to say I didn't see that one coming that's that's on me but it's playing at this well later today in the journalism journalism school because at the end of everything at the law school I'm going over to the journalism school to participate in their question and answer battle oh that's wonderful well so they're you know that's where you're gonna go after we're done here but but truly your work for the ACLU Women's Rights Project in obtaining legal recognition of women's equality was really trailblazing and the cases that you you brought are now of course a core part of the constitutional law Canon I teach them every year I teach Khan law I'm sure many of them are very familiar to our audience but let me just mention three three top ones I'm sure the Justice would have others to add to the mix but their's was read versus read where you successfully challenged an Oregon law that denied every right Oh Sally weed was from Boise Idaho Idaho I'm sorry Idaho that many years later and she was denied the ability to represent her son's estate simply because she was his mother rather than his father and that was a seminal case in women's equality and then you had french arrow versus Richardson which I believe you probably talked to the general about in West Point a challenge to the military's policy of denying husbands of female military members benefits that the wives of members received when does the military policy there were statues uh-huh provided seven frontier or marrying a student college student and he applied for the housing allowance that married military members you see he thought but they were available to the male members not female right right and that was statutory and you also challenged statutory restriction in the Social Security Act right was the same kind of differences and the most compelling case was Stephen wises involved a man whose wife died in childbirth and he vowed that he would not work full time until his child was in school full-time and he figured that with the Social Security benefits and part-time work he could just about make it so we went to the Social Security office and a nice and I'd like an application for child in care benefits and was told we're very sorry these are mother's benefits are not available to follow so it was the same thought that the male is the breadwinner that counts a woman if she works as a pin money earner so he doesn't get any family protection people ask me many times why did you take so many men's rights cases like Stephen was involved but the discrimination starts with the woman the one as wage earner she is considered a secondary earner and therefore in even though she pays the same social security taxes that's a man her family doesn't get the same protection so so that's often identified your efforts to frame the case and to show the discrimination on both sides from gender equality rules is often framed as one of the strategic choices that went on in in the in the litigation were there other choices that you made or challenges that you remember really facing as you start to think about this line of litigation you were embarking on no and there were some things that we they didn't take I was thinking of it just yesterday when the young women were telling me that they were their first choice was the armored tank division when a woman came to the ACLU office and said I've just gone through tank training and I was the best in my class and now they won't put me in a unit why because at the time there was a lawsuit against the military Academy's West Point Annapolis the Air Force Academy's for refusing to admit women and the Armed Forces brass feared that if they put women in situations like the OMA tank division then they would have a harder time defending their refusal to admit women to the military academies and that was a case you decided not to so we didn't take the her case because we thought it was too soon oh and another one one of my favorite clients Susan struck for another reason she her problem he was captain in Vietnam and she became pregnant while she was there at that time pregnant was it was called immoral and administrative of course mandatory cause for discharge anyway Susan Susan discharge was waived I won't tell them the whole story about how that came about and the Armed Forces changed the policy so the pregnancy was no longer a horror matic discharge Browder and I called Susan to see if we could fend off a motion to dismiss the case is moot and she thought she said I'm not I haven't been denied any pay or allowances of course I would not choose by not Air Force Base but I can't say that that represents any kind of discrimination and then she said that this conversation is taking place in 1972 there's one thing all my life I've dreamed of being a pilot but the Air Force doesn't give flight training to women and we laughed because we knew in 1972 that was not a winnable case so so Nancy Lee let me actually that's a perfect transition to you if you could maybe Nancy you can lead us off but thinking about describing that a little of the work that you do and whether you similarly think in your litigation efforts about staging cases or what are some of the other strategies and strategic choices that CR and you are making in the in the work that you do so the Center for Reproductive Rights works both in the US but also around the world to make sure that reproductive rights are understood as fundamental human rights by governments and by that we mean that they are legally enforceable guarantee and to the full range of reproductive health services to access to essential obstetrics care to maternal care to safe and legal abortion to contraception to assisted reproduction and we work on it from a lot of different fronts we do strategic litigation we do legislation we do fact-finding reports we partner and develop networks of lawyers around the world to look at this and our strategic litigation is not just in state and federal courts in the US but we also bring cases in the inter-american Commission for Human Rights the European Commission for Human Rights at the UN through the treaty monitoring bodies and in all of that we have to think about what's the right case to bring when and I think the thing that's probably most similar to the justices experience in the 70s of how you bring along to women's rights cases was thinking about how we bring along the cases in the regional and international human rights bodies on applying the Human Rights framework to women's reproductive experiences so you don't want to rush in there with the first you know case but to start working on and in it is now recognized in the UN system and particularly in the women's rights treaty that discrimination against healthcare that only women need which would be everything around obstetrics and preventing pregnancy and terminating pregnancy and carrying to term discrimination against healthcare that women need is sex discrimination and so taking things step by step has helped to develop the law in that area Wow and so it when you think about that's one obviously sort of staging and step by step thinking about the different venues and where the law is at what are some other challenges that you are the center is grappling with when it's embarking on a litigation well one of the challenges is just jurisprudentially in the United States we have the still have the challenge that discrimination in terms of pregnancy is not viewed as sex discrimination United States and so the good olden case from 1970s the justice has written about this you know it stands as a big jurisprudential barrier I mean the other biggest barrier I can't think of things that are you know procedural or that kind of thing and bringing public interest litigation I mean our biggest challenge is that we still are dealing with sexism right in American life it is not yet the case wonderful progress that the Justice talked about but we are not at a place where women have equal social political and economic power five percent of women are CEOs of Fortune 500 companies only 20 percent of the Congress is represented by women and even in the legal realm while doors aren't barred anymore we're only seeing at the top firms where Tonga law school graduates go 20 percent of equity partners are women so and we're still dealing with hashtag me too movement we know we're still dealing with discrimination everyday life for women at all levels so there's a lot to still work on and so I would say that and this very big problem in the jurisprudence about not seeing pregnancy discrimination is sex discrimination or the region using the the court might come out differently in view of Gilbert which was Congress's reaction to this incredible decision that discrimination on the basis of pregnancy is not discrimination on the basis of sex so Congress amended title some 7 simply to say discrimination on the basis of pregnancy is discrimination on the basis of sex so with that statutory decision and play would the court reach the same way this isn't that it didn't good W against Aiello obviously excellent question would you have much more insight than I do I would say it actually does bring up a litigation question challenge that we have we do plead equal protection claims of sex discrimination in our cases and they don't get decided by the lower courts because they say if it's for example an abortion rights case we're going to decide this on substantive due process and the liberty interest so it's hard to get it engaged as a constitutional matter Lee what about what about you what it's something described some of the work that you do but also some of the challenges that you face during litigation today what's why I am at the ACLU and I think probably everyone generally knows what the ACLU does and I specialize in immigrants rights and national security largely and and we bring basics what we think are sort of basic civil rights and constitutional claims for immigrants so one case that I'm working on now involves family separation policy or what some people term is zero-tolerance policy where families were coming to the border mainly to seek asylum and their children were being taken away so we brought a national class action in San Diego to stop the practice of separating parents and children the children were very young that's sometimes less than a year and to reunify all those families that are that our were separated and so that's a type of litigation we're doing I don't do and we don't do really nitty-gritty immigration type stuff but more what I would view as basic constitutional rights cases civil rights cases on behalf then we're in community and touching on the sort of the challenges and I think these are probably related to what the justice was talking about but manifest themselves in different ways in so much of my day-to-day is thinking strategically about how to advance the law on how to bring cases I mean in the immigration area I think there have been two really big changes that have affected how we go about that the first is that when I graduated Columbia immigration wasn't an immigration rights really wasn't that big a topic I think there was very little of it law at law schools if you were going out to do civil rights litigation you didn't really think about doing immigration work and so when I started at the ACLU there were very few players and when we were deciding how we thought the best way to bring a case and advance the law we could call maybe one or two other groups around the country who were also doing Nationals so rights litigation in the immigration space and brainstorm with them now there are literally dozens and dozens of groups doing it and so and I think this is not just unique to immigration but I don't know that it's the same in your area and reproductive rights where I think there are still less groups no matter what we may think about the best way to advance the law and the strategic decisions about which case to bring unless we can get literally 60 other groups in line cases are just going to be brought so that really affects a lot of what we do now if we're not going to bring it someone else is going to bring it and someone else is going to bring it then maybe we should be involved I think that's an enormous change for me the other the other fence change for us and I obviously transcends immigrants rights and even the law is just the advent of social media cable news networks that we really cannot do litigation without having some presence out there to get our to get our narrative out there because if we don't someone else is going to put the narrative it also makes it very difficult to have a disciplined narrative it you know I think when I started it used to be you created the narrative in the court papers that's what the court saw maybe there was a little bit of media attention but now the minute you filed a complaint there a cable news shows about it there's Twitter there's social media and so controlling the narrative around a case becomes very difficult and I also think that the number of it means that the number of players who Pratap who see a particular issue and then want to jump in it's automatic and even I think it even goes to managing expectations of clients because the clients in communities may be reading any one of a number of things on the internet that may not be accurate or raising their expectations about what a lawsuit can do I think it affects a whole range of issues for us about bringing strategic litigation I wonder and back in the justices time sort of how often she had to think about other groups bringing a particular case when she made a considered decision that this was k-stew bring it not this case and because and I've heard the justice speak about what you know we tried to mitigate big losses in certain cases and brings whether you know that she had to worry about that many other groups jumping in and filing a case she didn't think she may have thought was ill-advised not only who but individual attorneys once there was Title 7 right so the ACLU could never control litigation the way the end up Lacey P Inc funded in the old days but it really was when Thurgood masters was the only your only hope and if he turned down the case if there's no place else to go right so we had proud of them cases popping up that should not have been brought but a private matter saw something in it right no justice I'm willing to bet you weren't really thinking in terms of social media but what about public education or trying to put forward a particular account narrative in these words of what you were doing the litigation that's something you gave thought to when you were that was the first effort was always a public information legislation and litigation public education was essential because of us there was a mess out there that was fired up by those remember when we started out the notion was if the law differentiates on the basis of gender it's benignly in the woman's favor if it was such a contrast to race discrimination where it was obvious that it was hateful and obvious but there was the notion that the woman was on the pedestal and she got better treatment than the man she didn't have to serve on juries he did it was to disabuse decision-makers on the notion that women were favored by the law and so there had to be public understanding that was something wrong what would that notion so that's quite interested if maybe a flipside of this for you Lee that at the one hand it's very hard to control the narrative but having the mass protests also right creates yeah and I think it cuts both ways for us it's much easier for us to get messages out but on the other hand I don't think we can control them as well given how many places people can go and how many speakers so I think there's a good and bad of it and I'm not wise enough to know at this point how it will all shake out and whether it's ultimately good for civil rights litigation with I suspect it is good but I think it makes our job much more complicated now figuring it out I would say I want to bring you into this because you've thought and written about public and impact litigation from a broader theoretical and advocacy perspective so how do you see the landscape today having changed from the era when the Justice was doing her path-breaking litigation yes so what I see is really resonant of a lot of things that people have been talking about already one of the things that the Justice said that was interesting about the women in combat scenario was that it was too soon to bring that litigation right so you still see the sort of traditional public interest advocacy where you think about what's the right time to bring the case what's the right kind of plaintiff and you chip away incrementally I think the greatest recent example of that really is around same-sex marriage and abolition of sodomy laws you see this incremental over decades chipping away at precedents using federal courts in state courts so that model I think is still being used but there are lots of landscape changes I mean they're the ones that we just described in terms of the number of organizations but I think in general organizations are less rights-creating they are more defensive and a lot of the work they do Lee and the Justice talked about media and and I think that does present difficulties of petroleum media I think it's interesting to hear the media was always part of the equation even in the you know in the 70s but I think it's much more so now to the point where sometimes organizations are doing more organizing more legislative work than they are doing litigation and the most powerful examples of that are extreme shifts to that or organizations that really dissenter courts they think of most of their work as being around social movements and organizing so you see that with groups around economic justice especially and they just do litigation at the margins when they feel that everything else hasn't worked so you see those kinds of changes which I think are responding to changes in the judicial landscape but also responding to the limits of courts courts can't establish all the kinds of rights and protections that we we care about and and so people are trying to use a broader range of strategies although it two points strike me for this one that's interesting because it goes back to Nancy and the justices discussions about Godot League and Gilbert of how a court decision can sort of frame the options for advocacy because of course in economic justice with San Antonio versus Rodriguez it's really shutting off a federal constitutional economic justice claim that may have forced these claims to move in other arenas and dissenter the courts whereas the very success of many of the claims of justice was bringing in the movements allowed those claims to foster prosper but as you were saying lower courts are now going that standard route rather than letting you reframe the other thing that is just very interestingly coming up here is Congress justice you started us talking about Congress and the role of Congress in in in thinking about constitutional rights and and as a tool a letís you were saying and in terms of developing an agenda and it actually makes me want to ask you justice a question as a justice because you've had one one famous is the dissent but I can think of where you said this is really for Congress to act in the Ledbetter case I believe tagline was the ball is now in Congress's court to correct the error and to which my colleagues have fallen so and that was it was it was it was kind of a repeat of the Pregnancy Discrimination Act when everyone came on board lilly side and then the lilly Ledbetter Fair Pay Act was the first piece of legislation that President Obama signed when he took office so Nancy in thinking about legislation what kinds of legislative efforts do you to see are undertaken do you think federal only are you also thinking legislation at the state level in thinking about what's happening in that arena to well we do both you look for openings at the state level I mean right now there's a lot of activity around one of the one of the real barriers to access to abortion service in the United States is the failure of Medicaid to cover because of Supreme Court decision back in 1980 and so there's been a lot of movement the state level and there has been reform at the state level to pick up and four states to decide that they are going to do Medicaid coverage and so that's an example where you switch back to a state strategy if you can't do it federally it's been really tough to get Congress to reconsider its decision in that regard and there are other things like the Women's Health Protection Act is a piece of legislation we've worked on which is addressing the access of the crisis access in the States because so many states despite even the victory at home women's health the restrictions just keep on coming and it's time to have like a Voting Rights Act for access to reproductive health care it's gotten to the point where we have to have something stronger than just going back to court again and again and again and playing whack-a-mole so in that case you've got States their sole calcitriol you're not going to have them pass legislation providing access so we turn to the Congress to look for that interesting and this actually reminds me lee of some litigation that the practicum that gravity and I co-taught at Columbia worked on with you last year where you had you were representing a county in Texas right and Texas had passed a law called s before and we fortunately got help from you both and the great students at Columbia and we challenged that Texas law and what the law said was that counties and cities now had to enforce federal immigration law and so it raised these very complicated legal issues and also difficult political and policy issues because a lot of big cities as well as some cities on the border didn't want to engage in immigration enforcement for their own reasons even if it wasn't necessarily be to protect immigrants rights and then obviously a good portion of Texas wanted it and the law passed but I think that's one of been one of the big changes for us in the immigration area is now when I first is the state involvement when I first started in the 90s all the work was pretty much with the against the federal government and now you see the states playing both a pro immigrant and passing anti-immigrant legislation and so a lot of the work now is dealing with the states may direct suits against the states but also the federal state relationships but I think the other thing that's been interesting is the states coming in to be on our side often and litigating in that and that's another issue that I don't know sort of how much when the Justice was litigating that states were involved in an affirmative civil rights litigation but that's that a change that I've seen over the two decades where we are now having States as partners but also sometimes the states against us but much more so than when I started because that was justice Brennan's idea when the court turned away from his view of things he suggested using state constitutions to establish would he do it should have been established under the Federal Constitution and there is this very interesting again thinking about your point about Congress as sort of the Congress and the court as institutions playing off of each other the states and the federal government as institutions in some sense branches playing off of each other and the institutional capacity at the state level as a tool here what what about that from from what you say else so something that circles back to what you said before is that there's more litigation happening affirmative litigation in state courts because those roots weren't available federally constitutionally so an example of that is around educational equity this is following justice Brennan's invitation right that you didn't get a federal constitutional right to equal education or to protect people on the basis of poverty but a lot of state constitutions have educational equity provision so you saw through the 80s and 90s a lot of litigation at the state level to secure various rights to educational equity and that's just one of a number of areas but I think another trend that you're really beginning to see that harkens to what we were talking about a moment ago about the practicum and doing work on preemption is that states are also places that there's a lot of work done legislatively that some people in Lee's position would see is curtailing particular rights right so there's been more and in not just Congress but legislative strategies at the state level to deal with questions like reproductive rights as Nancy said to some states are pre-empting when localities raise the minimum wage states are saying locality you can't do that anymore when localities are passing ordinances that are protecting people on the basis of sexual orientation states are pre-empting that and that's because some groups are also investing a lot in state legislatures and and trying to to get state legislators to to adopt the policies that they want and that's a big change I mean that I've seen even over the last 15 years since I stopped and I'm practicing was that people now have to know state court procedure and and understand these mechanisms at the state level so so another change that you see when you take sort of a little bit of a historical overview and this maybe dates back I think to the era of Goldwater and to the sort of birth of modern conservative movement is a originally a lot of this impact litigation was challenges on undemocratic and courts seizing power over policy but one of the things that we have seen is that the groups that are seeking that have expanded and there has also been a robust growth of conservative public interest groups bringing particular claims and you know pushing the law and the courts in an in an opposite direction so I'm curious to see does that impact your work or do you have to think of not just about how the courts might be going but what kinds of responses you might get from litigation on the other side it was it was justice Powell yes and made that a popular idea and who used the ACLU as its Marlon's and we should have aside to protect business interest organizations like the ACLU and now they have to see in the green briefs the amici briefs in a file how many organizations there are yeah yeah and the whole amicus practice has really expanded quite a lot as well right I think even from the even from the days when I clerked and you'd see the stack of briefs you had to read through and it seemed pretty big here it's gotten even even bigger so so you guys are doing those things yes right we're not only in the United States for not only suing state governments but we also are now dealing with lawsuits that are brought by particularly organizations using the you know religious Restoration Act saying that you know if you have a broad-based rule like under the Affordable Care Act that employers have to provide contraceptions and the full range of contraceptives so employees that that's an infringement on religious freedom and those there's a lot of very active religious freedom litigation that's brought by organizations that are not on the same side it's broad access to reproductive health care so that is absolutely true and so it's a lot of like three-dimensional chess which is coming from many of state and federal courts we have moving between the legislature and the courts and we have both state governments and coming in on both sides and we have public interest groups coming in on both sides and I will say not just here but internationally we find that you know groups that are based here also groups that we meet abroad yeah I think we're seeing the same thing and how much those briefs matter from concerned I think varies from the litigation I think at the state let it matters more because the states may not be aware of all the national arguments that are being made in those groups we'll bring it in matters less I think to us when we're litigating against the Solicitor General was probably going to make all the arguments that they would make anyway but it's definitely an issue there's def more players to contend with and they are bringing their own affirmative lawsuits even in the immigration area and I think for the states the states you have certain states bringing their own litigation both Pro and against and so that complicates the landscape as well I mean I think you've written justice though that in some sense it's the it's the ultimate compliment to the litigation model that it is one that a variety of groups have found to be conducive to you know they I think you said what imitation is a sign of tribute to the to the to the model of the litigation is that right yes yeah if you should be highly complimented by that but also some of it is worrisome well they can think of the way the First Amendment was used in the last term of court and a beauty case yes one example in funding that's a funding they know this is count the California law about the basura case the the crisis centers and they have to just post a simple notice saying if you are interested in contraception or abortion the state will make that available to you and this is the number that you should call this is it email address you should you should contact and that was attacked on his speech three-window shear force compelling people to speak so so it does seem as if the the model was complicated when you were litigating justice and the sort of parts and pieces and venues have expanded this leads me to ask you all what do you think's next you know when you look forward and think about impact litigation as part of a rights advocacy strategy and all its maybe you could start us off what do you see as the as the new horizons and the new issues and the shape this may take going forward yeah so I think one just touching on what you just said we're just talking about nobody you know one group or movement owns the strategy anymore the idea of using the courts to articulate certain kinds of individual rights is broadly used across the political or ideological spectrum and so you see for example robust litigation around issues like affirmative action and they use some of the very same kind of tropes and modes of litigation that were used by traditional public interest organizations like choosing very sympathetic plaintiffs and advancing a kind of broader public education message around it so I think you'll continue to see that that no one group alludes it and no one issue I think it's gonna be used by a lot of different groups I think there's some issues where impact litigation are gonna continue to be very important for groups now I'm gonna just call traditional public interest groups like the ACLU and center of reproductive rights and obviously that's around reproductive rights immigrant rights but also racial justice issues like voter ID I think it's going to be a very big issue on the horizon and we're not gonna talk about issues that might be before the court but I think just issue wise and then I guess a third thing I would say is that I do think that a core issue for a lot of groups on the ground has to do with economic justice and it's not really clear what the role of the courts is going to be in articulating some of those issues I mean many of those kinds of changes are about policy changes that we don't think of as implicating the courts but I think the courts will be involved in some way I've already mentioned the preemption context when you know Democratic branches enact wage increases and you know other branches say the states say that you can't do it that gets into court right and I think there will be other ways in which those kinds of questions are going to be litigated and maybe people will even push for certain kinds of of constitutional rights that implicate economic justice like indigent defense representation I think some of these issues around bail reform obviously are going to be in the courts so I see those economic issues is really coming to a for more and justice do you want to weigh in here do you think your your courts docket a public interest litigation is going to be shrinking anytime soon what about YouTube well I would jump in and say to build on what LT was saying is that I think the issues around economic justice or first of all percolating and particularly those like the Center for Reproductive Rights that use a human rights approach to the work in the u.s. you don't start with litigation because as we know we don't have economic rights under our Constitution but you begin with working closely with communities having leadership from communities and defining what the issues are and and maternal health and the shocking racial disparities i maternal mortality are usually that we work on and again it's not something you litigate right away but you begin to build that work and build that community and build that build that normative framework but then it does come in I mean we do file amicus briefs bringing in the human rights perspective and the economic you know rights issues into our cases and I think eventually you know I there's actually you know one of the one of the things that I think will I am hoping be different 25 years from now when we're having this conversation at Columbia is that the economic and social rights that are so important will be much more embedded into our law now maybe so that's going to come up through the state constitutional decisions we often can bring those rulings but also come up from as the world as we see other democracies under their new constitutions recognizing these rights as we have the International decisions on human rights which include you know we are parties to treaties like the race discrimination treaty the United States is a party to the International Covenant on Civil and Political Rights obviously a party to the torture convention and decisions are coming out even under the Civil and Political Rights sphere like we brought two cases against Ireland on the right to abortion and those those economic rights are even working there the the the Human Rights Committee at the UN used in economic rights analysis as well as cruel inhumane integrating treatment in finding for the Irish women that they should not have to leave their country to get access to abortion so I think there's going to be as we also hope that obviously the individual liberty and the equal protection sex discrimination theories will come together I'm hopeful that twenty five years from now we'll be seeing more of that in our constitutional law that's fascinating Lee what about you I agree with both both those comments I think economic rights are gonna be a big issue going forward and obviously I don't think there's gonna necessarily be cases broad say we have economic rights but there there are so many issues that implicate those those economic rights you know whether it's bail that all of t mentioned or maternal health or all those I think those are gonna be our big issues going forward and the proliferation of the number of groups who do the litigation I think is gonna continue I think it's just too easy to know what's going on in the world and too easy to file a lawsuit so I think that will happen and I think it'll become increasingly hard to control the litigation strategy and narrative and you know maybe it's a situation where the more is better I think we'll have to to wait and see but I think it make it definitely makes it more complicated and I think also just how much we we see about civil rights in the courts also depends on the area I mean one of the things about immigrants rights is you can bring certain affirmative cases but a lot of what you do is necessarily reactive just like if you were doing criminal work because there's always going to be immigrant were being placed into deportation proceedings who are gonna need defenses and so whether or not we decrease the amount of impact litigation we want to do in the courts there's always going to be that amount of litigation because your people are going to just like in the their convicted of a crime they're gonna need a defense if trial and appeal but the same thing happens in the immigration area the only other thing I wanted to just touch on about social media and I think how much publicity cases get now is the one thing and since we're here in front of mostly students the one thing I do feel is dangerous is it sometimes gets to feel like unless your case is earth-shattering and it's getting all this attention in the social media world it's not worth bringing and I would just say to students you know if you take one k-- it doesn't have to be an impact case it can be one case helping one person and if you help that person it's an enormous accomplishment and to not necessarily get caught up in all the media blitz around cases because it's very easy to think that if you're not bringing an impact case that's getting all this social media buzz it wasn't worth it and the truth is there's only so many of those cases and to not lose sight of that because I do feel as if everyone wants to bring a case now that's gonna blow up the social media world and that's a dangerous thing I think I see for a young lawyer starting out in the public interest world just aside lie I know that the Dean Lester asked you a sort of similar question but I'd love to get your advice to our students in terms of thinking about off of the line Lewis was talking about and thinking about representation and a career in representation any any guiding thoughts given your experience starting out and and how much do you think students can sort of strategize about where to go versus take the case that that presents an opportunity and see where see where it leads you I have often said to the law students if what all you're gonna do with your degree is turn over a buck for a paying client then you will be very much like a plumber you have a skill that you can do but if you are a true professional you will use your degree don't make things a little better for other people and as Lee said it can be on an individual basis it can be something you're passionate about like if you really care about what's happening to the environment if you do that you get a satisfaction that you would never get if you're simply turning over a buck I love that line on that I think we should [Applause] [Music] and now it's it's you're all turn so I'm going to turn it back to Dean Lester so one of the most fun aspects of the process of preparing for today's event was to invite students to submit questions that they would like us to ask Justice Ginsburg or the panel so some of the I've been madly crossing things out while the panel's been going on because many of the questions that students submitted have just been addressed beautifully and very eloquently by either the justice or other members of the panel during the discussion that just preceded but there's still lots to talk about so let me do a follow on question I think to some of the the themes in really the penultimate topic about what's next for impact litigation and I just want to push that theme a little further Justice Ginsburg perhaps you hinted at this when earlier when you raised a question about whether title 7 ought to be amended whether we ought to be working on the legislative front a student asked the question very directly do you think that impact litigation has a future in a in a time when there's an often hostile judiciary or would you suggest other avenues you know should we just be looking at other avenues and I'd invite other members of the panel too to opine on that as well after Justice Ginsburg offers her views you can regard the legislature and the courts as having a conversation with each other I think the lilly Ledbetter cases one good example of that it found in court but it was very successful in the legislature I mentioned earlier the Pregnancy Discrimination Act was a and there was a court decision went one way and legislature reacted another way so I think that's a healthy thing in a democracy to have a dialogue between the legislature and and I would say that I think that depending on where the Supreme Court goes over the next you know decade or so we'll think about constitutional amendments I mean all this discussion of originalism has certainly gotten me to think about perhaps what it would be like to have a recent amendment with some recent history around that and I'm also struck when I'm reading cases from other countries that have new constitutions and particularly I think about cases out of Colombia where the court is able to talk about we had a recent consensus on this because we just enacted this constitution with these provisions and so we know in the case of Colombia that what our Constitution cares about most of us marginalize people and it's there to protect them and so you know I think we're gonna have some really interesting conversations about constitutional amendments and the years ahead remember that our Constitution is powerfully hard to amend everyone is involved in the effort to get an equal rights amendment knows that or I'm living in a place where there is taxation without representation absolutely I came into my career after graduate from college during the ER a count down campaign and worked hard on that and maybe I'm going out on my career the same way we'll say any other panelists on this well the one thing that strikes me justice and it's your language of conversation that brings it out and you'll from an academic standpoint there have been a lot of criticisms of impact litigation often claiming it hasn't been effective that it was really the legislative response that made the difference or attacking it as undemocratic and anti majoritarian but those critiques I think maybe take too narrow a slice and simply look to the extent they they they have merits even on these terms but they they look too much at the litigation isolation from the litigation is one step in a conversation or one step in a back and forth dialogue and when you broaden the picture as you did with the idea of a conversation I think it conveys a bit of a respond to those concerns about this form of advocacy so this is a question specifically for Justice Ginsburg one of our students asks what case did you find most difficult to decide or have you found most difficult to decide while on the Supreme Court I would mention that not a single case not one case would we do the best we can however dense the case but the category of cases that has given me tremendous anxiety since my first day on the court on the death penalty cases because if I were if I were Queen there would be no death penalty I did make a choice that I would not do it when an emotional dude they said the death penalty is unconstitutional in your needle circumstances I'm part of a collegial bench and I try as best I can to move the law in the in the right direction but every one of those cases it's better for me especially the 11th hour stays until late November those it's the last day and all the stops are pulled out one of the things about death cases is it most of these people have a visible representation at the trial at the murder trial and as they get closer to the execution day the representation gets better they have one of the dissenters representing him I think if that kind of representation for available in the first instance instead of the last we wouldn't have any death sentences I have a quote that I tell my fed courts class justice that I should figure out if it actually is something that that you have said which is that any the when you see a capital conviction it's a sign perhaps of ineffective assistance of counsel so another question for Justice Ginsburg what has been the greatest surprise for you while serving on the court these 25 years if you surprised it my old chief when he joined the judgment in the VMI case justice Rehnquist I could count on to be a dissenter in the cases in which I prevail but then he rejoined the judgment in via my leaving Scalia as a soul the center and then when this man assigns to himself the decision upholding the Family and Medical Leave Act and that was a very fine decision or when the old chief have been criticized Miranda up and down when I don't know how many times and it's confronted with the question the frontal attack overruled Miranda and he decides no so he's my example of as long as one lives 100 [Laughter] so this question can be one that everybody on the panel can participate in what is one thing you wish you had known as a law student Nancy and I were law students together cider do you have anything that I should have known back then we weren't just law students together Lee was my note editor on the Law Review I suppose if I'd known that I was going to still be sitting with him you know 30 years later that might be something I mean I think in general I actually always tell law students this your law school classmates will be your professional colleagues the rest of your life I think Lee and I did okay on that with our professional colleagues but just remember like they they may end up you want to be a public interest lawyer they may be in private practice and may be very helpful and supportive as pro bono counsel with you they may be on the bench some day they may be in government positions so don't get all high-handed about you're going to do public interest law remember these are going to be your colleagues or professional colleagues and treat everyone well well I would I have known that one day during my lifetime women would be 50% of the law students at Columbia would have Jillian Lester as Dean when I went to law school there was never a woman in the in the classroom so to me people are people some people are impatient because we haven't reached Nirvana but but the change is just enormous [Applause] [Music] I mean I think for me it's more pedestrian I think when I was in law school at times it felt like it was taking forever and and then when it was over it just felt like it went by in a flash and I experienced that with my students on all the time that first year just feels like oh my gosh I'm so afraid and it's taking forever and then they're just graduating and there are all these things that people wish they had done clinics they wish they had taken externships classes that where you get to examine the law critically in a way that you don't have time to do in practice even going to events such as this I mean especially at Columbia you get to take advantage of so many people think a lot of people took advantage of this event analogy just to be clear this was not even close right but I mean people march into that law school every every day for lunch and and sometimes people say they're too busy for those things and it's just know this is the one time you're really gonna have that so I think it's just soaking up all of that learning and interaction and related to that I think I would taken more advantage of the faculty and realize that I could walk into a fact and and so there were so many people that were doing interesting things and probably done more of that had I not been so sort of blinded by just focus on there but I had to get done and take advantage more of that probably well I would I would definitely echo that that actually it really does brighten up our day when the students come by and we get to meet new students and see what they're doing but I would also add realize that you are young and you're low or not we're not yes we are not but also that your life in the law is long and you have a career that can when going into the law it can open up a variety of different opportunities for you and experiment with them see see where your passion lies don't rush to have to get out and and and be on a preset path and don't lose the courage to pursue pursue your passions and what drive see so a question for Justice Ginsburg I think this might have come from a one of how many one elzar in the room a lot of you out there okay so do you remember the first time you were called on the hospital and if so what was the case it was my first day in law school my very first class it was Civil Procedure I had a superb teacher Ben Kaplan and it wasn't that I was called on but there was a young man who was called on and he gave a brilliant answer and then he volunteered a few more times and I came home and said to my husband if they're all that smart I'll never make it in this place that man was Tony Lewis who was our Nieman Fellow that end so he was taking took 12 horns constitutional litigation seminar my first-year procedure of course telling where they were at all right I said a challenge for me is I will volunteer in class as often as that young lad so I decided that I wasn't gonna be quiet I wasn't gonna hide in the back hope not to be called up now that meant there had to be a high level of preparation on my part I thankfully did not have a section that continued ladies day Lady Day was a professor who ignored the women for the end Sonesta except one day ladies daddy announced in advance then when I'm up sitting sitting at all them in the first row and they were called on excessively and depressive it's something very funny that happened in Colombia when I was teaching here when there was the great Billie Jean King Bobby raised match and a professor I think he was from the business school teaching the course in law school and he announced in his class well tomorrow will be ladies day because he thought that that was that was a celebration of the history of it was well everybody please join me in a round of applause for our panelists and Vanessa since they're so wonderful panel [Applause] [Music] you

Channel: Columbia Law School

Views: 9,782

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Keywords: law, Ruth Bader Ginsburg, RBG, Notorious RBG, Ginsburg, Columbia Law School, Columbia Law, Law School, CLS, Columbia, Columbia University, SCOTUS, Supreme Court, Supreme Court of the United States, U.S. Supreme Court, Judge, Justice, Legal system, Law, Lawyers, Law Students, ACLU, public interest law, litigation

Id: cKDTRETM-Tc

Length: 85min 22sec (5122 seconds)

Published: Tue Sep 25 2018