A Conversation with Justice Ruth Bader Ginsburg (HD)

[Applause] good evening I'm Ted Ruger the Dean of the University of Pennsylvania law school it is my great pleasure to welcome Justice Ruth Bader Ginsburg and this year's Owen Roberts Memorial Lecture and constitutional law we're very proud to partner with the National Constitution Center tonight Penn president Amy Gutmann will introduce Justice Ginsburg along with National Constitution Center president and CEO Jeff Rossen in a moment but first I want to introduce a bit of the history of the Roberts lecture the lecture is named for Supreme Court justice and Pamela Dean Owen Jay Roberts and was established in 1956 co-sponsored by the law school and it's chapter order of the coif the the wording of the original agreement about the lecture I'm gonna quote here it says the lectures to be delivered by quote a nationally prominent person in either public or academic life who might be expected to make a significant contribution in legal thought I think we've met and exceeded and blown out of the water that standard tonight with Justice Ginsburg and we celebrate justice Ginsburg's 25 years on the Supreme Court as well as groundbreaking contributions to American jurisprudence both while on the court and in her tremendous career as a legal scholar as a litigator and as a lower court judge before she joined the court Justice Roberts himself was a graduate of Penn law served for 20 years on the Penn law faculty then went off to a tremendous career in mostly in government service he served as justice on the Supreme Court from 1930 to 1945 and then in a move which would be unthinkable today left the Supreme Court to become Dean of Penn law so we don't get any ideas so we we we honor his memory and his legacy and there's no better way to top the honor it than by Justice Ruth Bader Ginsburg tonight it's now my pleasure to introduce pens president Amy Gutmann who since 2004 has been a visionary leader at Penn and and nationally and internationally as the eighth president of the University of Pennsylvania her academic background as a moral and political philosopher is reflected in her commitment at Penn's increasing diversity interdisciplinary excellence civic leadership and service she's won national recognitions for her achievements in these areas under her leadership Penn has become the nation's largest university offering an all grant financial aid policy to meet the full need of a diverse array of undergraduate students and has significantly expanded the number of students from low income middle income and first generation college families at Penn dr. Guttman is a member of the global university leaders forum an advisory group to the World Economic Forum on matters of global policy importance and was a founding member of the global colloquium of university presidents which advises the UN secretary-general on educational and global policy issues she served as chair of President Obama's Presidential Commission for the Study of bioethics which helped explore and define ethical issues ranging from neuroscience to Ebola to epidemic disease at Penn and throughout the country she has been a champion of free open debate and civil society and has built welcoming and inclusive and excellent university environments we're very proud to call her our president here at Penn Amy [Applause] thank you Thank You Ted and it's wonderful to welcome so many friends of the National Constitution Center of the University of Pennsylvania of Penn law and of notorious RBG being being a judicial rockstar is not an oxymoron it is one of the most important services to our society that I for one can Majan and I know I speak for everybody here tonight when I say how absolutely thrilled we are to welcome the Associate Justice Ruth Bader Ginsburg and I consider it a personal privilege to introduce someone I above all admire and with whom I also feel a deep kinship ten years ago we both appeared it was my privilege it was her service to appear together in a documentary a PBS documentary entitled the Jewish Americans I appeared once she was the most powerful voice throughout this documentary and I'll never forget the version of the her life story that she told very vividly in a riddle that comes in many versions but here's her version of the riddle what's the difference between a book keeper in New York's garment district and a Supreme Court justice one generation that is a quintessentially American story story of the American Dream that her life is dedicated to keeping alive this is the story of a woman who by grit and determination by brains and courage by compassion and a fiery commitment to liberty and justice for all rose from unadorned beginnings to become one of the most respected and yes most beloved justices of our time this is the story of our very special guest Associate Justice Ruth Bader Ginsburg over the course of the past 25 years Ruth Bader Ginsburg has won renown for her brilliant and steadfast service on the Supreme Court of the United States and her service to the US Constitution the US Constitution that unites our nation and some would say I would say defines our nation name to the Supreme Court by President Clinton in 1993 Ruth Bader Ginsburg has distinguished herself as a brilliant justice a passionate advocate for justice and equality before the law and an astute consensus builder within the court she has lived the life of a pioneer as a young woman she left Flatbush Brooklyn another reason why I feel a deep kinship to her I to it was born in Flatbush Brooklyn she left to attend college at Cornell where she graduated at the top of her class of course she was among just nine women allowed to enter Harvard Law School at a time when the Dean asked how could she justify taking a spot from a qualified man far from dissuading her such challenges to basic equity galvanized a steely resolve she went on to become the first tenured woman faculty member at Columbia Law School this is not the first time Associate Justice Ginsburg has graced Philadelphia with her presence in 2007 we had the privilege at the University of Pennsylvania to bestow upon her our highest honor an honorary degree a Doctor of Law honoris causa we did this in recognition of the great contributions she is made to making our country evermore just equitable and true to the highest ideals of the United States Constitution among a lifetime of pioneering efforts in pursuit of Justice Ruth Bader Ginsburg became a founder of the American Civil Liberties Union women's rights project arguing six cases before the Supreme Court winning five of them an amazing batting average for anyone a lifetime amazing record she also co-authored the first law school case book on sex discrimination Associate Justice Ginsburg is widely and justly heralded as our nation's preeminent jurist of gender law and gender equity by her relentless work and formidable public intellect she has advanced the legal status of women and the cause of justice for women and men for girls and boys everywhere we are simply thrilled to have her here with us this evening thank you so much Associate Justice Ginsburg our notorious RBG a thank you [Applause] I also have the true pleasure of welcoming to the stage with justice Ginsberg a champion of our Constitution a civic leader here in Philadelphia and a dear friend Jeffrey Rosen a professor of law at George Washington University a noted commentator on legal affairs and the author of six books since 2013 Jeffrey has served as the president and CEO of the National Constitution Center Jeffrey has brought energy excitement and above all vision to the important work of the National Constitution Center he is a true civic leader we are grateful for his leadership of this truly unique institution so truth in advertising this evenings Roberts lecture will not be a lecture at all but rather a candid conversation between two minds who are steeped in the history the values and the challenges of American constitutional law I know we're in for a fascinating evening I know there's never been a more important time to have this conversation so please join me ladies and gentlemen in welcoming Jeffrey Rosen and the Honorable Ruth Bader Ginsberg please everyone be seated Justice Ginsburg it is such an honor and a pleasure to welcome you back to the National Constitution Center the last time I saw you was on October 20th when you did me and my wife Lauren who is here in the front row the great honor of marrying us so thank you for that wonderful experience and since then as president Gutmann said you have indeed been a judicial rockstar on tour up the entire Acela corridor with standing ovations and thrilled audiences and your travels have taken you to Sundance where you saw a documentary about yourself so I'm going to begin by asking how was the documentary in my not unbiased opinion they have done a fantastic job the two filmmakers Betsy West and Julie Cohen did a series for PBS some years ago called the makers and it was about the women's movement in the 1970s so it included betty Friedan bella absent Gloria Steinem Susan Sontag Phyllis Schlafly and it was done so well that I was persuaded to say yes to their proposal well our task tonight and as Amy said this is an important moment to have this conversation is to take stock of the progress of gender equality from the time you began in the 1970s through your time on the Supreme Court to this remarkable moment we're in right now and because it's on everyone's mind and because you've been asked about it every single place that you've gone over the last couple of weeks I need to begin and I want to have a everyone is here for your thoughts on this what are your thoughts on the me to movement and will it prove lasting progress for women's equality it's a question I was asked this afternoon at the University of Pennsylvania to law school and I think what I wanted to to convey there was that sexual harassment of women has gone on forever but it didn't get headlines until a woman named Catherine MacKinnon wrote a book called sexual harassment in the workplace and that was the start of liddie litigation under Title 7 a few cases came to the Supreme Court and they all came out right but still women were hesitant I think one of the principal reasons were they feared that they would not be believed the number of women who have come forward as a result of the me2 movement has been astonishing and my hope is not just that it is here to stay but that it is as effective for the woman who works as a maid in a hotel as it is for Hollywood stars [Applause] many women are wondering will this prove a lasting advance for women or like previous discussions of sexual harassment in the 90s will this advance pass I think it will have staying power because people and not only women men as well as women realize how wrong the behavior was and how it subordinated women so we shall see but my prediction is that it is here to stay why is it happening now you've told me in conversations over the years that its activism by men and women that causes its cultural and political change is there something about what Millennials are doing that has caused the me to movement or is it coming from something else I think we can compare it to the gay rights movement when people stepped up and said this is who I am and I am proud of it they came out in numbers instead of hiding and disguising that movement developed very rapidly and I think we're seeing the same thing with sexual harassment did you see this one coming no no and why did it happen just when it did I've heard from women who told stories about Harvey Weinstein many many years ago and then the times decided to do a big story on it I think it was the press finally taking notice of something that they knew long before that propelled it into the place it now holds in the public arena what is your advice to all women young women and to all women about how to sustain the momentum of the movement and to make its changes lasting I I think the the number of cases that we have seen how this has burgeoned I've heard from lawyers that women have come forward with stories about things that happened many years ago and even though the statute of limitations has long passed these cases are being settled one interesting thing is whether it will be an end to the confidentiality pleasure women who complain and brought suit were offered settlements in which they would agree that they would never disclose what they had complained about I suspect we will not see those agreements anymore what are the legal changes necessary to make these reforms permanent we have we have the legal reform we've had it for a long time title 7 it was argued early on that sexual harassment has nothing to do with gender discrimination everyone knows boys will be boys and that was that was that but there there are state and federal laws the laws are there the laws are in place it takes people to step forward and use them at Sundance you told your old your own me to story of an encounter you had an ax at Cornell long ago yeah tell the audience about that I was in a chemistry class at Cornell I was not very adept in in the laboratory so a teaching assistant decided to help me out help me out so much that he offered to give me a practice exam the day before the actual exam when I went into the room and looked at the exam paper I found that it was the practice exam and then I knew immediately what this instructor expected as the payoff so instead of being shy I confronted him and said how dare you do this that's one of many many stories that every woman of my vintage knows how dare you do this what would you advise women to say in similar situations should they be similarly strong yes this is bad behavior you should not engage in it and I will not submit to it but I think it's easier today because there are numbers to support the woman who says so and we will no longer hear as often with as we did in the past she's making it up and this is an important question what is your advice to men in this new regime where where people are trying to behave well and figure out what the new norms are just just think how you would like the women in your family to be treated particularly your daughters and when you see men behaving in ways they shouldn't you should tell them this is improper behavior there is a debate both among women and among men about what sort of behavior should be sanctionable and one group is saying that it's wrong to lump together violent behavior alike Harvey Weinstein with less dramatic forms of sexual misconduct and others say that all misconduct is wrong and should be sanctioned well there are degrees there's degrees of conduct yes but anytime a woman is put in a position where she is inferior subordinate this would be she said she should complain that should not be a frame there are also calls from people of different perspectives to from catherine deneuve to others of rather different perspectives for due process what about due process but that must not be ignored and it goes beyond sexual harassment the person who is accused has a right to defend herself or himself and we certainly should not lose sight of that recognizing that these are complaints that should be heard so there's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard and that's one of the basic tenants of our system as you know everyone deserves a fair you're hearing are some of those criticisms of the college code is valid do I think they are yes I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality yeah one or the other it's it's both we we have a system of justice where people who are a huge get due process so it's just applying to this field what we have applied generally some women also fear backlash they worry that women may have less opportunity for mentorship at work because guys are afraid of interacting with them let me ask you as a man do you think that you you will be hesitant to encourage women because of the me to movement on the contrary I have felt like many men sensitized to the plight of women by hearing these stories and it seems like an entirely salutary thing in the workplace yes so what is next your entire towering career as a litigator and advocate and as Justice has studied the interplay between political and social movements and the law and you said you said just this afternoon that the courts are the least important part of social change first comes political activism in public education and then legislation and then the courts so looking forward 10 or 20 years how does the momentum of the me2 movement get reflected in legislation and in judicial decisions well as I said I think the law is there and there are the people now who will use it in increasing numbers what I said before is that rights have to start with people who want them and then the court is a reactive institution there was a fine federal judge on the 5th circuit judge Goldberg who once said the courts don't make the conflagrations but they do their best to put them out the Barcia greenberger and her wonderful talk this afternoon mentioned some of your dissenting opinions in the sexual harassment cases is there any area for progress in the law and might your descent speed independent and dissent there are two kinds of dissents in a statutory case your aim is to get the legislature to correct the error into which the court has fallen and I think this afternoon lilly ledbetter case was the sterling example of that really was an area manager and a Goodyear tire plant she was when she started working there in 1978 the only woman doing that job and one day a co-worker put in her mailbox a slip of paper with a series of numbers really recognized immediately what that was it was the pay that all the area managers were receiving and Lilly recognized immediately that she was being paid less than any of the men indeed less than the person she had trained to do the job so she screwed up her courage and bought a title seven suit discrimination suit against Goodyear and she did win a substantial verdict it was a jury trial when the case got to the Supreme Court they dismissed it on the ground that she sued too late the law title seven requires that you complain within 180 days of the discriminatory incident well Lily had let the system go on for two decades and didn't complain but of course if she had first how could she she didn't have the salary figures but assuming that she did and she complained that's the first indication that she was paid less the defense is clear the defense would have been oh it has nothing to do with Lily being a woman she just doesn't do the job as well but then when she's done the job year after year and gets good performance ratings that defense is no longer available and she has a winnable case but the court said she sued too late there was a simple basis for saying she was on time every paycheck that she received reflected the differential so she could sue within 180 days of any paycheck the reaction to Lily's case oh by the way I ended the dissent by saying the ball is now in Congress's court to correct the error the court has made and in very short order the lilly Ledbetter Fair Pay Act was passed with overwhelming majorities on both sides of the aisle and it was the first piece of legislation that President Obama signed when he when he took office you can write the dissent like that when it's a statutory case because Congress can fix it if it's a constitutional case Congress can't fix it it would have the change would have to come about either through constitutional amendment and our Constitution is powerfully hard to amend Congress left it out it it takes three-fourths of the states to ratify I know from experience with the Equal Rights Amendment how hard it is amend the Constitution so the next best thing is for not the better next best thing is it is the better thing it's for the court to correct the mistake in his made and we have had a long tradition of dissents becoming the law of the land one example the free speech the sense of justices Holmes and Brandeis and you Jeff know a lot about though it was another example is the dreadful Dred Scott decision there were two dissenters who recognized that was wrong it was the first Justice John Marshall Harlan who dissented in the so called civil rights cases and then some 13 years later and Plessy against Ferguson I think it's good when we look back to see that there were people who thought the court judgment was wrong and wrote the judgment that was the starts out as a dissent and then in the next generation becomes becomes the opinion of the court which of your powerful dissents do you most hope to become a majority well I'd like to see a Shelby County under that was a case involving the Voting Rights Act of 1965 it was the way the law works is this if a state or our city or county has had a history of blocking african-americans from voting any change in voting legislation would have to be pre-cleared either by the Civil Rights Division of the Department of Justice or by a three-judge court sitting in the District of Columbia the the courts position was that was 1965 it's many years later some states that discriminated may not be discriminating anymore so the Congress has to come up with a new formula well what member of Congress is going to stand up and say my district is still discriminating and I thought that my colleagues were not as restrained as they should be because they should have respected the overwhelming vote in the Congress to renew to renew the Voting Rights Act well that's one decision how about two or three more oh do you have one of my decisions well one of them is the this so-called with the big partial-birth abortion hmm this is a medical procedure that is no one's first choice but it may be the only option before a woman and when the court refused to recognize that a ban on such a procedure just overlooked that some women had no other choice so that's a decision I was like to see over if you go back in time to decisions from the 70s the Supreme Court held that Medicaid coverage was not available for any abortion therapeutics or non-therapeutic which left us with the situation in in our country where any woman of means any woman who can afford to go to a neighboring state will have access to abortion the people who won't are poor people who can't travel who can't take off days from work and that's a salary situation people ask me oh well what would happen if roe v wade were overruled and my answer is for affluent women won't make any difference there will be a number of states that simply won't return - the way it once was at the time of roe v-- wade decision there were four states New York among them that provided abortion in the in the first trimester with no no questions asked those states and others will not go back to the way it was and so the situation that we have I think is most unfortunate that the people who are disadvantaged are the most voiceless people and poor women so that's that decision and other restrictive abortion decisions I would like to see overrode the Carhartt dissent was one where you set out the vision of access to abortion as central to equal citizenship which goes back to your woman's right her ability to control our own destiny how should that right be applied more broadly and what are its implications if the court were to take it seriously it would mean that women would have access to something that should be part of health care like any other condition one of your great hopes is for men and women to take equal responsibility for child care I had that remarkable moment when I interviewed you years ago at the 90s and you pointed to the picture of your son-in-law with a with your been infant grandson and said that's my hope for the future when men take equal responsibility for a woman with child care why is that so central to women's equality and are we doing better now than we were at 10 or 20 years ago and we are doing a lot better and when I was in my last year of law school I was attending Columbia Law School my daughter was between 3 & 4 there was only one nursery school in that entire area would take the child from 9:00 to 12:00 or 2:00 to 5:00 by the time my daughter was a mother herself and teaching at Columbia Law School there were over two dozen full-day daycare facilities in that area a few of my law clerks have taken parental leave mail law clerks its more common than it once was my very first year on the court I I was served by a law clerk who had been with me on the DC Circuit and his application was tremendously attractive to me why because he wrote that he was studying law at night at Georgetown and reason was that his wife an economist had a good job at the World Bank at that and oh one other thing he submitted as his writing sample his first year of law school of writing exercise and it was the theory of contract as illustrated in Magnus Ring cycle how is the say about that - I asked I asked the chief this is way back 1930 93 and 94 if he could have access to West law and Lexus at home and that you said no the law clerks were expected to stay however it was necessary on the premises the next year after that all of the law clerks had access to West law and Lexus at home will say well save the vogner question take it offline but I know that the audience's is burning this is from 1986 and I'm saying this because this is such a golden time and it's very important that the audience understand how far you think we've come from when you started off and where we have to go so you said in 1986 in this piece and thoughts on the nineteen era debate between special versus equal treatment feminism were I clean my principle affirmative action plan would have three legs first it would promote equal educational opportunity and effective job training for women second my plan would give men encouragement and incentives to share more evenly with women the joys responsibilities worries upsets and sometimes tedium of raising children from infancy to adulthood and third the plan would make quality daycare available from infancy how far have we come in achieving those goals we we have come a considerable distance but as what I just described is wonderfully school in an area to now I mean the changes I've seen in like my lifetime has been enormous of course we haven't reached Nirvana but the progress that we made makes me hopeful for for the future by the way I said in that affirmative action plan that my affirmative action plan would be for men as teachers in kindergarten and grade schools I think that that would be wonderful for children if they could see men in caring roles just as they see women there was a piece just yesterday in the New York Times about how kids who saw toys that defied gender stereotypes were more likely to think that girls should play with trucks Ms magazine had a record of songs for children and one of them was William has a doll they were the the recording is called free to be you and me was done by Marlo Thomas I grew up on that TV show and I mean I think it's in my mind right now yeah well what is your message to the next generation of feminists what are the goals that remain to be achieved if the unconscious bias how awfully hard to get a handle on unconscious bias well my favorite illustration is the symphony orchestra and when I was growing up who never saw a woman in a symphony orchestra except perhaps the harpist how a child meant who was a well-known critic for the music critic for the New York Times swore that he could tell the difference blindfolded whether it was a woman playing the piano or man or the violin so someone had the bride a bright idea putting him to the test blindfolded him and what happened he was all mixed up he identifies Janice says a man were when it was a woman and he was good enough to admit that unconscious bias was operating so someone then got the even brighter idea to put up a curtain between the people who auditioning and the judges and that simple device almost overnight led to women showing up and symphony orchestras in numbers now I wish we couldn't have a drop curtain in every field of endeavor but one example of the unconscious bias that still exists was a title seven suit brought in the late 70s and it was the plaintiffs were women who had not succeeded in getting middle management jobs and 18t they did very very well all the stand-in criteria but they flunked disproportionately at the last stage and what was that last stage it was what was called a total person test the total person test was an executive interviewing the candidate for promotion why what woman dropping out disproportionately it was because of a certain discomfort that the executive had in dealing with someone who is different if he's interviewing a man well he so who knows this person is just like me and he's comfortable but if it's a woman or a member of a minority group he feels uncomfortable and this person is a stranger to him and that shows up in how he rates the candidate so the solution to unconscious bias is to bring more no more women hit her this is something justice O'Connor often said that women of our age should get out there and make a good show and that will encourage other women and the more women that are out there doing things the better off all of us will be [Applause] it's a time of such anxiety the political system is so polarized men and women are figuring out how to interact with each other what is your advice about how civil interactions are possible and I do want to share the advice that you gave to Lauren and me and that you give to so many couples were you married then explain what the lesson is because it's profound and it's very wise this if you are referring to my mother-in-law's advice on my wedding day I was married in my husband's home and just before the ceremony my mother-in-law took me aside and said I'd like to tell you the secret of a happy marriage be fine to know what it is she said dear in every good marriage it helps sometimes to be a little death and that is advice I have applied not only in 56 years of marriage but to this day in my current workplace and open unkind word I said you just turn out it's a profound lesson about never reacting in anger and always maintaining your equanimity and if others lose their temper not losing yours emotions like anger remorse and jealousy are not productive they will not accomplish anything so let's keep them under control so when in the days when I was a flaming feminist litigator I never said two judges who asked an improper question you sexist pig well I'll tell you one such incident so I was arguing in Casey in Trenton New Jersey before three-judge federal district court and the judge is commented to me well women are doing fine these days the opportunities for them are equal everywhere and I said your honor flight training isn't available to women oh he said even in the military they have equal opportunity tonight and I'm sitting with flight training is not available his response to me was oh don't show me that women have been in the air forever I know from experience with my own wife and daughter so what is my comeback I met some men who don't have their feet planted firmly on the ground nice you don't hear that anymore but in the 70s when judges knew that it was improper to make racist jokes a women was still fair game it must have been extraordinary the things that you heard and experienced back then and yet you always kept your cool yes because I wanted to to win my case my old chief who I came to love chief justice rehnquist especially after he wrote the decision upholding the family medical and Leave Act but my very last argument in the Supreme Court was in the fall of 1978 it was a case about putting women on juries young people today are astonished when they're told that it was not all that long ago when women were either not put on the jury rolls they could opt in if they wanted to but they were not called otherwise or they were on the roll but a woman any woman was exempted so I divided that argument with a public defender from Kansas City Missouri I had 15 minutes and I was about to sit down confident that I had gotten out everything I wanted to to convey and then justice rehnquist I commented so mrs. Ginsburg you won't settle for susan b anthony face on the new dollar then burger said something chief justice burger said something polite and that was that and the cab going back to Union Station I thought why didn't I why wasn't I quick enough to think of the perfect answer which would have been no your honor tokens it was not so long ago that most of the social clubs in this city New York Washington DC woman Nana only so whenever I was asked to speak at those clubs I said I'm not going to speak I had a place that wouldn't welcome me as a member some very distinguished groups under the American Law Institute for example when the council met in New York they had dinners at the Century Association and I wrote her an explanation of why they should not be meeting there most people agreed with me some didn't because they switched to the Harvard club where the food was not comparable at first my first encounter with that was when my husband was working for a law firm in New York and they had the holiday party at a club that did not admit women the women associates let it be known that that was improper they weren't listened to so the next year none of the women associates showed up at a holiday party and the year after that the holiday party was held at a place that welcomed women as well as men it's extraordinary to think of how different things were from a world where women couldn't go to holiday parties or join clubs to today does it seem like extraordinary progress or is it inadequate what is your assessment of the progress that we've made since then well it's the progress has been enormous and that's what makes me hopeful for for the future the signs are all around us I think in the elections in the fall of 2018 there will be more women running for office than ever before on every level level local state federal when it when I was nominated for the good job I now have I think the Senate was conscious that there were no women on the Judiciary Committee so they added to for my nomination and they have never gone back to an all-male committee since then is it is it a good thing that women are galvanized to run for office and what would you tell those who are hesitating and trying to decide whether oh I said I think the the women today have a lot more support than they once did of groups encouraging and campaigning for them well so I think even up our core Sandra Day O'Connor was appointed in 1981 had never been a woman before when I was appointed to the DC Circuit by Jimmy Carter Jimmy Carter was a man who changed literally changed the complexion of the u.s. judiciary it wasn't a lawyer himself he looked around at the federal judiciary and he said they all look just like me just like me they're all white men but I thought how the great United States looks and I want my judges to be drawn from all of the people and not just some of them so he made an effort to appoint minority group members and women not as one at a time curiosities but in numbers so that he appointed I think over 25 women to the federal trial court federal district court he pointed 11 to courts of appeals and I was one of the lucky 11 and when people asked did you always want to be a judge I smile I'll say when I when I graduated from law school there were no women on the federal appellate bench there had been Flores Island who was appointed in 1934 by President Roosevelt and she retired in 1959 and so then they were none they were none until surely Hufstedler was appointed by President Johnson to the Court of Appeals for the Ninth Circuit Carter made Shirley Hostetler the first-ever Secretary of Education so then they went on again and then Jimmy Carter became president and set a pattern that no president has departed from Reagan President Reagan not to be outdone was determined to appoint the first woman to the Supreme Court he made a nationwide search and came up with a splendid candidate Sandra Day O'Connor when I was at a new justice invariably and an oral argument session a one world or another would call me justice O'Connor they knew there was a woman on the Supreme Court so a woman's voice meant it had to be justice O'Connor nowadays there are three of us one-third of the bench and because up I seniority I said close to the middle justice Sotomayor is on one end Justice Kagan on the other and anyone who is watched argument as the court knows that my female colleagues are not shrinking violence they're very active in the colloquy that goes on it argument when Justice Scalia was with us I think he and justice Sotomayor had a contest who could ask the most questions you you were interested in that survey that found that the women justices were interrupted more what is your considered judgment about what that was well I think my colleagues will notice that and perhaps be more careful but we all we do interrupt each other as the former law clerks here know and one of the most amusing incidents of that there was an over an argument and justice O'Connor who often asked the first question and I saw stood there she was done so I asked a question and she said just a minute I'm not finished I apologized to her at lunch she said Ruth don't give it another thought the guys do it to each other all the time the next day in USA Today is a headline rude Ruth interrupts Sandra and I was asked to comment on that so I said what Sandra had said at lunch as a man interrupts each other regularly and you haven't noticed that that reporter to his credit watch the court through the next two sittings and said you know you're right I just never noticed it when it was two men and then an academic who specials to you was language wrote an op-ed piece in The Washington Post to explain how this happened how I interrupted Sandra and she said well Ruth is Justice Ginsburg is a Jew who grew up in in New York City and those people talk fast justice O'Connor is a girl of the Golden West laid-back speak slowly well people who knew the two of us recognized immediately that Sandra got out two words to my every one but it's a wonderful example of the stereotype you have a very different style on the bench and in conversation on the bench you are right in there but in conversation all of your friends know that it's in the pauses that we have to wait because you're about to say something very special yes my lockers know that too that I tried to think before I speak well it's something that my husband learned as a lot teacher he was concerned that the men were volunteering much more often than the women and one of his colleagues gave him advice she said don't ever call on the first hand that's raised that will invariably be a man wait five six second and you will see women's hands go up because the women were thinking before they spoke I'm so you know we're out of time but I just am reluctant to let you go because I feel like we have so much to learn from you I want to ask you you you what I have learned so much from you what what and why why is it good for men if as you said recently you said there should be nine women on the Supreme Court I didn't say there should be they the question was when will there be enough so they'll be enough when they're online yeah but most of our history except the times when the court was less than nine one time they were ten but they were until justice O'Connor all men and nobody thought anything was unusual about that but you weren't joking and it would be good for men and women we have had state Supreme Court's with all women I think Minnesota did for a while we have a number of states that have had a majority of women our neighbor to the north Canada has a woman as their chief justice and for women so we're catching up and why is it good is it because as you say so powerfully generalizations about the way men and women are can't guide you in particular cases and therefore it shouldn't matter whether there are nine women there is a life experience that women have that brings something to the table I think a collegial body is much better off to have diverse people of different backgrounds and experience that can make our discussions more informed and one case where it was evident was a 13 year old girl who was suspected of having the wrong kind of pills in school and she was taken to the girls restroom and she was strip-searched the pills that she had in her purse I think there was one advil and one aspirin after she was strip-searched and no dr. Banton found she was put in a chair in front of the principal's office and her mother was called to take her home her mother was same beside herself that her daughter had been humiliated in that way so she brought a suit under our anti-discrimination laws under 1983 and at the oral argument your oral argument took a light tone and one of my colleagues said the boys undressed in front of each other in the locker room and there's nothing nothing embarrassing about that and my response was that the thirteen-year-old girl is not like a 13 year old boy in that regard it's a difficult stage in her growing up and there was suddenly no more jokes I guess my colleagues were thinking of their wives of their daughters but that kind of insight I had because I've grown up female so it's not that women decide cases differently than men they don't there was a woman on the Supreme Court of Minnesota Jean Coyne who said at the end of the day a wise old man and a wise old woman will reach the same judgment but nevertheless she said we bring something to the table that was absent when did you just share it was Oh male can men become more enlightened well I think you could answer that for yourself okay you're wiser than I am thank uestion will men become more yeah you that you can see what happened in the 70s up until then the Supreme Court never saw a gender-based classification that it didn't like or at least that it didn't think was constitutional one of my favorite cases from their not so good old days is Gossett against Cleary a woman owned a tavern and her daughter with her bartender the state of Michigan passed a law that said her women couldn't tend bar unless they were married to the married or the daughter of a male the tavern owner well that meant that these two women would be put out of business the Supreme Court made in light of that case talking starting out with talking about Chaucer's old ell wife and then somehow instead of saying yes women a perfectly capable of tending bar said well when women need to be protected bars are sometimes unpleasant things go on to their great credit the Michigan and alcoholic beverages authority when the Supreme Court said that the law was okay it decided they they were not they were not going to enforce the law so the Gossett's were able to keep their tavern but that's we in fact when I went to law school in that case Gossard against Cleary was described in an abbreviated paragraph as some one example of the Supreme Court letting go of its stranglehold on social and economic legislation it's a justification for this was this was really health and safety legislation to protect women from the rowdy drunks the Supreme Court justices never thought that the ban didn't apply to the bar maids the the women who took the drinks to the table and were much more in danger of the rowdy drunks than the woman standing behind the bar that's where we were not so long ago and when Wendell and Hoyt a woman from Hillsborough County Florida had a bitter dispute with her philandering abusive husband and was humiliated to the breaking point so she took out she saw us young son's baseball bat in the corner of the room took it and with all her might hit her husband over the head he fell against the stone floor end of their altercation beginning of the murder prosecution there were no women on her jury her thought was that if women were there and not necessarily would she be acquitted but she might be convicted of the lesser crime of manslaughter not murder well she was convicted of murder by an all-male jury and the argument of the Supreme Court was she doesn't have the opportunity for a jury drawn from a cross-section of the population because half the population is left out the Supreme Court said in 1961 that law is simply reflecting women's place at the center of home and family life in the next decade three cases in a row as the court made it clear that women had to be called just as the man that jury duty is an obligation that citizens have obligations as well as rights and if you exempt women you are saying they're expendable we don't need them to be part of the administration of a justice system so the changes I have seen in my long life have been just enormous your account of the human stories behind these cases so vividly brings those changes to life at a Constitution Center event two years ago you suggested that we create a series on those human stories we did that with c-span for the wonderful landmark cases series and it was so popular that it's coming back by popular demand and we're launching the second season here next Monday what cases did you you we are for the second season we're doing everything from the cat's privacy case to the civil rights cases with done Marbury vs. Madison and I think and hope we're doing vmi which is your great gender discrimination case - but you were absolutely right - telling those human stories helps us understand how we had reenactments the Supreme Court Historical Society puts on reenactments and we've done Bradwell against illinois that was the case in the 1870s of Myra Bradwell qualified to be admitted to the bar but turned down because she was a woman back in that case the state of Illinois was so sure that they would win it they didn't even show up to argue they did a reenactment of gossiped against Cleary and what a Brandeis this case is brother against Arthur you you had the most riveting talk at the New York Historical Society about Muller and Brad well and I invite the audience to check it out because it's an incredible story of evolution well I've been selfish and keeping you this long but I'm so reluctant to part and we we need to do that now but I'll end with a very obvious but important question you said this afternoon at this wonderful symposium and law school where the students asked such great question you said you were optimistic about the future because you had hope for the Millennials yeah which was wonderful to hear and I want to know and I know that a whole audience does too what is your advice to those Millennials about how they can best advance the cause of justice not alone but in alliance with like-minded people I was impressed at heartened by the women's March and DC which now been repeated in many places all over the country young people should appreciate the values on which our nation is based and how precious that they are and if they don't become part of the crowd that seeks to uphold them you know what something that learned it has it if the spirit of Liberty dies in the hearts of the people there's no court capable of restoring it but I can see the spirit of my my grandchildren and their friends and I have faith in this generation just coming and to adulthood Justice Ginsburg for all you have done to advance the causes of liberty and equality and to defend the Constitution of the United States thank you so much thank you thank you okay thank you very very much

Channel: National Constitution Center

Views: 17,644

Keywords: Supreme Court, Ruth Bader Ginsburg, National Constitution Center

Id: uEZhKSmNkSI

Length: 85min 49sec (5149 seconds)

Published: Wed Feb 14 2018