[APPLAUSE] Good afternoon. My name is Erwin
Chemerinsky, and I'm tremendously fortunate to
be the dean of Berkeley Law. This is a very special
occasion for us. It is the inaugural Herma
Hill Kay Memorial Lecture. Herma Hill Kay taught at
Berkeley Law for 57 years. She was the second woman to be
on the Berkeley Law faculty. She spent a decade as
dean, the first woman dean on the faculty. She was a mentor to literally
thousands of students. She was an expert in
many fields of law-- family law, conflicts of
law, feminist jurisprudence. This is what I hope will be
the first of many lectures to come in honor
of Herma Hill Kay, and we could not possibly have
a more distinguished speaker to be the inaugural
Herma Hill Kay Memorial lecturer than Justice
Ruth Bader Ginsburg. [APPLAUSE] I want to describe for you
the program for the afternoon. I'm going to do all of the
introductions at the beginning because you're not
here to listen to me. You're here to hear the
inaugural Herma Hill Kay Memorial Lecture. I am going to yield the podium
to our chancellor, Carol Christ. Just a quick
introduction for those who haven't had the
wonderful opportunity to meet Chancellor Christ-- after getting her degree
in English, her PhD, from Yale University, she
joined the Berkeley faculty as an English professor in 1970. She was thus a colleague and
close friend with Herma Hill Kay for many years. She went from being professor
to being chair of the department to being dean to being
the executive vice chancellor and provost. She then went to
Smith College, where she served as
president for 11 years, coming back to join the
faculty at Berkeley. She then stepped in as
interim executive vice chancellor and provost and in
2017 became our chancellor. As I said on other
occasions, I've been a law professor
a long time, but I've never seen a university
president or chancellor as universally admired,
revered as Chancellor Christ. After Chancellor
Christ, we're then going to hear
reflections on Herma Hill Kay from Justice Ginsburg. I know it is cliche in
introducing a speaker to say that the person needs
no introduction, but I cannot imagine an instance
where it is more true than this one. After all, this is the
first justice in history who is widely publicly
known by just initials. So just a quick biography-- she attended Cornell University
and then Harvard Law School and Columbia Law School. After working as researcher,
she became a professor at Rutgers Law School and
then at Columbia Law School. She was the founder of the
ACLU Women's Rights Project, and she litigated the
initial landmark cases before the Supreme Court with
regard to women's rights. She was appointed the United
States Court of Appeals for the District
of Columbia Circuit by President Jimmy Carter, and
in 1993, President Bill Clinton named her to be an associate
justice on the United States Supreme Court. After Justice Ginsburg with
her reflections, my colleague, Professor Pamela Samuelson. Professor Samuelson went
to the University of Hawaii and then to Yale Law School. She then became a very
distinguished law professor, literally one of the
leading figures in the areas of intellectual property law. She was also a colleague of
and close friend to Herma Hill Kay for many years. I also must take
a moment to thank Pam Samuelson her
husband, Bob Glushko, for originating the idea of
having an annual Herma Hill Kay Memorial Lecture, for donating
funds to get it started. And many of our faculty
have also contributed funds, so as I said, this is a lecture
series to go on for many years to come. Then the lecture itself
will be a conversation between Justice Ginsburg and
Berkeley Law Professor Amanda Tyler-- and my colleague,
Professor Tyler, seated, obviously, with
Justice Ginsburg on the stage. First, Tyler went
to Stanford and then to Harvard Law School,
clerked for Judge Guido Calabresi in the Ninth
Circuit Court of Appeals for the Second Circuit, then
had the wonderful privilege of clerking for Justice
Ginsburg on the Supreme Court. After time in
private practice, she was a professor at George
Washington University Law School and joined the Berkeley
Law faculty seven years ago. She's an expert in areas
such as civil procedure and federal courts. I must thank Amanda here
for all of her efforts in bringing Justice
Ginsburg to be the inaugural lecturer in the
Herma Hill Kay Memorial series. Finally, before I
leave the podium, I need to extend thanks. Putting together a
large event like this is a tremendous amount
of work, and many people in the law school really
did work tirelessly to have it happen. So I want to thank Thembi
Anne Jackson, who's the head of Event Service;
Whitney Mello from the Dean's Office; Holly Johnson, who
works in our development office; and I also want to
thank our communications staff, especially Alex
Shapiro and Rachel DeLetto. And if I could, I'd
love to have round of applause for
all of these people who put this event together. [APPLAUSE] And with that, we'll
begin the program after hearing from our terrific
chancellor, Carol Christ. [APPLAUSE] Good afternoon, and
thank you for joining us on this very special occasion. It's both a tremendous
privilege and a true pleasure to welcome US Supreme Court
Associate Justice Ruth Bader Ginsburg to campus for Berkeley
Law's inaugural Herma Hill Kay Memorial Lecture. Justice Ginsburg is one of
the nation's most important legal minds. She's an embodiment of quiet
yet forceful persistence. She's a feminist icon, and
she's a role model for millions. Over more than
half a century, she has fought for women's
equality under the law, founding the Women's
Rights Project at the ACLU, winning landmark victories
in five of the six cases she argued before
the Supreme Court, and supporting gender
equality from the bench, even as she has herself
opened doors for women that had been previously
shut, becoming the first tenured woman
professor at Columbia Law and ultimately the second woman
on the United States Supreme Court. Justice Ginsburg
joins us today in part to honor and memorialize her
friend and fellow trailblazer, former Berkeley Law
Dean, Herma Hill Kay, after whom this new
speaker series is named. When Herma first joined
Berkeley in 1960, she was the second woman on
the law faculty, hired only when the first,
Barbara Armstrong, announced her retirement. Despite encountering
all manner of obstacles, Herma thrived here, becoming
a leading scholar in three separate fields of law-- conflict of laws, family law,
and sex-based discrimination law. As a scholar of
conflict of laws, she authored some of
the most important works of the second half
of the 20th century, including lectures on government
interest analysis that she delivered at the Hague Academy
of International Law in 1989. As an expert in
family law, she was the primary drafter of the
California Family Law Act of 1969, the nation's
first no-fault divorce law, and the Uniform
Marriage and Divorce Act, which has served as a
template for states' laws nationwide. And as a discrimination
law scholar, in 1974, she
co-authored with then Professor Ruth Bader
Ginsburg the first casebook on sex-based discrimination. Herma's brilliance grace,
humor, tact, moral compass, and unyielding resolve
saw her shatter barriers in both the legal
world and at Berkeley. And she served as our
first woman law dean from 1992 to 2000. Afterwards, she
returned to teaching, completing an astonishing
57 years of service to our university before
her death in 2017. I admired Herma from the time I
joined the faculty in 1970 when only 3% of the
faculty were women. I looked eagerly for women
to serve as role models to show me how to be as a woman,
a scholar, and a professional. Herma was that to me. I got to know her well when
I was provost in the 1990s and she was dean
of the law school. We frequently had lunch at
the Women's Faculty Club. I saw her character and her
extraordinary intelligence in those lunches, her deep
commitment to women's issues and to family issues, her
love for the university, her sense of humor, her wisdom. I think she would be so pleased
with this as the first Herma Hill Kay Memorial Lecture. Thank you so much
for joining us today, and thank you in particular
to Professor Pamela Samuelson and her husband,
Dr. Robert Glushko, for their generous
seed gift that led to the creation of this series. As legal scholars, Both Justice
Ginsburg and Herma Hill Kay were, in Herma's words, part
of a small band of outsiders who braved rejection, isolation,
and hostility to establish an initial foothold
in legal education. They helped pave the way paved
the way for a proliferation of women lawyers,
judges, and law professors, and
their broader impact has been felt
throughout the nation and in so many
aspects of society. The ground they broke
is now well trod, and we hold them in our debt. And now to share her own
reflections on Herma, here is Associate Justice
Ruth Bader Ginsburg. [APPLAUSE] Herma Hill Kay
was the 15th woman to hold a tenure-track position
at a law school accredited by the Association of
American Law Schools. For more than 25 years, she
devoted her time and talent to bringing vividly to life the
working days of the 14 women who preceded her in appointments
to AALS-accredited law faculties. And in a final
chapter, she wrote of the women who
came next, achieving tenure-track appointments
in the almost three-score years since 1960. Retrieving this history
was a huge undertaking, one of inestimable value. The book remains
unpublished, but I know the Berkeley faculty
wants genuinely to honor Herma. And so it will be
relentless in making sure the work, for which I wrote
the introduction at Herma's request in August
2015, is soon in print. To tell the story
of the first 14, Herma read their publications. She personally interviewed
the nine still alive when she embarked on the
project, and for all of them, she elicited the remembrances
of colleagues when available and scores of students. Without Herma's
prodigious effort, we would scarcely comprehend how
women altered legal education and the law itself. Most of the pioneers,
the seven appointed from 1919 to 1949 and the
equal number appointed in the next decade, did
not think of themselves as exceptional or courageous. 11 were married. Nine had children. Several were family
law scholars, but most taught
in diverse areas, including commercial law,
corporate law, and oil and gas law. As one of them
commented, we didn't talk about what we were doing. We just did it. Different as they were,
they shared a quality essential to their success-- perseverance. And all of them overcame
the odds against them for the same reason. They found law
study and teaching tremendously fulfilling. Reading Herma's manuscript
more than four years ago, I found one thing missing. Herma told us almost
nothing about herself. It was fitting, I decided,
to address that omission by devoting most
of my introduction to Herma Hill Kay, law teacher,
scholar, reformer nonpareil, and my treasured friend. These remarks convey
what I wrote about Herma. When Herma was a sixth grader
in a rural South Carolina public school, her teacher
witnessed her skill in debate and suggested what she
should do with her life. She should be a lawyer. Undaunted by the profession's
entrenched resistance to women at the bar,
that is just what Herma set out to
do after earning her undergraduate degree
from Southern Methodist University in 1956. Initially told by
famed law professor Karl Llewellyn that she
didn't belong in law school, Herma rejected that
bad advice, and she became a stellar student at
the University of Chicago Law School. There she worked as
a research assistant for path-marking conflict
of law scholar Brainerd Currie and co-authoring two
leading articles with him. On Professor Currie's
recommendation, Herma gained a 1959 clerkship
with California's Supreme Court Justice and later Chief
Justice Roger Traynor, a jurist known
for his brilliance and equally for his humanity. Despite Traynor's strong
endorsement of Herma, Chief Justice of the
United States Earl Warren wasn't up to engaging a woman
as his law clerk in 1960, nor were his fellow justices. Traynor's recommendation
carried heavier weight with the Berkeley
Law faculty where Herma commenced her
career in the academy, and in just three
years, in 1963, she became a full
professor with tenure. Inspired and encouraged
by Berkeley's distinguished Professor
Barbara Armstrong, first woman to achieve tenure
at any law school in the USA, Herma made family law her
field of concentration along with conflict of laws. At a young age, uncommon for
such assignments in 1968, Herma was reported co-reporter
of the Uniform Marriage and Divorce Act. That endeavor of the National
Conference on Uniform State Laws launched no-fault divorce
as an innovation that would sweep the country in 10 years. In the ensuing years, in
California and elsewhere, Herma strived to make marriage
and divorce safer for women. Herma and I first met in 1971
at a Yale Law School-sponsored Women in the Law Conference. For the rest of that decade,
she was my best and dearest working colleague. Together with Kenneth Davidson,
then at SUNY Buffalo Law School, we produced in 1974
the first published set of course materials on sex
discrimination and the law. Before our first
conversation, I knew Herma through her writings. She co-authored with Roger
Cramton and David Currie the casebook I used in
teaching conflict of laws. Her extraordinary talent
as a teacher, I knew well, had garnered many awards,
lectureship invitations, and visiting offers. I was also aware of
Herma's reputation as a woman of style who had
a private pilot's license, flew a Piper Cub weekly,
and navigated San Francisco hills in a sleek yellow Jaguar. Herma had a remarkable quality
not readily captured in words. A certain chemistry
was in play when one met her, something
that magically made you want to be on her side. Herma's skill in the
art of gentle persuasion accounted in significant part
for the prominent post she held in legal and academic circles. In 1973 and 1974, she chaired
Berkeley's academic senate. From 1992 until 2000, she
served as Berkeley Law School's valiant dean, meeting
severe budgetary constraints by honing her skills
as a fundraiser, planning for the law
school's new home, promoting depth and diversity
in faculty appointments, and making the place
more user-conscious and user-friendly. An unflinching partisan
of equal opportunity and affirmative
action, Herma managed to reset Berkeley
Law School's course to advance the admission of
African-American and Hispanic students after the initial
shock of Proposition 209, California's strident
anti-affirmative action measure. Before and after
her deanship, she served the university
and the university senate in various
capacities, sitting on or chairing, by her own
reckoning, 50 zillion committees. Outside the university,
she played lead roles in major legal institutions. She served on the executive
committee of the AALS for four years and became
AALS president in 1989. She chaired the association's
nominating committee in 1992 and was a member of the Journal
of Legal Education Editorial Board from 2001 to 2004. Herma was Secretary of the
American Bar Association's Section on Legal
Education and Admissions to the Bar from 1999 to 2001. She was an executive
committee member of the American Bar
Foundation from 2000 to 2003 and both council and
executive committee member of the prestigious
American Law Institute from 2000 to 2007. In the private
philanthropic domain, she chaired the Russell
Sage Foundation board from 1980 to 1984 and the
Rosenberg Foundation board from 1987 to 1989. For many years, she
served as sole woman on the editorial board
of the Foundation Press, and she counseled the then brand
new Senator Dianne Feinstein on judicial appointments. In that capacity, she strongly
supported my nomination to the US Supreme Court in 1993. Herma was a proponent of
interdisciplinary education, team-teaching law
and anthropology with Laura Nader
in the early 1960s and later law and psychiatry
with Irving Philips. As dean of Berkeley
Law School, she launched the Center
for Clinical Education and made clinical experience
a mainstay of the curriculum. At the Hague Academy of
Private International Law in the summer of 1989,
she delivered a series of influential lectures,
defending Professor Brainerd Currie's interest analysis
approach to resolving conflict of laws, showing how
stunningly she could perform outside an academic milieu. In 1978, she argued flawlessly
before the US Supreme Court [INAUDIBLE] gender
discrimination case. I was in the audience. It was Herma's first
document before a federal appellate bench, and
it could not have been better. A new chapter opened
in Herma's life in 1975 when she married psychiatrist
Carroll Brodsky, widowed father of three boys, the youngest 12,
the older boys in their teens. Carroll was as loving and
supportive as a partner in life can be. Each week during
Herma's deanship, Carroll sent a
gorgeous floral display to brighten the
dean's workspace. And although Herma
stopped piloting planes when she took on the joys
and burdens of family life, she became an avid swimmer
and an accomplished gardener, growing roses and orchids on the
balcony of her Telegraph Hill apartment. Herma's persistent endeavor
for well over a half century was to shape the legal academy
and the legal profession to serve all of the
people law exists-- or should exist-- to
serve and to make law a protector of women's capacity
to chart their own life's course. No person was better
equipped than Herma to write about the
women in law teaching who paved the way for
later faculty and student generations, populations
that reflect the capacity, diversity, and talent of
all of our nation's people. Her comprehensive and
engaging presentation of the history of women
in legal education is cause for celebration. It has lingered too long
in an unpublished state, and I am so pleased to know
that before much longer, it will be in print. Thank you very much. [APPLAUSE] Thank you, Justice Ginsburg,
for this enormous tribute to Herma Hill Kay. I am here, like the justice, to
pay tribute to Herma Hill Kay. Relatively few of the
people who are here today had the benefit of having
Herma either as a colleague or as a teacher. I had the pleasure of having
both of those experiences, but partly, I want today
to help you understand how important she was
to the law school, to the legal profession,
and how much she did. So that was one of
the reasons that we decided to create this lecture
series so that you would know what an amazing
person Herma Kay was and how lucky we
were to have her as our dean for a period
of years and a colleague at the law school, as you heard,
for 57 years, which is amazing. So I'm actually going to
talk about her mostly through pictures. So one of the things
about Herma Kay is her hair was always perfect. And mine never was, but
I thought that was a-- this shows that it
went back a long ways. This is actually
a picture of her, one of six women who
had been admitted to the bar in California. The year that she
was admitted, there were 140 people admitted to
the bar and only six women. That's Herma with a
fancy hat in the middle. And here's the picture
of her as a teacher. This is how I first
got to know her. I had moved to San Francisco
in the hope of building up residency in the
state of California so that I could go to Berkeley
Law School the following year. I was working as a
paralegal, and somehow, I found out about
the class that she was teaching in the evening
about women in the law. And I said, I want
to know what it feels like to go to law school. I want to have an
experience like this. So every week after
I finished my job, I'd basically get in
the BART and come over and participate in this class. And I learned so much,
and one of the things that I learned is that women
aren't treated or weren't, at that time, treated
as equals of men. And I thought that
was outrageous, and so that actually
help motivate me further to go to
law school and to have Herma as my inspiration. And of course,
part of the reason why we're doing this lecture
series is I'm only one of many thousands of women in
particular who were inspired by her and who were
mentored by her and who had the luck to
have her as a teacher. She was as good a teacher to
the men as she was to the women. One of the things
that I liked about her was that she liked everybody,
and she was so good in the classroom. She won awards for
teaching as well as for so many other things. This is actually
a picture of her as the dean of the law school,
the first woman, as you know, to have been named as
the dean, first woman to be named as the dean of
this particular law school. And one of the
things that she did that I think she
was very proud of was she helped to
hire more women and hire minority
faculty members, and this is some of
the group that she had recruited by
before I actually joined the faculty in 1996. But you can imagine
what a thrill it was for me, after
having had her as a teacher before I went to law school,
to come back to Berkeley and to have her as my dean. And she was a champion
not only for hiring of women and
minorities, but also she founded or helped to
found and supported the founding of the Center
for Social Justice, which was actually an initiative
that helped to make the community know
that the people who were applying to
law school, who were interested in social justice-- you can come to Berkeley,
and you can actually do that. And it's one of the
most vital centers that we have now
at the law school. She also championed
the hiring of and the creation of in-house
clinical legal education. Initially, there
was some resistance about doing that because
it's very resource intensive, and for some faculty, it just
seemed like skills training. But in fact, Herma
and Eleanor Swift, who helped create this Center
for Clinical Legal Education were just prescient
in kind of realizing that experiential
learning is a really important and valuable part
of what law school can offer. So here is a picture
of her with some of the deans, former
deans of the law school-- and same suit. But I wanted to actually also
convey what a vital person she was, what a great
sense of humor she had, and how much she
actually tried to make the life kind of interesting. So there was her with
her plane with a dog. Look at how elegant she is
in her black tie outfit. Here she is singing,
actually, at a faculty sketch and played ball. And she's really
good at that, too. And she helped to oversee
the construction of what became the building that
many of us at north addition that many of us have. This is another picture of
her with [INAUDIBLE] people. This is her signature
yellow jacket. She loved that jacket. She wore it all the time. I love that jacket, too. She was great with our alums. She really was a
great person, but to-- actually, some deans are
actually a little shy. She wasn't shy. I think she was a great person. Here she is with Eleanor
Swift, celebrating, and here she is with
her granddaughter and with a couple
of other students. And this is the Lifetime
Achievement Award that Justice Ginsburg
and Herma Kay won. I think it was in 2015. And here is a picture of her in
that signature yellow jacket, giving some remarks, and this
is the two of them receiving the award at the AALS. [APPLAUSE] And with that, I'll
let you see two of her for the rest of the afternoon. Thank you. [APPLAUSE] Thank you, Pam. Well, I have the
distinct privilege of speaking on behalf of
everyone here at UC Berkeley and saying, welcome, justice. We are very thrilled
to have you here and to have you here for
such a very special occasion, honoring Herma Hill Kay. Now, as everyone knows,
you have recently had your fourth
bout with cancer, so I have to ask, how are you? Compared to I was six
months ago, very well. Wonderful. Wonderful. [APPLAUSE] Now you've given me
my opening to ask you my next question, which
I've been dying to ask you. As everyone here
probably also knows, I believe you're the only
Supreme Court Justice whose personal trainer has
published a workout book around your regimen. So I have to ask-- and I know you're also a
regular at the justices gym-- are you back at the gym? Yes, I never left it. Even in my lowest periods,
I couldn't do very much, but I did what I can. I've been working with Bryant
Johnson, author of The RBG Workout book, since 1999. We started at the end
of my first cancer bout, colorectal cancer. My husband said, you looked
like an Auschwitz survivor. You must do something
to build yourself up. So I asked around. Bryant, when he's not training,
is on the clerk's office staff at the US District Court for
the District of Columbia. We have been working
together since 1999. Well, you'll just
have to let me know when you're ready to
run a marathon with me. I'm not quite up to that, but
I do push-ups, flanks, front and side, lots of
weight-bearing exercises. Bryant, for a time, also
helped Justice Breyer and Justice Kagan. We'll have to ask him
when we get here who his favorite client is. So I wanted to say a few words
at the outset about Herma Hill Kay. As your remarks
highlighted, you two were friends going back
decades, and you two actually graduated from law
school the same year, 1959. But as you said,
you met years later, and it's really exciting
and interesting to me-- and I think will be the
audience-- that you wrote the first book on gender
discrimination in response to requests from your students. And a little-known fact is
that the women of Berkeley Law had a huge celebration when
that book came out here. And another thing that you
mentioned is that the first woman appointed as a
law professor at an ABA- and AALS-approved
law school was here-- Barbara Nachtrieb Armstrong. She was appointed in 1919,
which is exactly 100 years ago, and so that's something that
we're very proud of here at Berkeley. Now, Herma, as I
think you mentioned, was the 15th woman law professor
appointed at such a school, and you were the 19th. And you talked about Herma's
book and how important it is that we preserve
it, and I just have to say that I'm
really excited to see it and to see your introduction and
her chronicling of the stories of these first women
law professors in print. So hopefully, we will see
that within the next year, and maybe we'll be
able to entice you back for a celebration. Now I want to talk a
little bit about your life. I have read that you have said
on occasion that you were not thinking that you would be a
lawyer when you were a kid. And I've also recently
been reading a book that you put together, which
is a compilation of things that you've written,
and in it, there is a passage from
something that you wrote for your student newspaper
when you were 13 years old. And you talked in that
piece about the importance of, among other things,
the Magna Carta, the English Bill of
Rights, and the Declaration of Independence. Now, I'm not sure,
but that sounds like somebody who's thinking
she might become a lawyer. It was a very hopeful time. It was the end of
World War II, and I listed as the last of
these great documents the then new UN charter. There was a dream of
one world at peace, and that's what
prompted that article. But I didn't think about
the legal profession because women were not there. So I'm going to
fast-forward a little bit, and you go to
college at Cornell. And you've told me in
the past that that's where you started to think
about maybe becoming a lawyer. How did that happen? Yeah. I was at Cornell from 1950
to 1954, not very good years for our country. There was a huge
Red Scare, and there was a senator from Wisconsin,
Joe McCarthy, who saw a communist in every closet. And he was holding people
before the House Un-American Activities Committee, the Senate
Internal Security Committee, and badgering them
about organizations they had belonged to, socialist
organizations in the height of the Depression in the 1930s. I was then a research assistant
to a great teacher, Robert E. Cushman, who taught
constitutional law to undergraduates, and
he wanted me to be aware that our country was
straying from its most fundamental values. He pointed out that there
were lawyers standing up for people called before the
investigating committees, lawyers who were reminding our
Congress that we have a First Amendment guaranteeing us
the right to think, speak, and write as we believe and
not as a big-brother government tells us is the right way
to think, speak, and write and also that we
have a privilege against self-incrimination. So reading about what
those lawyers were doing, I got the idea
that being a lawyer was a pretty nifty thing. I hoped that I could
get a paying job, but also spend my time trying
to make things a little better in the communities
in which I lived. Now, something else happened
when you were at Cornell. You met a certain
handsome member of the golf team
named Marty Ginsburg. So what was different
about him as opposed to some of the other
guys on campus? [INAUDIBLE] I said,
Marty was the first boy I ever dated who cared
that I had a brain, and we started out
as best friends. Marty had a girlfriend
at Smith College, and I had a boyfriend
at Columbia Law School. But there was a long,
cold week in Ithaca, and Marty had a gray Chevrolet. We would go to the
movies together. We'd go to the college and speak
about anything and everything. And then it dawned on
me after not too long that Marty was ever so much
smarter than my boyfriend at Columbia Law School. So I don't want to say
anything and get myself in trouble with my
former colleagues and one in particular who's
now the dean of Columbia Law School, so I'm going
to just move right on. Now, as I understand
things, together, you decided that you would
pick a profession in the same profession. Yes. How did you wind up going to law
when Marty entered the picture and you were debating this? Early on, medical
school was eliminated, thank goodness for me,
because the chemistry labs in the afternoon interfered
with Marty's golf practice. So then there were choices-- business school, law school. For some reason, Marty
wanted to go to Harvard. The Harvard Business
School didn't admit women in the 1950s. It wasn't until the
middle '60s that they did, so that left law school. I think I can speak for a fair
number of people when I say, I'm really glad that's
where this wound up. Now, Marty graduated
a year ahead of you, and he went to
Harvard and studied his first year of law school. And then after you
graduated, you were married. I'm wondering, when
you got married, did you receive any particularly
useful marriage advice? Oh yes, the best advice
I've ever received, and it came from
my mother-in-law. The day we were married, we
were married in Marty's home. And just before the
ceremony, his mother said, Ruth, I would like to tell you
the secret of a happy marriage. Oh, I'd be delighted to know. What is it? It helps every now and
then to be a little deaf, so if an unkind or
thoughtless word is spoken, you just tune out. You don't hear it. So that is advice I
have followed that only in a marriage for 56 years,
but also to this day in dealing with my colleagues. [LAUGHTER] [APPLAUSE] So following your marriage,
you were off to Fort Sill where Marty had his
military service. And during that
time, you and Marty welcomed your daughter,
Jane, and from there, you went together to Cambridge to
study at Harvard Law School. And you were a
year behind Marty. Now, how many women were there
in your law school class? There were nine women
in a class of over 500. In fact, one of your professors
was in my first-year class, Mel Eisenberg. And that number nine was a big
jump from my husband's class. He was a year ahead of me. His class had five women. Harvard didn't start admitting
women to the law school until-- '50, '51 was the first
year, so I came in '56. When you look today
at the makeup of women in law schools among the
law student populations and at a place like
Berkeley, where I believe our current
population is 60% women, does that make you happy? Overjoyed, yes
that at long last, women are welcomed at
the bar and on the bench. So when you were in law
school, you were also a mother, and you have said
before that having Jane while you were in law
school was not a burden, but was actually an advantage. Can you say
something about that? Everyone else tends to be
consumed by their law studies. My life had balance. I went to class in the morning. I wasted no time. I studied in between classes,
but then at 4 o'clock when the babysitter left,
that was Jane's time. We went to the park. We played silly games. Each part of my life was
a respite from the other. After an intense day
at the law school, I was glad to have
the children's hours. And then when Jane
went to bed, I was ready to go
back to the books. But I think it was
appreciation that there is more to life than law school
that accounts for how I did. [APPLAUSE] You are, without fail,
the hardest-working person I have ever met,
and I have often wondered whether your
legendary work ethic derived from your law school years
because, as many people know, Marty was diagnosed with cancer
while you were in law school together. And I think it's
probably fair to say you were faced with rather
extraordinary circumstances with all that you had on
your respective plate. How did you manage everything
during that period? When Marty was diagnosed
with a virulent cancer, there were precious
few known survivors. He first had massive
surgery, and in those days, I would take my
classes in the morning. I had enlisted very good
people to be note-takers in all of his classes. I would then go to Mass
General, come home, and take care of Jane. But then after his surgery,
he had massive radiation for six weeks every day. And in those days, there
was no chemotherapy. There was only radiation,
and it wasn't pinpointed. So his routine was he would
go to the radiation session, come home, get
sick, fall asleep. He'd wake up about midnight,
and between the hour of midnight till 2:00 in the
morning, whatever he ingested for the day-- well, maybe that was part
of making Marty so eager to get me out of the kitchen. But in any event, he would
then go over the notes that I had collected for him. And he would dictate
to me his senior paper, which was on loss corporations. Tough subject, no doubt. And then when he
was well enough, he had private tutorials
that his classmates would come to our apartment
and bring Marty up to speed. He attended two weeks of
classes that final semester, and he ended up with
the highest grades he'd ever gotten in law
school because he had the best teachers, his own classmates. But we just took
each day as it came, and we were going to prevail. I think after those
hard months, I decided that whatever came
my way, I could handle it. When you look back,
was there any silver lining to Marty getting sick
so early in your family? Well, one was-- and I know
now from my own personal experience-- if you have survived cancer,
you have a zest for life that you didn't have
before, that you count each day as a blessing. Now, because Marty graduated
a year ahead of you and he accepted a job in
New York, as everyone knows, you and Jane moved
to New York with him. And you enrolled at
Columbia Law School where you took your final year. You graduated tied first for
your class, and finding a job-- notwithstanding Harvard Law
Review, Columbia Law Review, graduating with such honors-- was very difficult. But you
were able to get a clerkship, and one of your great mentors,
Professor Gerald Gunther, helped secure it, but
he had to secure it under rather interesting terms. How did he do that? I graduated from
law school in 1959. There was no Title VII. There was no anti-discrimination
in employment law, so employers were upfront
about wanting no lady lawyers. Some of the sign-up sheets for
interviews that were posted at Columbia said, men only. A very few firms were willing
to take a chance on a woman, but no firm was ready
to engage a mother. So Gerry Gunther,
who later became a distinguished professor
at Stanford Law School, was determined that he
would get me a clerkship, and he called every Second
Circuit judge, every Eastern District of New York judge,
every Southern District-- and then he settled on one who
had been a Columbia College graduate and a Columbia Law
School graduate-- always took his clerks from Columbia. And he said, Robert, my
recommendation for you this year is Ruth
Bader Ginsburg. And the judge said,
well, her record is good, and I've had women clerks. So that's not a problem. But this is a difficult
job, and sometimes, we have to work late at night,
sometimes even on a Sunday. And I can't risk she will
be there when I need her. So Gunther gave the judge
an offer he couldn't refuse. He said, give her a chance,
and if she doesn't work out, there's a young man
in her class who was going to a downtown firm
who will come in and take over. That was the carrot. The stick was, if you
don't give her a chance, I will never recommend another
Columbia Law student to you. [APPLAUSE] The huge challenge was to
get your foot in the door, to get the first job. If you did, you usually did it
at least as well as the men, so the second job
wasn't that same hurdle. I compare my experience
with Justice O'Connor, who went to Stanford Law School-- had very good grades. No one would hire her,
so what did she do? She volunteered to work
for a county attorney free for four months. And her proposal
was, if you think I'm worth it after four months,
you can put me on the payroll. And that's how Sandra got
her first job in the law. It was that first job
that was a high hurdle. And I've often repeated
Sandra's comment. She said, suppose you and
I had gone to law school in days when there was
no barrier to women. Where would we be now? Now we would be retired partners
from some large law firm, but because we didn't have
that path available to us, we had to find a different one. And we both ended up on
the US Supreme Court. [APPLAUSE] Now, Professor Gunther must
have been an incredible mentor to go to bat for you like that. He also testified, I should
share with the audience, at your confirmation
proceedings, comparing you to the
great Judge Learned Hand. So that's a nice compliment
from one's former professor, and I assume with
his encouragement, you transitioned ultimately
to join the legal academy. As we said, the justice was
the 19th woman law professor in the country. Herma was the 15th. I want to talk about the terms
of your appointment at Rutgers. So you join the law
faculty in 1963. This is an important
year because it's the year that the Equal
Pay Act became law, and so it was no longer legal
to pay men and women differently for the same job. And yet you were
paid differently than your male counterparts. Why was that? The Equal Pay Act passed,
but it didn't sink in. And when the good
dean at Rutgers-- and he was a very good dean-- told me I would have to take
a substantial cut in pay, I said, I expected that. And I knew that Rutgers was
part of a state university and didn't have a large budget. But when he told me how
much, I was taken aback, and I asked how
much a man who had about my same years in law
school, same experience after, was paid. The dean's answer was rude. He has a wife and two
children to support. You have a husband who has a
good-paying job with a New York law firm. That's the way the thinking was. But the women at Rutgers
Newark, the women in the entire university campus
there, began an equal-pay suit. And after some years, the
suit was settled in 1969. The lowest increase
that any woman got was $6,000, which
in those days was a lot more than it is today. But it took a while
for employers, including academic employers,
to appreciate, first, that the Equal Pay Act was law
and then that Title VII really did prohibit gender-based
discrimination. On that note, I've
wanted to ask you about what happened in your
second year of teaching at Rutgers when
you found yourself on a year-to-year contract. You did not yet
have tenure, and you were pregnant with your second
child, your son, James-- weren't a lot of women
around, and there presumably weren't maternity-leave
policies and the sort of things we take for granted today. How did you navigate that? I didn't tell my colleagues
that I was pregnant, and for the last two
months of the semester, I wore my mother-in-law's
clothes, who's one size larger. And then with contract
in hand, I told them, when I come back for
the fall semester, there'll be a new
member of our family. But that experience
that I had led me-- the first gender-based
discrimination cases I handle were on behalf of pregnant
public school teachers. There was what was
euphemistically called "maternity leave." Maternity leave was unpaid, and
there was no guaranteed right of return. Women were asked to
leave the classroom when their pregnancy began to
show because we mustn't have the little children think
that their teachers swallowed a watermelon. These are women who wanted to
do a day's work for a day's pay and were perfectly capable of
remaining in the classroom. So it was my own
experience that led me to realize discrimination
on the basis of pregnancy is discrimination
on the basis of sex. It took a while for
the Supreme Court. The first cases that came
to the Supreme Court-- the Supreme Court
said, well, it can't be sex-based discrimination
because the world is divided into two categories of people. There are non-pregnant people. That includes women
as well as men. But then there are
these pregnant people, and they are only women. So there's no male
comparator, so it can't be-- Well, when the Supreme Court
made that mistake twice, first under the Constitution,
then under Title VII, there was a huge
lobbying campaign with people from all sides
of the political spectrum, and Congress passed a law that
was the soul of simplicity that said what the law
meant all along. The amendment was,
discrimination on the basis of pregnancy
is discrimination on the basis of sex. So I want to talk shortly
about your litigating career. I do have a question
I want to ask you. You were teaching law, and
you know the curriculum of the law schools well. As you look back and you think
about the first-year curriculum in particular, was there
any particular class that was especially
helpful to you when you later litigated
all those important cases? Far and above any other
class in law school, it was my first-year
civil procedures course. I was skilled at navigating my
way through the federal court. I had a feeling
she might say that. Now, you were recruited
away from Rutgers to Columbia Law School
in 1972, as we've heard, as their first
tenured law professor. And that timing is important
because it is the year that Title VII became
applicable, finally, to higher educational institutions. By this time, you
were litigating. You had started this litigating. And so you're teaching. You're raising two children. You're litigating
path-breaking cases, and you're doing all
this at a time when I think it's fair to say,
based on everything you've said and everything we know, that
society wasn't especially supportive of working women. And so I wanted to ask you,
because one of the leading questions I get from my
students in office hours is, how do you make it work? How do you find this
work-life balance? And in particular, I get a lot
of questions from my students about how they can enter this
extremely demanding profession and also raise a family. And I wonder if
you have any advice from your experience on that. Uh-huh. My number one advice is
choose a partner in life who thinks that your work
is as important as his. [APPLAUSE] And Marty was always
my biggest booster, and he also wanted to be an
equal partner in parenting. He had an idea that a child's
personality was formed in her first year of
life, so even in the days we were at Fort Sill, Marty
was a very caring parent to our daughter. He once said, I have been
supportive of my wife since the beginning of time, and
she has been supportive of me. It's not sacrifice. It's family. And I think that's
pretty special. He was also legendarily
funny, and I'm sure that that kept you
on your toes a little bit over the years. Yes, Marty had a
wonderful sense of humor. One typical example, when I
was a brand new judge on the US Court of Appeals
for the DC Circuit, I was introduced at
receptions as Judge Ginsburg. As often as not, the hand
would go out to Marty, and he would reply,
she is Judge Ginsburg. I'm still hopeful. At the time, it was just after
the court decided Bush v. Gore, and we were attending
theater in New York. When I came back
from intermission, everyone stood up and applauded. And Marty said, oh,
I forgot to tell you, there's a tax lawyers
convention in town. [LAUGHTER] Now, Marty was so important for
so many reasons in your life, but not the least of which is
he handed you the tax court sheets that led to that first
case in a series of cases. It's Moritz [INAUDIBLE]. Moritz, and that case wound
up proving to be a goldmine. It was over a $600 deduction. The two of you
litigated it together. Ultimately, you prevailed
in the Tenth Circuit, and a lot of this is
told in a recent movie, On the Basis of Sex, that it-- The movie, by the way-- the script was written by
my nephew, and I asked him, why did you pick the
Moritz case because it didn't go to the Supreme Court? And he said he wanted to
tell the story of a marriage as much as the story
of the development of a legal strategy. So Charles E.
Moritz had a mother. He took good care of
her, though she was 93. He was a book salesman,
and in order to work, he hired a nurse to
take care of his mother. At the time the tax code
gave a deduction-- $600, not a whole lot-- to a person who took care of
a child, an elderly parent, an infirm relative of any age. The deduction was
available to any woman or any married or divorced man. Charles E. Moritz was
a never-married man, so he didn't fit. He argued his own
case in the tax court. He filed a brief that was
the soul of simplicity. It said, if I were
a dutiful daughter, I would get this deduction. I am a dutiful son. It should make no difference. I once read something that
Marty wrote about this-- or maybe it was a speech-- in which he said it was the
best legal brief he ever read. So this case was so
important because it didn't go to the Supreme
Court, but the government tried to take it to
the Supreme Court. And they did something
in their briefing that was very helpful to you as
you launched the Women's Rights Project. Yes, Congress had
already amended the law so any person could
get the deduction, so there was no
continuing problem. But the government
urged the Supreme Court to take the case nonetheless
because the Tenth Circuit decision casts a cloud
of unconstitutionality on dozens of federal statutes. Now, these were
pre-computer days, but the Defense
Department computer did provide every single
provision of the US code that differentiated
on the basis of sex. So there it was, right
out in front of us, all the laws that needed
to be changed or eliminated through legislation if
you could do it, if not, through litigation. So it was our road map. It was a pearl
beyond price to have that list of federal
statutes that differentiated on the basis of gender. And most of them fit in
with the way the laws were operating at the time. That is, man was
considered the breadwinner, and a spouse would get
benefits as a dependent. If a woman was the
breadwinner, there were no benefits for her spouse
because women were considered, at best, pin-money earners. Their main job was home and
family life, the man winning bread to support the family. What we needed to
do was to break down that separate spheres
notion and have Congress use neutral terms-- wage-earner, not male--
and the same for childcare. One of my favorite cases
was the Wisenfeld case. It was a man whose wife
died in childbirth. Congress had
provided for benefits for a widow who has the
care of a young child, but not for a widower. So my client, Stephen Wisenfeld,
was bound and determined not to work full time till his
child was in school full time, and he thought that
with the social security benefits and the earnings said
he could make and still keep the benefits, he would
have enough to take care of himself and his son. But those benefits were
available only to widows, not widowers. Supreme Court because a
little puzzled by that case. They reached a
unanimous judgment, but there were three reasons. Justice Brennan, who
wrote for the majority, said, Stephen Wisenfeld
is feeling the harm, but the discrimination
was against his wife as wage-earner. She paid the same social
security taxes as a man, but she doesn't get the same
protection for her family. A few of them thought
it was discrimination against the male as parent
because the male parent wouldn't even have the
opportunity to care personally for his child. He would have to work full
time to support the family. Then there was one, who
later became my chief. He was then Justice Rehnquist. He said, this is utterly
irrational from the point of view of the baby. Why should the baby have
care of a sole surviving parent if that parent is female,
but not if the parent is male? So the court was
getting the message. Congress was, too, and this
separate spheres mentality was passe. So I was researching about
you and Herma for this event, and you wrote some years
before that in the foreword to your book that
although men historically have gained the greater
share of power and prestige, they are no less trapped
in their assigned roles. So it was as though
you foresaw that this was going to be a good path
for litigation to finally have the justices understand
and see discrimination. That being said, as you
look back on your arguments, there are two
arguments in which you spoke for over 10
minutes uninterrupted. Putting aside that that would
never happen on the Supreme Court today, why was that? Was it because it was
hard to convince them? I was puzzled. The first argument was
Frontiero against Richardson. I wondered, are
they just indulging me because they
don't think I have anything worthwhile to say,
or are they really listening? I'm beginning to think in a
new way that in that argument-- and I wanted to do something
attention-grabbing, so I quoted from Sarah Grimké,
who was a great abolitionist and feminist. I quoted her line, I ask
no favor for our sex. All I ask of our brethren
is that they take their feet from off our necks. But I think the prevailing
notion among judges was that women were
favorites of the law. For example, many states
didn't put women on juries, or they gave them an
automatic exemption. My state, New York, had
an exemption for a woman. I tried to point out
that that kind of favor says something about how
the society views women. That is, men have to serve. It's obligatory, but the
women are expendable. And if you're a citizen, you
have obligations as well as rights. One is to vote. Another is to serve on
juries, and to exempt women was demeaning in the
sense that the society didn't need women to participate in
the administration of justice. Or take Goesaert against
Cleary, a 1948 case. During World War II when men
were off fighting in the war, women began to occupy
fields that had up till then been reserved for men, and
one popular field for women was bartending. When the war is over,
the state of Michigan passes a law saying,
a woman may not tend bar unless she is
the wife or the daughter of the male tavern owner. The plaintiff in the
case was Goesaert. Goesaert was a woman
who owned a bar. Her daughter was a bartender. This law would have put them
immediately out of business. And the Supreme Court
opinion upholding the law said, this is
protective of women. Bars are unpleasant places. There's a lot of
rowdy people there, and we need to spare
women from that, never, never acknowledging that
the prohibition was only on the bartender who
was behind the bar. Bar maids could take the
drinks to the rowdy men, and that was OK. But it was to get the court to
understand that what was once thought of as protections-- well, as Justice
Brennan put it so well-- the pedestal on which women
are thought to stand more often turns out to be a cage that
confines from contributing to society in any way
that their talent allowed them to contribute. So we're getting them to
understand that women were not the favorites of the law,
that they were hemmed in by these restrictions. Another one-- women couldn't
serve tables at night. Well, at night is when
you get the best tips. It was getting
them to understand that these protections
were protecting men's jobs against women's competition. So you accomplished so
much as an advocate, and you've also done a
great deal as a justice. When you sit down and you
look at the progress that has been made on
gender discrimination over the course of your
lifetime and you look ahead, what work do you think
remains to be done? In the '70s, our
mission was to get rid of the explicit
gender-based classification, and that job was
almost completed by the end of the decade. What remained and is hard to
get at is unconscious bias. And my best example of that
is the symphony orchestra. A well-known music critic for
The New York Times, Howard Taubman, said, blindfold
me, and I can tell you if it's a woman playing
the piano or a man-- or same for the violin. So they decided, some people-- some of his colleagues decided
to put him to the test. So they blindfolded
him, had people play, and he was all mixed up. He said it was a man
when it was a woman. And he came to understand that,
yes, he saw a woman sitting down at the piano, and he
had a lesser expectation of what she would be. A Title VII case
brought in the '70s is also a good illustration. It was brought
against AT&T by women who were disproportionately kept
out of middle-management jobs. And women did as well as
the men on all the criteria, except the very last one, which
they called "the total person test." The total person test is
the interviewer sitting down with candidate for
promotion, and that's where women dropped out. Why? Not because the interviewer was
hell-bent on keeping women out of those jobs, but
because he felt a certain discomfort
dealing with someone who was not like himself. He's confronting a white male. He has a comfort level. If he is confronting someone
of another race or a woman, he's kind of uncomfortable. He doesn't really know
how this person ticks, and that discomfort is reflected
in his giving the woman a lower rating. There was an wonderful case in
the European Court of Justice on this point of
unconscious bias. It involved a certain
province in Germany that had a rule for
government jobs. If there are two people of
roughly equal qualifications, prefer the woman. That was challenged as in
violation of the equality provision of the Rome Treaty,
the principal treaty that started the European Union. But between the
lines, you could see what the court is
appreciating, that it may not be a preference for the woman. It may be just overcoming
the unconscious bias that she would encounter when
the employer had a choice between a woman and a man. So unconscious
bias is a problem. Now, I'm delighted today
when I go to a concert and I see women all
over the orchestra, and women are emerging
as conductors. In my growing-up years,
that was beyond imagining. So I want to jump ahead. We're rapidly
running out of time. My students, normally--
if it were just me up here-- would complain
and say, you're going over, Professor Tyler. I think this is one day
where they might not complain if I go a little bit over. President Carter put you
on the DC Circuit in 1980, and then in 1993,
while Herma Hill Kay was dean of Berkeley Law, you
were put on the Supreme Court. So in what little
time we have left, I want to ask you a
couple of questions about your time on
the Supreme Court. Now, you're starting
your 27th term this month on the Supreme Court, and I know
you're just getting warmed up. But after 26 years, I
wonder whether you look back and you take stock of some of
the things that have happened. And in particular, I
wonder whether there's one opinion that you wrote
of which are most proud. That's a little like, of my
four grandchildren and two step-grandchildren and
one great-grandchild, which one do I love the most? But there are some
opinions that stand out. One is the VMI case, and
Marty's comment about that was, well, it took you 20 years
to win the Vorchheimer case, but you finally did. So what was Vorchheimer? There were two high
schools in Philadelphia for gifted children. One was called Central High
School, and the other Girls High. Central had better math and
science facilities, infinitely better playing fields. When that case came
to the Supreme Court-- the district court had held
in favor of the plaintiff. The Court of Appeals
reversed 2 to 1 so that the tally was 2 to 2. And then the Supreme Court
affirmed the Third Circuit's wrong decision by an
equally divided court. VMI was the same kind of case. The state of Virginia
was making an opportunity available to men that was
not available to women. I would sometimes
ask, well, what woman would want
to go to VMI and go through that rigorous
training and the rat line? And I said, well, I wouldn't. Probably, you wouldn't
either, but there are women who want
to go to VMI and meet all the qualifications. The state can't leave them out. VMI decision is now
[INAUDIBLE] a couple of years ago to celebrate the 25th
anniversary of that decision. They are so proud of
their women cadets who want to be engineers,
nuclear scientists. They like being exposed to
the same rigorous training. They live in the same spartan
quarters that the men do. And the commander is so pleased
with the change in the school. For one thing, they were able
to upgrade their applicant pool by including women. [APPLAUSE] And another case that I love--
so some of my favorite opinions are dissents-- is
Lilly Ledbetter's case. Lilly Ledbetter
was an area manager for a Goodyear Tire plant. She was one of the first
women hired for that position. One day, she found
in her mailbox a slip of paper with
a series of numbers, and she immediately recognized
what those numbers meant. The numbers were the pay
of all the area managers, and Lilly Ledbetter saw
that she was being paid less than the young man that she
had trained to do the job. So she said, I've had it. I've heard about Title VII. I'll sue. She prevailed in
the district court. She got a sizable jury verdict. When the case came
to the Supreme Court, they said, Lilly
Ledbetter sued too late. Title VII requires that you
file a complaint with the Equal Employment
Opportunity Commission within 180 days of the
discriminatory incident. And Lilly Ledbetter, you've been
working there a dozen years. You're way out of time. I tried to make
the point that what would have happened if Lilly
Ledbetter did sue early on. Well, first, the employer
didn't give out pay figures, so how would she know? But assuming she did,
the defense inevitably would have been,
she just doesn't do the job as well as the men. That's why we pay her less. But then she's working
there a dozen years, and she's getting good
performance ratings by the employer. So that defense that she
doesn't do the job as well is off the page. The first woman in a field
that has been dominated by men doesn't want to be
seen as a troublemaker. She doesn't want
to rock the boat. What about the 180-day limit? Well, every paycheck
Lilly Ledbetter received incorporated that
discrimination, so in my view a suit within 180 days of her
most recent paycheck is timely. The tagline of my
dissent in her case was, the ball is now
in Congress's court to correct the error into which
my colleagues have fallen. And in very short order, with
overwhelming majorities-- Republicans as
well as Democrats-- Congress amended the law to
adopt the paycheck theory. And it was the first
piece of legislation that President Obama
signed when he took office. [APPLAUSE] Justice, I could sit
here and do this all day, but I suppose at some
point we have to stop. And unfortunately, I
think we're at time. So I wanted to close
by saying thank you and by bringing someone back
into the conversation who's been looming large and
beautifully over us as we've spoken, Herma Hill Kay. Her legacy here at UC Berkeley
is wonderful and longstanding, and this is the
first of many events that will honor her and
keep that legacy alive. I thought that the
best way to conclude would be to bring her
back into the conversation through her words
and specifically by quoting from her testimony at
your confirmation proceedings. So in 1993, when then dean of
Berkeley Law, Herma Hill Kay, appeared before the Senate
Judiciary Committee, she said that President
Clinton's choice of you was wise and inspired,
and she testified that you think deeply and
choose your words with care. She continued, "I can tell you
that her compassion is as deep as her mind is brilliant. In Ruth Bader
Ginsburg, the president has offered the country a
justice worthy of the title." I couldn't have said
it better myself. Justice, it has been
such a privilege to be up here with you today,
honoring Herma Hill Kay on behalf of UC Berkeley. Thank you for being
with us today. [APPLAUSE] Thank you. [MUSIC PLAYING]
