Supreme Court Justice Ruth Bader Ginsburg On Polarization, Discrimination and Her Favorite Dissent
Hi this is Paul Rand hosted big brains. You know one of the most amazing perks of making a podcast cast. The University of Chicago is having the opportunity to feature some of the most incredible guests who speak on our campus this week Supreme Court Justice Ruth Batur Ginsburg was here for a conversation hosted by Katherine Baker Dean of the Harris School of public policy. Justice Ginsburg spoke about a number of topics that I know big brains listeners will find interesting insightful and telling so for this episode. Please enjoy justice GINSBURG in conversation with Dean Baker at at the University of Chicago. Thank you all for being here. It is the thrill of a lifetime to get to facilitate this conversation and I have to tell you I did not know how many friends I hadn't Chicago until this event was announced announced and then all sorts of people wanted ticket so I'm delighted to have you here and those of you who are watching her mostly and I'm so happy to be so popular in Chicago Justice Ginsburg. There are so many questions that I would like to ask him that. I know the audience would like to ask you but I'd like to start with something very straightforward. How how's the court changed in the years that you've been on it one way. It hasn't changed the the court is the most collegial place I've ever worked more collegial than both law faculties on which I serve for Rutgers Columbia even more collegial than the DC circuit collegiality is very important in our workplace because we couldn't do the job the constitution assigned to us unless we work well together together so the press tends to come to concentrate on our divisions on five three five four decisions but every year in the now twenty six years. I've served on the court. We always agree more often than we disagree. Defy for rate. This last term was about twenty percent but the unity rate at least in the bottom line judgment was twenty nine percent so in that respect the court hasn't changed one important way it has changed is the perception of a by the audience including the ten minute line of of children who stream in and out to observe for a brief time when I was a new justice people people have become accustomed to there being a woman on the US Supreme Court and that woman was Sandra Day O'connor who was the lone woman for twelve years so every now and then when I asked the question the response would be justice O'Conner. Haver Sandra might say I'm just as so caller. She's we don't look alike. We don't talk alike but they heard a woman's voice. They knew there was a woman in the court. It's not that way play any longer because I've been there so long. I sit next to the chief and two left. Some seats down is just <unk> are into the right Justice Kagan. We're all over the bench where one third of the bench in people oh who observed documents <unk> will have built a set my sisters in law on lutts shrinking violets <unk> they participate actively in that goes on our long human and <unk>. Justice Scalia with was with us. It was a competition between Justice Sotomayor and Justice Scalia. Who could ask the most questions at our give it well you of course have a famous friendship with justice? scully that has been commemorated in comedic operas has been the topic of documentaries. Do you have advice. Thanks for rising policymakers in the audience about how to reach across divides of opinion or principal and work with someone one whose opinion may you may disagree with whom you value as a colleague and respect one of the reasons. I was so fond of justice. This collegiate is he had an infectious sense of humor. The first time I heard him speak he was on the faculty the Law Faculty of the University of Chicago and he was speaking on some administrative law topic. I disagreed with a lot of what he said but I was charmed by the way he said it and then when we work together on the DC circuit the bench was three three judges he would times whisper to me during our argument. What he said was so funny. I had all I could do to uh-huh keep them bursting into hysterical laughter. You mentioned that we we shared a passion for opera. We care a lot about families and we also cared about not only getting it right as we saw the right but writing an opinion that at least the lawyers and judges could understand so justice. Scalia worked very hard on his opinions so deny a styles were dotted all a lie. He was fine grammarian. He was the son of the father who taught Latin at Brooklyn College and his mother was a grade school teacher feature so every once in a while he would stop by chambers or call me on the telephone and said you committed radical era. I don't want to embarrass you by circulating Mike Comment to court doc but you should fix it and I in return with sometimes say this opinion is so strident you will be more persuasive Wasif. If you told me that advice he never took. We were super together at the Washington national title opera. We traveled together on judicial exchanges most famously in India where there is a photograph of the two of US riding on a very elegant elephant <unk> friends commented. Why are you sitting in the back of the elephant and I said will the driver said it had something to do with the distribution of weight put the Comic Opera Scalia Ginsburg again y Scalia I because because seniority really matters in our place and he was appointed to the court some years before I would so I miss him very much. <hes> conferences another lively as they were when he was with us you mentioned having. I met him here at the University of Chicago and another another one of your former colleagues justice John Paul Stevens was also a you Chicago alum and he's written about amendments he had written about amendments if that he liked to see to the US Constitution you've spoken eloquently about the equal rights amendment. I wondered what changes you'd like to see to our Constitution when will I it's largely a dream because our constitution is powerfully the hard to women. I know that from experience both with the equal rights amendment and the amendment admit that would give DC representation in Congress so I suppose I I would agree with most of the items on justice Stevens list including the Electoral College but I think it's it's more theoretical than real the prospect that we we will have amendments of the kind I think he also included citizens united campaign financing on on his list. Well you worked tirelessly for women's rights in the years before you joined the court has has the trajectory of women's rights evolved over the last forty years as you would have imagined what's surprising to you what worked. What do you think needs to be done? What are some of the highs and lows in the nineteen seventies litigating gender discrimination cases target would clear lawbooks of the country and the states would just riddled with gender-based classifications. He's in our mission in the seventies was to get rid of all the over gender-based classifications classifications nations that by the way most of the judges I addressed thought operated benignly women's favor so in contrast to race discrimination which everyone recognized was odious most of the judges what is that women were favored by the law if they were treated differently as of preference so for example women were called for jury duty in many states the reason they shouldn't be distracted from <hes> their duties as the homemake end the rear of children. There was a famous case in nineteen forty eight. The State of Michigan had passed a law barring barring women from serving as bartenders unless their husband father owned the establishment so the case who's brought by two women the gossip that's the mother owned the tavern. Her daughter was a bartender and this law would with with them immediately out of business women had come into bartending roles as others during World War Two when there was a short supply of men so women to cover jobs that had once been the problems of men and then I think it was the bartenders union that wanted to get women out of the business so Michigan passes passes law and when it came to the Supreme Court the court treated almost as chope made references to choices old L. Wife but the point was it boris can sometimes be rowdy. Places and women needed did the protection of the falls on the husband. The court never noticed that there was no restriction on barmaids for made the ones who carry the drinks to the table with route but the one who is shielded behind the bar was out of a job. The end of that story is a good one because the liquor commission in Michigan decided even though they had this victory in the Supreme Court they were not going to enforce the law so no woman lost job as a bartender as a result of that decision or it later in nineteen sixty one Gwendolyn Hoyt Hayes Linlin Hoy woman we would today call her abused one day her philandering abusive husband and had you related to the breaking point. She Spied Her son's baseball bat in the corner of the room. She lifted it up with all her might. She hit him over the head. He fell against the stone floor into their altercation. Beginning getting a murder prosecution Gwendolyn was from Hillsborough County in Florida women would not put on the jury rolls if they wanted to serve could come to the clerk's office in volunteer but if they didn't volunteer they weren't called and the Supreme Court's reaction to that case as late as nineteen sixty. One was women have the best of both worlds. If they want to serve they can god but if they don't want to. We willing distract them from their home duties. You could imagine how when the in white reacted to that decision was perhaps a jury including women wouldn't equipped me but they might convict me of the lesson crime of manslaughter instead of worder. She was in fact <unk> murder by all-male l. Jury that was the quote Liberal Warren Court decision ten years later Nineteen seventy-one one supreme court turns in a new direction burgers the chief justice and in that decade in case after case in the Supreme Court struck down gender lines in the based on the then prevailing separate spheres notion that the man was the breadwinner who counted the women will responsible for the home and raising the children so typical example social security male wage-earner dies there are benefits for his widow female wage-earner dies no benefits for the widower that kind of distinction pigeonholing people in roles based on engender almost gone very very few explicit gender lines in the law and all that happened during a years of the so-called conservative Burger record. My explanation for why happen is that society had changed and the court was camping getting up to the way people were living so to earn a family had become commonplace in the sixties and continue to the seventies. The time was ripe so the <unk> made so in thinking about the court court catching up with society and the stability of the law versus the evolution of the law the principle of starry decisiveness is is often used to govern which cases the court takes in thinking about whether something is a matter of settled law or not and it seems as though there is a balancing act between having a stable legal political regulatory environment for people to make decisions and having thing the law evolved to match different society and the different culture and different times it also seems as though the people who call on that principle are often motivated by their view of whether the law is currently in the right place or not but it's very much in the eye of the beholder. What's your view on how stable the law should be and how that principle should drive the evolution of the law along with door behind social change whether the law is just plain wrong as it was in gender classifications holding people back creating artificial barriers to the ability of a person to realize allies her own potential one of the important cases it was decided it was decided in the end of Justice O'Connor's first year on the court so would have been a nineteen eighteen eighty two with the case was titled Hogan University of Michigan School for Women University of Mississippi School for women and there was a young man in holding who wanted to be a nurse. The best versus training was available at Mississippi University for women that he was turned turn down because he was the wrong sex dissenters in that case saw saw the reservation of the school to women as kind of affirmative action but Justice O'Connor understood that there's nothing nothing that will upgrade salaries in the nursing profession. More than having men wanted to do that the job so she she will a very fine opinion. Our target was playing on jobless relatively easy because this these classifications were over. What's left after the job has been done on a clearing the statute books explicit gender-based discrimination is what is sometimes called unconscious bias. The Symphony Orchestra is one example of that growing up. I never saw a woman except perhaps playing the hall. Howard Taubman who is fine critic for the New York Times said blindfolded me and I can tell you with a woman playing the piano or man so they did and he was all mixed up it to his credit. He recognized that when he saw a woman coming on stage he had a lesser expectation than he did for a man someone then got the bright idea why not drop a curtain so the people who are conducting the audition will see the people who are applicants for the position and close to overnight you saw a change in in the makeup of symphony officers that simple device a drop curtain you which sadly we can't do blockade in all fields of human endeavor so one of my favorite cases from the seventies late seventies these was title seven case status seven is our principal anti discrimination in employment law it was against at at and T. for not promoting women to middle management jobs. The women did fine on all the standard certain criteria until the very last one which was called total person tests and the a total person tests was an interview sitting down with the candidate for promotion in having a conversation women dropped out disproportionately fortunately why because the male interviewer confronting someone who looked and like himself there was a certain poor he understood what this person is lying but if it's someone women are the race or if the woman visit discomfort level the interview doesn't really know what makes this person what kind of person she is so his discomfort is owned discovered is reflected in the score that he gives there was a very good case was also seven released by the European Court of Justice which is highest court for the European Union and it was about province in Germany that had rule for public sector jobs. The the field is one that had been dominated by men and there were two candidates one one male the other female in roughly equal in qualifications prefer the female and the way that was explained was colonel. This is not really a- preference for women it is making up for the unconscious bias of a decision maker of the one who selects the person for for the job so unconscious bias remains less than it once was but it is there era and it is an impediment. The other is what's been called the work life balance had we order the work life so that a person can have a home life as well and be be part of raising and the children women still disproportionately take care of the home and the raising of the children but it's changing when I see it I see my law clerks the the years I was on the DC circuit. I received a clerkship applicant application from a man who explained that he was going to Georgetown at night because his wife was economist had a good job the World Bank and so he was the primary custodian of their two young children. I will admit also that what attracted me to him as his writing sample apple was not a lower of you know it was his first year writing legal writing a the paper which was the idea of contract as played out in Wagner. It's ring aw anyway so he is clerking for me and he had he has to pick up. His daughter has soccer practice. I asked the Chief Justice Rehnquist. This is very early days. It wasn't yet the the Internet. This is ninety three to ninety four now as the chief can this law clerk have access to Lexus in west a slow at home absolutely not they have to be on the premises the next year every logger parent or not had access to Lexus and west law at home and I think every one of my colleagues has had many law clerks who are parents the the law clerks meet every Thursday for happy. Be Our and you go out on the patio and join them. Sometimes the happy filled with children of the clerks so you've mentioned these are these are some aspects of the way the work is done that have changed but you've you've mentioned that the collegiality of the court has not changed over these many years <hes> your confirmation hearings looked very different from the confirmation hearings that we see today. Do you think that the confirmation process is in need of reform and if so how do we move past finger pointing to real changes in the procedures I was the beneficiary of a true bipartisan since spirit that was prevailing in Congress and so was my colleague Steven Briar who was appointed in nineteen ninety ninety four Senator Biden chaired the Senate Judiciary Committee but my biggest support on the committee was Orrin Hatch my White House handlers in preparation for the hearing would ask is be questions like you were general counsel to the ACLU from nineteen seventy three to nineteen nineteen eighty during that time the ACLU adopted this or that resolution. How did you vote and had I said stop just stop because there's nothing you can do that will be to be critical of the ACLU and at the hearing not a single center senator asked about my Aclu Connection. Although I was one four ten council I was on the board. I co-founded the ACLU UCLA's women's Rights Project Not one question that wouldn't happen today. They will only three negative votes. Things have changed so it's an it's shows up on both sides of the <music>. I'll my now chief chief. Justice Roberts had also qualifications one could want in a Supreme Court justice <unk> number of negative votes from Democrats and my excellent colleagues SORTA why or an Kagan again multiple negative votes divisions along party lines. I don't know what it will take but we really should get back to the way it was is when people were examining the qualifications of someone to be in a judge rather than trying to guess have they would vote on contentious cases it'd be they'll be great states people on both sides of the aisle who will say enough of this nonsense. Let's do the work that we were elected to do. For All of the people of the United Concedes. I hope I will see that restoration in my lifetime the so following up on the idea of the things that have changed in society the and the evolution of the law in response to that there are many constitutional provision that focus on the power of government but there really aren't any the focus on the power of corporations and that's changed a lot over the centuries people think about the power our of corporations and antitrust and pricing or about in technology privacy and the flow of information the courts have had to weigh in on donations to political campaigns and on imposition of religious beliefs has has the law is allies it stands able to deal with issues of corporations and their power these are my audience audience questions which is a cue that we're almost done here with the power of corporations or is there the need for the law to adjust to the modern reality of the way we all live our lives. I think the can adjust very well and it has you mentioned that he trusts what was considered in restraint of trade at the end of the nineteenth century. Entry is not necessarily the same as it is today so these laws were meant to govern society as it changes. Do I think that the law yes certainly the law and court decisions can deal with the problems of a large corporations one case that you may have thought of that it does empower corporations citizens united and campaign spending but Justice John Paul Stevens wrote wonderful of dissent in that case which I join which I hope will son someday be the accepted view of the controls that appropriately put on campaign spending speaking of your dissents you have been clearly very well-known for your powerful dissents and have become a cultural icon on beyond any other justice that I'm aware of in movies the notorious R. B. G. in opera I have have I can't help but the comic for a moment I have here a Ruth Bader Ginsburg bobble head. I might be wearing ruth. Bader GINSBURG socks how has rising to the status of cultural cultural icon affected your view of your role in society not just on the court the notorious R. B. G. was created by a second year student at New York University Law School. She got the idea when the court what decided the Shelby County case that declared invalid a key portion of the voting rights attack of one thousand nine hundred sixty five the act required states sometimes counties sometimes you municipalities that in the battled as had kept African Americans from voting those units could enact voting legislation unless it was pre cleared either with the Department of Justice Civil Rights Division or a three Judge District Court in the District of Columbia that pre clearance system was working very well he being lots of laws off the books laws that were designed to keep people people from African American Computer Communities Hispanic communities from access to the polls but the court said times of changes nineteen sixty five so some areas that had discriminated in the past us no longer discriminating therefore the the the list they know good lists from sixty five is outdated Congress will have to do it again. We'll think of the practicality of the position. What member of Congress is going to stand up and say my district is still discriminating so keep us on badness in fact they was away out. It was built into the legislation. It was a bailout. If you had had a clean record for X. number of years you could bail out from the coverage <unk> student recognizing that the Shelby County decision was going to revive of these efforts to keep African Americans from the polls. She was very angry and then she thought ought to herself. Anger is not a useful emotion doesn't get you any place. I want to do something positive ositive so she took the summary of my descent that I read from the bench and she put it on this blonde and she called it the notorious <unk>. BG AFTER THE FAMOUS RAPPER NOTORIOUS B I g she because she knew the two of US had one thing in common. We were both born and bred in Brooklyn Neil Anyway from there. It took a the stratosphere but I think it's mostly because people wanted something positive something hopeful and so that's the notorious b. with Liz born born and say sometimes can be a little overbearing when everyone wants to take my picture though I'm eighty six years old but if I were to say macy's in Pentagon city in the old days it was hard. God find a salesperson feel good. I'm glad glad at least that problem has been solved well. I would like to turn to some questions from the audience that have been submitted and one is has the current political climate affected your views on lifetime appointments again. It's it's a hypothetical question because articles three the judiciary article of the Constitution <unk> says the judges not just Supreme Court judges but all federal judges hold their office during gene good behavior essentially so I suppose I'm bias and prejudice on that subject having served twenty six is much lower than the the average tenure of Supreme Court justices and I think the US Supreme Court is the envy of high quotes all over the world that have have help us retirement ages some beginning at sixty sixty five seventy tops seventy five five so I think that again amending the Constitution to change it. I don't think there'd be a groundswell. What about the election of State Court judges. Do you think that that's a functioning well or problematic automatic. I think popular election is a very bad way to select judges judges campaigning for office saying if you elect me going to be tough on crime it's spectacle. I don't know any other country in the world where judges our elected one can understand the Arjun the people's distrust of the British judges but we're Long Oh past that time the direction is toward an appointment rather than election in New York it started with court of Appeals. The top court movement is slow but it is in the direction of a point in pointing rather than electing judges. I I was given information some years ago about the fantastic amount of money you must that must be gathered to get a seat on the Supreme Court of Texas millions of dollars. Remember I was one of the hosts of delegation from Russia visiting various states in one was Texas in the heard about how much it costs to win a seat on the highest quarter of that state. They were it just to me as well speaking of lifetime judicial ambitions. We have a question from eleven year old Reagan Agee Jackson who asks where you always interested in being a US Supreme Court. Justice was a childhood aspiration in the ancient days. When I went to law school nineteen fifty six to nineteen fifty-nine there were barely any women judges in those years of all the federal courts of appeals. Only one woman surely have stettler who sat on the Ninth Circuit Court of Appeals President in Carter made her the first ever secretary of education so then they were none but President Carter looked around he said I see these federal judges and they all look like me as a sale white they'll mail but that is how not how great United States looks so I am willing to appoint members of minority groups and women in numbers. Ladas wanted a time curiosity. President Carter appointed over twenty five women to District judgeships travel judgeships and eleven to court of Appeals and I was one of the lucky eleven then president Reagan comes along and he's not going to be outdone by President Carter. He's determined to point the first woman to the Supreme Court. He makes a nationwide search came up with wonderful choice in justice Saturday. Oh come no president has ever gone back to the way it was so deserve great credit for changing the complexion collection of the judiciary but they're law school graduate in Nineteen fifty-nine far from thinking about any judgeship when I want. It's a job in the law any job. There was no title seven. No anti discrimination laws people were upfront about wanting no lady lawyers. There were a few firms that were willing to risk taking a chance on a woman it was no firm in the entire city of New York would take a chance on a mother and and my daughter was four years old when I graduated from law school women were in in those days less than three percent of the lawyers in the country so it would have been unrealistic expectation to think that I could would someday be a judge limited. My generation wanted eight job in the law justice. Okay is typical. She was very high in her class at Stanford Law School no-one and offered her a job as a lawyer. She was asked if she could type. Maybe she could be legal secretary. So what did she do. She went to a county attorney and said I will work for you without pay four months and then if you think I'm worth it you can put me on the payroll. When of course she was far and away the best young ruler in the in the office so she was put on the payroll. It was getting that first job that was powerfully hard. Once the woman got it she performed at least as well as as a man and so the second job it was not the same hurdle but getting you foot in the door that was that was the challenge. I never thought about becoming a judge until Carter took office and made his goal to appoint women in numbers then began to that might be nice life aw another question from the audience related is DC similarities in the fight for gender equity and ongoing battles for social equity in other dimensions. Are there issues that are specific pick for women of color. How does the fight for racial justice compare to what you've seen over the years discrimination enforcement spreads beyond the particular category. The best example of that is the case cold either Phillips Against Marietta Company. NFL was a woman with Preschool Children Martin Marietta Hannah Policy. We hire no women with preschool school children. The company's defense how can we discriminate against women women are eighty percent of our workforce but this is certain kinds of <unk> women who can't work that the mother of preschool children that case was taken to the US Supreme Court by the N. double. ACP INCLINED IDA Phillips was white woman but the N. double ACP. We had the foresight to see how important eliminating that barrier was for women of color so in the adage nation field I think decisions on gender-based discrimination and can be useful and race discrimination cases and certainly the race discrimination cases were very important in opening up opportunities for women so perhaps a good question to wrap up with is do you have any words of encouragement for those fighting for democracy and equal rights around the world who may be disheartened by setbacks and the personal risks and challenges they face hot and by the number of people who would think as they do. It's very hard to do anything as a loner owner but if you get together with like minded people you can be a force for change and if you look at things over the long haul we have come a long way from how it once was. There was a woman who was in the Providence Supreme Court case on loving against Virginia. This was a challenge to Virginia's miscegenation law loving said in my long life I have seen changes. I I feel that way too and although we haven't reached Nirvana we have come a considerable distance. It's from the days when women couldn't do that with this simply because they will female and a follow up question from the audience is what keeps you optimistic. Is that how you view the future for our country and around the world keeps me a domestic a- as I said is changes I have seen mean even think of race discrimination World War Two. We were fighting a war against the most odious race discrimination and yet our own foods until the very end of the war will rigidly separated by race. I think World World War Two is what hastened the decision in Brown v Board of vacation so I have seen enormous changes in that what makes me a domestic mystic for the future and as you look back on the cases you have opined on. What is your favorite essent. You have written. It's like asking which of my four grandchildren will one case that gave me enormous. Satisfaction was Lilly ledbetter better skis so lilly ledbetter worked at goodyear tire pledge. She was an area manager. She was the first woman to be hired at the Gadsden Alabama plan in to be an area manager and one day someone puts a slip of paper in a mailbox with a series of numbers. Lizzy recognized united immediately what they were. They were the pay of all the other area managers and the young man she had just trained with the job was earning one and she was so she said I've had it. I'm going to sue and she sued dude. Under title. Seven are <unk> discrimination in Employment Law. She won a sizable jury verdict our case come to the US US Supreme Court decides to late this law title seven says you must complain within a hundred eighty days of the discriminatory incident and you're complaining years in years after you the first first the victim of agenda race discrimination so you use ooh too late might theory in dissent. Was it every paycheck she receive. We've renewed the discrimination so she had a hundred eighty days. When I tried to explain is the first woman in a job that has been up to then held only by men does not want to be seen as a troublemaker. She doesn't want to rock the boat so even if she suspects that she's being paid less. She doesn listen complaint. Her employer didn't give out pay figures so maybe she didn't know but suppose she had sued early on defense. No doubt would have been lily. Just it doesn't do the job as well as the men been here at the year. She gets good performance ratings so that defense is no along available. She has a winnable case but the court said she sued too late so the tag line descent in the lead his case was the ball is now in Congress his court how to correct the error into which my colleagues fallen and they were a coalition people on both sides of the hull overwhelming vote to pass the so-called. Lilly ledbetter ledbetter fair pay act which just adopts the paycheck rule. You have a hundred eighty days from the ladies paycheck. It was the first piece Lisa legislation that President Obama signed when he became praising the wall. It has been an honor and an education to be able to sit here with with you and I would like to ask the audience to thank the justice for sharing this time with us today. <hes> a big brains is a production of the Chicago podcast network. If you like what you heard please give us a review and a rating our show is hosted by Paul Rand and produced by me Mad Hoda. Thanks for listening <music>.