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Macmillan Childrens Publishing Group

Conversations with RBG

Ruth Bader Ginsburg on Life, Love, Liberty, and Law

Jeffrey Rosen

Henry Holt and Co.

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Introduction


One of the luckiest relationships of my life began with a chance encounter in an elevator. I first met Ruth Bader Ginsburg in 1991, when I was a young law clerk on the U.S. Court of Appeals for the District of Columbia Circuit. She was a judge on the same court, and I ran into her as she was on her way back from a workout class called “Jazzercize.” She was a formidable presence, and as we rode the elevator, she maintained the sphinxlike silence that those who don’t know her can mistake for remoteness.

To break the ice, and unable to think of anything else to say, I asked her which operas she had seen recently. I don’t think I knew she was an opera fan, but it seemed like a safe topic. We bonded immediately over our mutual love of opera and began a conversation about music that has continued ever since.

A year later, I was hired to be the legal affairs editor of the New Republic. This was another lucky break: at the age of twenty-eight, I had fallen into my dream job, writing about the law and the Supreme Court for a Washington magazine whose legal writers had included constitutional legends such as Learned Hand, Felix Frankfurter, and Alexander Bickel. Ginsburg and I began corresponding about my first New Republic articles and about the latest operas she had seen. When I sent her a piece after the 1992 presidential election arguing that Justice Antonin Scalia had become the “Leader of the Opposition” to an incoming Democratic president and Congress, she replied diplomatically, “Interesting article about my friend, the Justice.” A few weeks later, on January 21, 1993, in response to an article about a lackluster performance of Otello at the Washington National Opera, she wrote:

Hope you and a friend are free to attend the Wednesday, February 17 Turandot rehearsal. No forecast about the performance, but seats are up front on the aisle … The other opera this fall was the Tsar’s Bride. I wish you had attended that one instead of Otello. It might have prompted kinder thoughts about the Washington opera.

After I attended the Turandot rehearsal and thanked her for the tickets, she saw the opening performance and shared her thoughts in a letter dated February 25: “Turandot was grand opera. The chorus, especially in the first act, was spectacular in the performance I attended last night. Diva Eva sang in a very full voice and the Calaf did a better job than I expected with “Nessun Dorma.” Glad you had a chance to see the local company in brighter light and more comfortable seats.”

In the same letter, she also responded to an article I’d sent praising Justice David H. Souter but criticizing the “cult of Harlan” that had developed around the justice he had invoked as his hero, Justice John Marshall Harlan II, a moderate conservative justice from the Warren era whom both liberals and conservatives on the Court were embracing as a model of judicial restraint.

Enjoyed your comment on Justice Souter, but think you give Justice Harlan less credit than he merits. Gerry Gunther, my dear teacher and friend, has the highest regard for Harlan, because he almost always gave us a full accounting for his position, without guise or fanfare. A typical example is his concurring opinion in Welsh v. United States, which proved a great aid to me in my equal rights advocacy days.

Ginsburg’s citation of the Welsh case, from 1970, showed her strategic vision as an advocate as well as her respect for Harlan’s transparency as a judge. In that opinion, Harlan had held that the remedy for a constitutional violation is either extension or invalidation: in other words, if a court concludes that a law violates the Constitution by discriminating in favor of a particular group, it can either invalidate the discriminatory law in question or extend its benefits to the excluded class. Ginsburg invoked Harlan’s opinion in Welsh in a 1979 law review article called “Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation,” where she explained that the Welsh opinion had inspired her as an advocate to ask the Supreme Court to extend Social Security and public assistance benefits to both men and women in cases where one or the other gender had been excluded because of discriminatory stereotypes.1 The Welsh case also informed her strategy in the first gender equality case she won, Moritz v. Commissioner of Internal Revenue, now immortalized in the 2018 movie On the Basis of Sex. In Moritz, she successfully persuaded a federal appellate court to extend a tax benefit that had previously been available only to single women who cared for their dependent parents to single men in the same situation.

Emboldened by this friendly correspondence, I sent Judge Ginsburg flowers for her sixtieth birthday on March 15 and she responded three days later with a handwritten card: “The flowers now brighten the first sitting of my 60s and will help me think of spring this weekend.” She added that she had just seen a dress rehearsal for Janacek’s Cunning Little Vixen: “Three puntas to me for not asking you to join my chambers team for the Vixen Look-In Washington Opera did March 10 at noon. With appreciation, RBG.”

On March 20, Justice Byron R. White retired from the Supreme Court. Ginsburg was one of several candidates being considered to replace him, but her nomination was opposed by some women’s groups who viewed her as insufficiently liberal because she had criticized the legal reasoning in the Court’s landmark abortion rights decision, Roe v. Wade.

In late April I wrote a piece for the New Republic called “The List,” ranking the seven leading candidates in ascending order and concluding with Ginsburg. “Of all the candidates” on President Bill Clinton’s short list, I wrote, “Ginsburg is the most respected both by liberals and conservatives.

Her scrupulous position on Roe represents Clinton’s best opportunity to cut the Gordian knot of the litmus test; and she is the candidate most likely to win over the swing justices in memos and at conference. The only concern about Ginsburg is that she might become too friendly with the mushy middle. But although she has been willing to compromise on minor details, her core positions—on broad access to the courts, freedom of religion and speech and gender equality—are models of principled liberalism. Her nomination would be one of the most acclaimed since Felix Frankfurter, who turned Ginsburg down for a clerkship in 1960 on the grounds that he wasn’t ready for a woman. Now, we are.2

A few weeks earlier, although I didn’t know it at the time, Marty Ginsburg, the judge’s husband, had begun a quiet campaign to convince Senator Daniel Patrick Moynihan of New York to champion her nomination. (Moynihan, initially skeptical, came to relish the chance to take on his colleague Senator Edward Kennedy of Massachusetts, who was supporting the candidacy of a hometown federal appeals court judge, Stephen G. Breyer, who sat in Boston.) “I surely saw your editorials and had them in mind when I first spoke to the President,” Moynihan wrote to me on June 21, 1993. “On the other hand, there appears no question that by the beginning of the week of June 8th, the President had narrowed the choices down to three candidates: Judge Breyer, Judge [Gilbert] Merritt, and Secretary [of the Interior Bruce] Babbitt. Then, of a sudden, Judge Ginsburg reappeared.”

Moynihan later wrote an unpublished letter faxed to the New Republic about his role in what came next.

On May 12, 1993, I was flying to New York with the President along with [his aides] Harold Ickes and David Wilhelm. Two-thirds of the way up, he puts aside his speech, turns to me, and says, who should I nominate for the Supreme Court? I say, there is surely only one name, Ruth Bader Ginsburg. He says, the women are against her. I say, that is yet another reason. They are mad about her Madison lecture at NYU [where she had criticized the reasoning in Roe v. Wade]. But surely she was right. End subject.

One month later, on June 11, I call [White House communications director David] Gergen about something or another and pretty much as an afterthought, he asks who I would like to see on the Court. I relate my exchange with the President. In the meantime, I have received a copy of a letter to the President from Michael Sovern, then President of Columbia, in which he mentioned a talk that Dean Erwin Griswold gave at the Court on the occasion of the 50th anniversary of their moving into the new building. Dean Griswold mentioned various members of the Supreme Court bar active in this period. He particularly noted Thurgood Marshall in the area of racial equality and Ruth Bader Ginsburg in the area of gender equality. Gergen asks if I could send him that talk. It happened that my assistant, Eleanor Suntum, has a sister who worked at the Court and had worked in its library. Without my knowing, Eleanor called her sister and the text was faxed over within the hour.… Next day, shortly after midnight, as he had been watching a basketball game, the President calls to ask if I would be Ruth Bader Ginsburg’s sponsor.3

On June 14, 1993, Bill Clinton nominated Ruth Bader Ginsburg to be an associate justice of the Supreme Court. Judge Ginsburg generously credited my New Republic article for helping bring her over the finish line. “You planted the idea,” Ginsburg wrote to me on June 18. “I’ll try hard to develop it.” In fact, the piece was a serendipity, a consequence of my being at the right place at the right time, and joining a chorus of unsolicited testimonials to Ginsburg supplied by many friends and admirers who were fortunate enough to have gotten to know her.

For the next twenty-five years, my correspondence with Justice Ginsburg was warm but intermittent. She would sometimes write when she agreed or disagreed with an article I had written, or to issue an invitation to an especially interesting opera. (At this point, we had a running joke that any performance by the Washington Opera that she loved “may not measure up to your high standards.”)

On September 24, 1993, for example, a week and a half before her first sitting on the Supreme Court, she sent an invitation to a Washington Opera performance of Anna Bolena, adding:

If I knew his work better, I would go as far as Samuel Barber with you. Chambers are in pretty good shape now, but wait a few weeks more. By the end of November, the new carpet should be down, the rooms repainted, and the works on loan from local museums, in place.

For your lighter reading, I enclose a page from a less well-known magazine, The Brearley School Summer Bulletin 1993.

The publication had reproduced a page from her daughter, Jane’s, high school yearbook from many years earlier, declaring Jane’s “ambition: to see her mother appointed to the Supreme Court” and “will probably end up: appointing her mother to the Supreme Court.”

The following year, Justice Harry Blackmun resigned from the Court, and President Clinton nominated Stephen Breyer to replace him. On July 22, Ginsburg wrote to me “as a home subscriber of late (at least the spouse of one)” with thoughts about two of my recent New Republic pieces: one about Breyer and one about a new biography of Learned Hand, written by her law school mentor Gerald Gunther. “Gerry was my teacher at Columbia and has been a friend ever since. Steve will be both good and true,” she wrote, continuing:

Hand used words so well, I am not distracted by his less impressive qualities, including his unwillingness to consider me (or any other female) for a clerkship. During my 1959 to 1961 S.D.N.Y. days, when I finished work early enough, I occupied the back seat on evenings my judge, Judge Palmieri, drove the great man home. I loved Hand’s recitation and songs, especially his Gilbert and Sullivan repertoire. Gerry’s book is all I hoped it would be, yes, altogether wonderful.

My Opera news. We attended a performance of Don Giovanni at Glyndebourne July 17. The place is lovely, the orchestra and singers, most excellent. Only the production (sick modern) fell short.

Later in her letter, she noted two recently decided Supreme Court cases that had particular resonance for her. The first was Ibanez v. Florida Department of Business and Professional Regulation, where Ginsburg, writing in part for a unanimous Court, held that the state of Florida had violated the First Amendment rights of Silvia Safille Ibanez, a lawyer and certified public accountant who truthfully advertised herself as a CPA despite the fact that she was working at a firm unlicensed by a Dickensian bureaucracy known as the Florida Board of Accountancy. Ginsburg was especially taken by Ibanez herself, who successfully argued her own Supreme Court case, taking time off from her job as an accounting instructor at the University of Central Florida. Ginsburg may also have been drawn to the fact that Ibanez was an accomplished singer who had once sung at the Vatican and in the Camerata chorus.4 Her attention to these details about the woman’s life, I would soon learn, was characteristic of Ginsburg’s approach to cases, focusing always on the real-world challenges faced by individual men and women trying to define their life paths.

The second recent case, Ratzlaf v. United States, showed Ginsburg’s civil libertarian sensibilities as well as her attention to how the law actually operates in real people’s lives. Waldemar Ratzlaf, who had run up $160,000 in gambling debts, was charged with violating federal reporting laws when he tried to pay off $100,000 in cash. He claimed that he didn’t know that the law required him to report to the Treasury all transactions over $10,000 and that he should not be held liable for his failure to report. Writing for a five-to-four majority, Ginsburg agreed, holding that to establish that Ratzlaf “willingly violated” the reporting laws, the government had to prove that he knew his conduct was unlawful, along with the specific intent to break the law. Writing for the four dissenters, Justice Blackmun held that ignorance of the law is no defense. Judge Pierre Leval, a senior judge on the U.S. Court of Appeals for the Second Circuit, had recently written to Ginsburg to praise the decision, saying that he had always instructed juries that the word willfully means “with a bad purpose to disobey or disregard the law.” The previous year, he noted, he had a case involving two sisters, Colombian nationals who worked as house cleaners and lived in poverty. For several months, they had made deposits for their brother-in-law totaling $120,000. The sisters testified that they had no idea that their conduct was illegal. Leval agreed that they had no illegal purpose, and the two women were acquitted. Like Ginsburg, Leval focused on the practical effects of a constitutional ruling on the lives of actual people struggling to make ends meet.

In 1997, the New York Times Magazine asked me to write a profile of Justice Ginsburg as “The New Face of Liberalism” on the Supreme Court. When I wrote to ask her for an interview, she coyly demurred. “Like Scarlett,” she wrote, “I’ll think about it tomorrow.” She then sent a handwritten note: “Dear Jeff, Re NYT—please don’t. See items in folder Packet. Just say no now and I’ll give you an exclusive interview in 2010. Thanks, RBG.” The articles in the accompanying blue folder included letters to the journalist Joan Biskupic and the law professor Hunter Clark refusing requests for extended interviews on the grounds that, as Ginsburg put it to Clark in 1995, “I think it too soon … to take me up as a fit subject for a biography. I am about to begin only the third year in this wonderful job, and anticipate that much of the work of any significance from my pen is yet to come … The year 2003 might be right to consider embarking on an account of my life. There is also the problem of overload … I must be careful to conserve all the hours I need for the Court’s heavy work, also for the sleep essential to keep me going.”

I persisted with the New York Times article nevertheless, and Ginsburg offered a unique solution to the challenge of granting me the access necessary to create an opening scene for the piece without granting me an interview. She invited me to her chambers and allowed me to look around, for as long as I liked. On the appointed day, after greeting me briefly, Ginsburg simply disappeared. Here is my account of the unusual experience that resulted.

Finding myself alone, I perused her bookshelves with some embarrassment. There were many books about civil procedure; but there were also a surprising number of popular books about contemporary feminism, including Deborah Tannen’s Talking from 9 to 5 and Anita Hill and Emma Jordan’s Race, Gender and Power in America. There was a shrine to Puccini, with Art Nouveau posters from the early 20th century. Soon Justice Ginsburg’s secretary walked in. The Justice had telephoned from the car, she said, and wanted to call my attention to one photograph in particular. It shows her son-in-law with her infant grandson. That, the Justice wanted me to know, was her dream for the future.

At the time, I took the comment to be a platitude about the joys of grandchildren; but later I realized that Justice Ginsburg may have been saying something more subtle about the transformation of sex roles. Soon after she joined the Court, I recalled, she had introduced herself, as new Justices traditionally do, by granting an interview to The Docket Sheet, a newsletter for Court employees. Toni House, the Court’s public-information officer, asked her why she had agreed to a flexible schedule for one of her law clerks, David Post. Ginsburg replied that when Post applied for a clerkship, he was caring for his two small children during the day, so that his wife could sustain a demanding job as an economist. “I thought, ‘This is my dream of the way the world should be,’” Ginsburg enthused. “When fathers take equal responsibility for the care of their children, that’s when women will be truly liberated.”5

The New York Times Magazine profile was notable for two lapses. It began by describing a recent conversation with Justice Ginsburg at the Washington Opera during the intermission of a production of Mozart’s Così fan tutte. The opera is about two men who make a bet that their girlfriends will be faithful. They disguise themselves and discover that the women aren’t faithful after all. Trying to add a feminist twist, the director had suggested that the women overhear the bet and simply pretend to be unfaithful. I suggested to Justice Ginsburg that this wasn’t consistent with the sexual double standards of the eighteenth century, reflected in one traditional translation of the title: “Never Trust a Woman.” Ginsburg responded that the Italian title was in the third-person plural. “They Are All Like That” would be a more accurate translation, she suggested. Therefore, there was no reason to suppose that Mozart and his librettist, Lorenzo Da Ponte, thought women any more or less trustworthy than men.

Although an admirable attempt to unite Ginsburg’s love of Mozart with her commitment to gender equality, the anecdote turned out to be not quite right. After the article was published, Ginsburg sent me one of the copious letters she had received from music lovers across the country noting that tutte in Italian is feminine, as opposed to the masculine tutti. As a Harvard musicologist wrote to Ginsburg, “unlike English, Italian has gendered endings in the third person plural … so an even more accurate translation would be: ‘Women all behave that way.’” With good humor, she called the letter the “best of my Italian collection.”

The responsibility for the second lapse in the Times piece was entirely mine. The nationalist conservative commentator Pat Buchanan had attacked Ginsburg as a judicial activist during the 1996 presidential campaign, and on March 4 of that year, Ginsburg sent me the same response she had sent to a law professor and former colleague: “Appreciating how ‘conservative’ I am, you must be amused by Pat Buchanan’s placement of me high on his ‘hit’ list. I know I owe it all to the last name Ginsburg. Still, I am honored to be in such good company.”

In the article, I argued that Buchanan had it backward: judged by the small number of federal laws she had voted to strike down, Ginsburg was the most restrained judge on the Court. My lack of imagination in the piece was in predicting that Ginsburg would continue to define herself as a minimalist justice, a judicial priest rather than a judicial prophet: “The same qualities that make it very unlikely that Ginsburg will ever be a visionary leader as an Associate Justice—her minimalism, her jurisprudential as well as personal restraint and her emphasis on avoiding constitutional conflicts rather than engaging them—might make her an effective Chief Justice for a divided Court.”

My prediction proved to be shortsighted. It wasn’t Clinton who had the chance to appoint the next chief justice, but George W. Bush, as a result of Bush v. Gore, a decision that Ginsburg deplored. After Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor were replaced by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., the Court moved to the right; and when Justice John Paul Stevens retired in 2010, Ginsburg became the senior liberal associate justice. In this new role, she would transform herself into the “Notorious RBG.” And like her friend Justice Scalia, she became the visionary leader of the opposition.

When Justice Ginsburg was nominated to the Supreme Court in 1993, she was viewed as a judge’s judge, a judicial minimalist, praised by conservatives (and questioned by some liberals) for her restrained approach to the judicial function. Over the next twenty-six years she has become one of the most inspiring American icons of our time and is now recognized as one of the most influential figures for constitutional change in American history. I had the chance to observe the transformation, and to ask her about it, in a series of public interviews and conversations we shared in my role as a legal journalist, a law professor, and, most recently, head of the National Constitution Center, in Philadelphia. Many of these interviews took place before audiences. In the conversations that follow, Ginsburg is always entirely herself—candid, composed, focused, listening intently, and astonishing in her recall of facts, legal arguments, cases, and the details of the human stories behind them. Above all, she is always deeply wise and thinks carefully before she speaks. (All her friends and law clerks have learned to sit serenely during the long pauses between a question and an answer because it’s in the pauses that she is collecting her thoughts.) She demurs at the suggestion that she has changed during her time as a justice, insisting instead that the Court has become more conservative and that her role on the Court changed, too, after she became the senior liberal associate justice, responsible for assigning some majority opinions and many dissents. Nevertheless, she progressed from what she called the “flaming feminist” and brilliant strategist of the 1970s, as she transformed our constitutional understanding of gender equality, to the restrained judicial minimalist of the 1980s and ’90s, determined to allow social change generally to be driven by legislatures and by evolution in public opinion rather than by courts. Most recently, in the past decade, she has combined the strategic vision and crusading passion for liberty and equality of her advocacy days with a principled determination to defend the Court’s limited but crucial role in checking the choices of the people’s representatives when they clash with the Constitution.

The transcripts of the conversations that follow have been condensed and rearranged so that they are organized by theme, and edited by Justice Ginsburg for clarity and precision. But every one of the justice’s inspiring words is entirely her own.


Copyright © 2019 by Jeffrey Rosen

Afterword copyright © 2020 by Jeffrey Rosen