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What It Takes: Ruth Bader Ginsburg
00:00:00 ALICE WINKLER: Long before Ruth Bader Ginsburg was a Supreme Court justice, she appeared before the Court as a nervous lawyer.
00:00:07 RUTH BADER GINSBURG: Well, nervous is an understatement. But then I had this moment when I looked up at the bench and thought to myself, "These are the most important judges in the United States, and I have a captive audience. They have no place to go."
00:00:24 ALICE WINKLER: Exactly two decades later, Ruth Bader Ginsburg became a member of that esteemed captive audience, the second woman in history to serve on the Supreme Court. You’ll hear the full version of that story later in this episode, a whole episode devoted to the life lessons of Justice Ruth Bader Ginsburg. I’m Alice Winkler, and this is What It Takes from the Academy of Achievement.
00:00:54 OPRAH WINFREY: "Hattie Mae, this child is gifted," and I heard that enough that I started to believe it.
00:00:59 ROGER BANNISTER: If you have the opportunity, not a perfect opportunity, and you don't take it, you may never have another chance.
00:01:05 LAURYN HILL: It all was so clear. It was just, like, the picture started to form itself.
00:01:10 DESMOND TUTU: There was no way in which a lie could prevail over the truth, darkness over light, death over life.
00:01:18 CAROL BURNETT (quoting CARRIE HAMILTON): “Every day I wake up and decide, today I'm going to love my life. Decide.”
00:01:25 JOHNNY CASH: My advice is, if they're going to break your leg once when you go in that place, stay out of there.
00:01:30 JAMES MICHENER: And then along come these differential experiences that you don't look for, you don't plan for, but boy, you’d better not miss them.
00:01:41 ALICE WINKLER: Ruth Bader Ginsburg has led an illustrious life, and she’s an inspiration to lots of people, women in particular. Some are even a little obsessed with her, wearing T-shirts with her picture, affectionately referring to her as “Notorious RBG.” So who did she look up to growing up? Well, that’s where Nina Totenberg began her conversation for the Academy of Achievement.
00:02:06 The NPR senior legal correspondent sat down with the associate justice at the Supreme Court on July 13, 2016, for a long, intimate discussion about the law and life.
00:02:22 NINA TOTENBERG: Tell me about your mother because, after a long illness, she died the day before you were to graduate from high school, and I know that she was the model for your life in some ways.
00:02:36 RUTH BADER GINSBURG: My mother was a voracious reader, and one gift that she gave me was loving to read. My favorite memory was sitting on her lap, and she would read books to me. We had a daily — a weekly excursion to the public library, and she would leave me in the library in the children's section, have her hair done, and then pick me up when I had my three or four books for the week.
00:03:05 ALICE WINKLER: Those books often included Greek and Norse mythology, and of course, Nancy Drew, that exemplar of young female independence. The library, by the way, was in Flatbush, the section of Brooklyn where Ruth Bader grew up, and it was on the second floor over a Chinese restaurant, so Ginsburg says the smell of Chinese food has always brought up pleasant associations for her of those trips to the library with her mother.
00:03:37 NINA TOTENBERG: You spoke about her on the day that you were nominated to the Court in the Rose Garden. What do you think she’d make of you?
00:03:47 RUTH BADER GINSBURG: I think she would be surprised.
00:03:53 And no end pleased. My mother was born in an era when it was a disgrace for a married woman to work if her husband could support her. And so, my mother, who started working when she was 15 — she graduated high school at 15 — went immediately to work so she could help the family while the eldest son went off to Cornell. He was the only one in the family that had a college education.
00:04:26 So then she did not work once she married. I think she wished that she had been able to continue. Her big message to me was, "Whatever you do, be independent. Even if you meet Prince Charming, be able to fend for yourself."
00:04:51 ALICE WINKLER: She actually did meet Prince Charming not long after she left for college at Cornell, and we’ll get to that in a moment, but first to her academics. At Cornell, Ruth Bader had some wonderful professors, one a particularly famous novelist who influenced her writing for the rest of her life, Vladimir Nabokov.
00:05:12 RUTH BADER GINSBURG: Author of Lolita and many other things.
00:05:18 He was a man who was in love with the sound of words, and he would read aloud from the books that were assigned and showed us how a writer could paint pictures with words and how important having the right word in the right place would be.
00:05:40 He gave an example of why he liked writing in the English language. I’m not sure that his first language was Russian. It may have been French, but the example that he gave was: If you’re speaking French and you want to refer to a white horse, so you say “le cheval blanc,” first you see the horse, and “horse” stimulates “brown” in your mind.
00:06:12 Then you have to readjust it with “white,” but in English, “white” comes before “horse” so you see the white horse immediately, and that was the kind of thing that was important to Nabokov. He was a marvelous teacher, wonderfully amusing.
00:06:31 ALICE WINKLER: But here’s a curious thing Nina Totenberg noted during her interview. At Cornell, Ruth would often study in the bathrooms.
00:06:40 NINA TOTENBERG: Why did you do that?
00:06:41 RUTH BADER GINSBURG: Cornell in the early '50s was considered a great school for girls because there were four men to every woman. It was a strict quota system, and that meant the women were ever so much smarter than the boys. But it wasn’t the thing to do, to show how smart you were. It was much better that you gave the impression that you weren’t working at all, that you were a party girl.
00:07:11 So I did my studying in various bathrooms on the campus. Then when I went back to the dormitory, I didn’t have homework to do.
00:07:21 NINA TOTENBERG: So you didn’t look like a grunt.
00:07:24 RUTH BADER GINSBURG: Exactly.
00:07:25 NINA TOTENBERG: All right, so it’s at Cornell that you meet Marty Ginsburg, and at first you were just friends, but you realized pretty soon that he was different than the other boys. Because?
00:07:35 RUTH BADER GINSBURG: Yes. I many times said that Marty Ginsburg was the first boy I met who cared that I had a brain.
00:07:45 ALICE WINKLER: Marty was a year ahead of her in school, so once she’d graduated from Cornell — at the top of her class, mind you — they got married. Marty’s mother became like a second mother to her, one who dispensed sage advice.
00:08:01 RUTH BADER GINSBURG: We were married in Marty’s home, and his mother took me into the bedroom, her bedroom, and said, "Dear, I’d like to tell you the secret of a happy marriage." "Yes? What is the secret?" "It helps sometimes to be a little deaf."
00:08:28 And I found that advice — it stood me in very good stead not only in a wonderful marriage that lasted well over half a century but in every workplace I’ve served, dealing with my faculty colleagues when I was a law teacher, and even now with my colleagues on the Supreme Court.
00:08:55 When an unkind word is said, a thoughtless word, best to tune out.
00:09:02 ALICE WINKLER: Right after Ruth Bader and Marty Ginsburg got married, Marty was called up for active duty, and they moved to Fort Sill in Oklahoma. Next came Harvard Law School for both of them. It was 1956. If you’re already thinking, "Boy, that Bader Ginsburg was a pioneer," ponder this: when she started law school, she already had a 14-month-old daughter.
00:09:28 Bader Ginsburg was certainly the only mom at Harvard Law, but also one of just nine women in a class of 500 students, and no one exactly rolled out the red carpet for them.
00:09:40 RUTH BADER GINSBURG: The nine of us were greeted by the dean, Dean Erwin Griswold, at a dinner he held in his home. He invited the nine women, and each of us had a faculty escort. My escort was Herbert Wechsler, later my colleague at Columbia. He was a man who looked more like God than anyone I’d ever seen.
00:10:07 I was totally taken with him but intimidated because he was so brilliant. Anyway, we had a meal. It was not a memorable meal, and there was no wine because the dean was a teetotaler. And then he had the chairs in his living room arranged in a semicircle and asked each of us, in turn, to say what we were doing at the Harvard Law School, occupying a seat that could be held by a man.
00:10:49 And most of us were embarrassed by the question, but years later, when the dean became a friend, I realized what he was trying to do. The dean was not known for his sense of humor. Harvard didn't admit women until — 1950-51 was the first year the law school admitted women.
00:11:16 There were still doubting Thomases on the faculty, and the dean wanted to be armed with stories from the women themselves about what they would do with a law degree, so that’s why he asked the question. Of course, the women in my class didn’t exactly comprehend that at the time.
00:11:45 But one of them gave him a perfect answer. Mine was far from perfect, but this was Flora Schnall. She had a distinguished career as a lawyer. She said, "Dean Griswold, there are nine of us. Well, really Ruth Ginsburg doesn’t count for this purpose. So there are eight, and there are over 500 of them. What better place to find a man?"
00:12:16 And the dean, I think, was horrified by that answer, but —
00:12:23 She was the only one who treated it the way it should have been treated.
00:12:27 NINA TOTENBERG: With the proper disrespect.
00:12:28 RUTH BADER GINSBURG: Yes.
00:12:30 NINA TOTENBERG: Why did you want to become a lawyer?
00:12:32 RUTH BADER GINSBURG: Why did I? Oh, it was some time, I guess, around the end of my second year, maybe beginning of my third year at Cornell. I had a great professor for constitutional law, Professor Robert E. Cushman. The '50s were not a great time for the United States.
00:12:55 There was an enormous “Red Scare” in the country, stirred up by Senator Joe McCarthy, who saw a communist in every corner. Professor Cushman wanted me to understand that the United States was straying from its most basic values. That is, the right to think, speak and write freely without “Big Brother” government telling you what’s the right way to think or the right way to speak or write.
00:13:29 So I was working as Professor Cushman's research assistant, and he had me follow the news to see who were the latest people in the entertainment industry who were blacklisted, and then to read transcripts of hearings before the House Un-American Activities Committee or the Senate Internal Security Committee.
00:13:51 And from those transcripts I saw that there were lawyers standing up for these people, reminding our Congress that we have a First Amendment guaranteeing free speech, and we have a Fifth Amendment guarantee against self-incrimination. So I thought that that was a pretty good thing to do, that a lawyer could have a professional career, could have a paid job, and volunteer services in bad times to help make things a little better. That’s when I had the idea that I would like to be a lawyer.
00:14:32 ALICE WINKLER: At Harvard, Ruth Bader Ginsburg made law review, the first woman to have that honor, and given that she had a young daughter, it’s probably fair to say that she was juggling more than the other 500 members of her class. And then, Marty was diagnosed with testicular cancer. The treatment at the time was brutal. He had surgery, and then weeks and weeks of harsh radiation treatment.
00:14:59 NINA TOTENBERG: How did you get through this time? I mean you were doing everything. You were taking care of him. He was very sick. You were typing his papers. You were getting notes from his classes. You were taking care of Jane. How did the two of you get through this period?
00:15:15 RUTH BADER GINSBURG: We never thought about the possibility — or never talked about the possibility — that he might not survive. We were concentrating on getting him through the third year — and by the way, Marty went to classes for only two weeks, the last two weeks of the semester. In that semester, he got the highest grades that he ever got in law school because he had the best tutors.
00:15:41 And Harvard was known as a competitive place. My experience was the opposite. His classmates, my classmates, rallied around the two of us, and he got individual tutorials to help prepare him for the exams. How did I get through it? Well, I was able to get by with very little sleep. Because of the radiation, Marty couldn’t ingest anything until midnight, and so between midnight and two he had dinner, my bad hamburger usually, and then he would dictate to me his senior paper, and then he’d go back to sleep.
00:16:23 And it was about two o’clock when I’d take out the books and start reading what I needed to read to be prepared for classes the next day.
00:16:32 NINA TOTENBERG: This was the beginning of your cockamamie schedule that you keep now?
00:16:35 When you work all night and don’t get up until noon unless you’re on the bench?
00:16:41 RUTH BADER GINSBURG: Yes, except in those days I was much younger, so I could get up early in the morning in time to make my first class, which sometimes was eight o’clock.
00:16:53 ALICE WINKLER: Marty recovered, and he graduated on schedule, which was a year ahead of his wife. When he got a good job offer in New York, she transferred to Columbia for her final year of law school. When she graduated, the jobs weren’t so easy to come by — never mind that she was again at the top of her class, never mind that she had glowing recommendations from her professors, and never mind that she’d been on law review at Harvard and Columbia. She was Jewish, and she was a woman.
00:17:24 Two strikes. Firms weren’t inclined to hire either, and neither were most judges, though she did finally manage to get a clerkship with U.S. District Judge Edmund Palmieri. But Supreme Court Justice Felix Frankfurter just flat out told her recommenders that he wouldn’t consider a woman, and then there was the famous Judge Learned Hand.
00:17:49 RUTH BADER GINSBURG: Judge Learned Hand was a brilliant jurist, and I wanted to clerk for him more than anything, even more than for a Supreme Court justice. And my judge, Judge Edmund Palmieri, he lived around the corner from Judge Hand and would drive Judge Hand into work and back. And whenever I was finished early enough, I would join them on that ride. I’d sit in the back of the car, and this great man would say anything that came into his head.
00:18:24 He sang songs at the top of his lungs. He used words that I never heard. And I asked him, "Judge Hand, I don’t seem to inhibit your speech when you're in this car. Why won't you consider me as a law clerk?" And he said, "Young lady, I am not looking at you."
00:18:50 For a man of that time, of that age, you didn’t use bad language in front of a lady. In the back, it’s as though I wasn’t there.
00:19:05 ALICE WINKLER: Ruth Bader Ginsburg found academia a much more hospitable place, and that’s where she landed — at first, at Rutgers. Though even there, she felt she needed to hide her pregnancy.
00:19:17 RUTH BADER GINSBURG: Yes. That was a wonderful thing that happened because Marty was told after all that radiation that it would be impossible for us to have a second child. So that was very good news, but in any event, I was at that time — it was my second year at Rutgers. I had a year-to-year contract, and I was pretty sure that if I told them I was pregnant, I wouldn’t get a contract for the next year.
00:19:58 So I wore my mother-in-law’s clothes. It was just right. She was one size larger.
00:20:05 And I got through the spring semester. When I had the new contract in hand, I told my colleagues, when I came back in the fall, there would be one more in our family.
00:20:15 So they stopped thinking that I was gaining a lot of weight.
00:20:20 NINA TOTENBERG: And you got tenure.
00:20:21 RUTH BADER GINSBURG: Yes.
00:20:23 ALICE WINKLER: On an individual level, Ruth Bader Ginsburg is extraordinary for her determination to make it as a woman and as a mother in a man’s world. That alone would have made her a standout, but she also used her experiences and her insights, as well as her phenomenal legal talents, to try to root out sexism. We’re going to spend a bit of time now talking about some of the discrimination cases she took on as a young attorney, starting with the first big one. She and her husband worked on it together, and oddly enough, it was a tax case.
00:20:58 RUTH BADER GINSBURG: Marty came into the bedroom where I worked, and said, "Ruth, I think you should read this decision." And my response was, "Marty, you know that I don’t read tax cases." He said, "Read this one," and I did. It was the story of a man who was never married. He took care of his then 93-year-old mother.
00:21:28 And he took what the Internal Revenue Code allowed as a babysitter’s deduction, which you could take for the care of an elderly infirm relative of any age. So he took this $600 deduction, and he was audited by the IRS, and they said, "You can’t take that deduction." He said, "Oh, I’ve been told that there’s an elder care, just like there’s a baby care."
00:21:58 The people who qualified for the deduction were any woman or a widowed or divorced man. Charles E. Moritz was a never-married man. He took his case to the tax court pro se.
00:22:14 NINA TOTENBERG: Meaning for himself?
00:22:15 RUTH BADER GINSBURG: Yes. He represented himself and he filed a brief, which was a model. No lawyer would have done such a thing, but it was just right. He said, "If I had been a dutiful daughter, I would get this deduction. I’m a dutiful son. This makes no sense." And the tax court judge, in his opinion, said, "I glean that the taxpayer is making a Constitutional argument," but the next words were to the effect, "Everyone knows that the Internal Revenue Code is immune from Constitutional attack."
00:22:58 So as soon as I read that decision, I said, "Marty, let’s take it," and that’s how Charles E. Moritz became our client.
00:23:07 NINA TOTENBERG: Your late husband once said that this case became the mother brief for you because you had to figure out — you know, there were thousands of laws then, literally thousands in state and federal law that had preferences for men or women. And you had to figure out what you wanted to ask the courts to do, and the government said it would ruin everything — you know, it would ruin the whole code of every kind of law imaginable if you won.
00:23:38 When you were thinking this through, what were you thinking?
00:23:44 RUTH BADER GINSBURG: I call the Moritz brief the grandparent brief. First, I understood the likely reception to my argument that it’s gender-based discrimination — what was then called sex-based discrimination: “What are you talking about? Women have the best of all possible worlds.”
00:24:09 “Think of jury duty. Yes, we don’t put them on the jury rolls, but if they want to serve, they can go to the clerk’s office and sign up, and we will add them. So they don’t have to serve. Women are on a pedestal. They are sheltered. They are protected. And men have to go out into the large, cold world and earn a living.”
00:24:33 The laws, the statutes, both state and federal, reflected that difference. A good name for it is the separate spheres mentality. The sphere of earning bread, supporting the family, that was the man’s world. And the women’s world — women were to take care of the house and raise the children, that dichotomy.
00:25:01 And the laws were shaped to fit that. That’s why any woman could get the deduction in Charles E. Moritz’s case, because women, it was well known, could take care of incapacitated relatives no matter what the age. But men — in fact, that was one of the arguments the government made in Moritz, that he hadn’t proved that he was capable of taking care of his mother so that the babysitter was a substitute for himself.
00:25:32 Women would not have to prove that because everybody knows that women could take care of elderly parents. So what we needed to show was that the image of women being on a pedestal — there was something wrong with that picture, and that, in fact, as Justice Brennan put it years later, the pedestal all too often turned out to be a cage.
00:26:02 So it was to try to promote the understanding that these so-called protective laws more often than not ended up restricting what women could do, sparing men’s jobs from women’s competition — so how to say that in a polite way to get across the picture, that was a challenge.
00:26:28 ALICE WINKLER: She won and went on to co-found the ACLU Women’s Rights Project. She liked having men as her clients. She found it helpful in arguing before male judges that laws on the books had no business distinguishing men from women. One of the most famous of her cases during that era, the early '70s, involved a man named Stephen Wiesenfeld. It went to the Supreme Court.
00:26:56 RUTH BADER GINSBURG: Stephen Wiesenfeld’s case was even more compelling than Charles E. Moritz. Stephen Wiesenfeld’s wife died in childbirth. She had been a schoolteacher. She earned slightly more than he did. When she died, Stephen went to the Social Security office. He thought that if he worked part-time up to the ceiling that Social Security allowed you to earn — the Social Security benefits plus what he could earn on top of that — he could just about make it and take care of his child and not go to work full-time until the child was in school a full day.
00:27:39 So he went to the Social Security office and asked for what he was told were child-in-care benefits, and he was told, "We’re very sorry, Mr. Wiesenfeld. Those are mother's benefits. They’re not available to fathers." So he was the person who immediately felt the effect of the law, but where did that discrimination begin? It began with the woman as wage earner.
00:28:12 Women paid the same Social Security tax that men paid, but it didn’t net for their family the same protection — same tax but unequal protection. So we could say, "Stephen Wiesenfeld is feeling the effect of this discrimination, but it began with his wife, the wage earner, who was not treated as a full wage earner." She was a woman wage earner, and that meant she was secondary. She was earning pin money — no Social Security benefits for her family when she dies.
00:28:51 NINA TOTENBERG: So the first time you argued in the Supreme Court, I think you didn’t eat. Why?
00:28:56 RUTH BADER GINSBURG: Why didn’t I eat? Because I was afraid I wouldn’t hold down whatever I had. I was tremendously, terribly, terribly nervous. I had a great first sentence prepared in advance, well memorized, but I was — well, nervous is an understatement.
00:29:21 But then I had this moment when I looked up at the bench and thought to myself, "These are the most important judges in the United States, and I have a captive audience. They have no place to go. They have to listen to me," and so then I switched to my teacher mode, and I told them things that they hadn’t thought about, about how the pedestal often turns out to be a cage.
00:29:53 ALICE WINKLER: Ruth Bader Ginsburg argued six cases before the Supreme Court involving sex discrimination. She won five of them. She also wrote briefs in dozens more. So what was her overall strategy? Well, as she explained during this Academy of Achievement conversation with Nina Totenberg, when she started out, cases before the Court that invoked the Equal Protection Clause and were about discrimination based on race were given what was called level one scrutiny.
00:30:24 By the '70s, everyone knew that racial discrimination was wrong, but every other sort of discrimination was given a level two scrutiny, or what was called rational basis.
00:30:38 RUTH BADER GINSBURG: Some people said, "Rational basis — all you have to do to get a law accepted by the Supreme Court is pass the lunatic test."
00:30:48 If it isn’t lunatic then it’s okay. Then Congress has the authority to do that.
00:30:53 NINA TOTENBERG: So you wanted a new level for women.
00:30:55 RUTH BADER GINSBURG: So we needed to ratchet up that level, ratchet up the review standard for gender-based discrimination.
00:31:03 ALICE WINKLER: The ratcheting actually began with a case called Reed vs. Reed. Ginsburg wrote the brief on behalf of the plaintiff. This was in 1971. Ginsburg calls it the “turning point case,” and here’s what the New York Times headline read the day after the decision was handed down: "Court, for First Time, Overrules a State Law That Favors Men." But as Justice Ginsburg pointed out in this interview, the Court didn’t even mention in its decision that it was making a pretty earth-shattering move.
00:31:38 RUTH BADER GINSBURG: This was a law of the State of Idaho that said, “As between persons equally entitled to administer a decedent's estate, males must be preferred to females.” — As simple as that. And the rival contenders in that case were Sally Reed and Cecil Reed, and they had a teenage son. They were divorced. When the boy was what the law calls “of tender years,” when he was young, the mother had custody.
00:32:14 When the boy reached his teens, the father said, "Now he needs to be prepared for a man’s world, so I should be the custodian." Sally didn’t like that idea at all, but she objected in vain. Sadly, she turned out to be right. The boy, living with his father, became terribly depressed and one day took out one of his father’s many guns and committed suicide. So Sally wanted to be appointed administrator of his estate. She couldn’t.
00:32:48 Why? Males must be preferred to females. Why would we have such a law? Because in the ancient days, in the 19th century, before the Married Women’s Property Acts were passed, women, if they married, couldn’t sue and be sued. They couldn’t make contracts in their own name. They couldn’t hold property in their own name.
00:33:11 So if you had a choice between two people to be the administrator of the decedent’s estate, of course you’d pick the competent person, the one who can make contracts, the one who can hold property, the one who can sue and be sued. That's why there were such laws on the books.
00:33:29 NINA TOTENBERG: So at some point, you realized you’d won. You’d won, and you had — you achieved. The Court did impose a higher threshold of scrutiny for women. And at some point around that time, I guess, you decided that you wanted to be a judge. Why?
00:33:54 RUTH BADER GINSBURG: The question is often asked to me by the school groups that visit the Court: "Did you always want to be a Supreme Court justice?" Or more modestly: "Did you always want to be a judge?" And I laugh because, in the days that I went to law school, only one woman in the history of the United States had ever been a federal appeals court judge.
00:34:24 She was Florence Allen, Court of Appeals for the Sixth Circuit. She stepped down in 1959, the year I graduated from law school, and then there were none again. So if you were a realist, as a woman, you knew that chances for a federal judgeship were slim to none. I never thought about becoming a judge until Jimmy Carter became president.
00:34:54 And Jimmy Carter did something wonderful. He looked around at the federal judiciary, and he observed, "You know, they all look like me." They were all white men of a certain age. “But,” he added, "that’s not the way the great United States looks. I want my judges to reflect the greatness of the people of the United States in all their diversity. So I will appoint members of minority groups and women, not as one-at-a-time curiosities like Florence Allen, but in numbers."
00:35:37 So then, for the first time, I thought, “Yes, I would like to be a judge.” Now I had spent ten years litigating gender discrimination cases. I had been a teacher, law teacher, for 17 years. I thought it might be kind of nice to be part of the decision-making process, but before 1977, no woman who was a realist ever aspired to a federal judgeship.
00:36:10 And then what Carter did, he appointed, I think, over 25 women to federal trial courts, to the federal district court bench, and then 11 of us to the courts of appeals, and I was one of the lucky 11.
00:36:25 NINA TOTENBERG: So, you moved to Washington from New York. Is that when you had to learn to drive?
00:36:32 RUTH BADER GINSBURG: I learned to drive at Cornell. I practiced on Marty’s gray Chevrolet. I failed the driver’s test five times.
00:36:46 I had to get a second learner’s permit.
00:36:49 So Marty, having infinite patience when I was learning to drive, then when we were married, he would never allow me to drive if he was in the car, unless he was deathly ill, unless he had a gout attack.
00:37:07 NINA TOTENBERG: And I gather that Justice O’Connor didn’t think much of your driving, either.
00:37:10 RUTH BADER GINSBURG: Well, nobody did. I was a very bad driver.
00:37:15 But Marty always made me feel that I was better than I thought I was, except in that one department. He made me very self-conscious about my driving.
00:37:26 NINA TOTENBERG: So then comes the call telling you that President Clinton wants to interview you about the Supreme Court vacancy, and I think it was a Sunday morning, and I think you had, as I recall, a fashion fit.
00:37:39 RUTH BADER GINSBURG: A fashion? Oh. Oh, because I had just come in from — I was in Vermont for a wedding, and the White House Counsel, Bernie Nussbaum, said, "Well, come meet the president. Don’t worry that you’re in your travel clothes. He will be coming in off the golf course."
00:38:02 So when I came to the White House and the president walked in, he was not in his golf clothes. He was in his Sunday best. He had just come back from church, so I was kind of embarrassed by the way I looked.
00:38:18 NINA TOTENBERG: Didn’t seem to harm anything.
00:38:19 RUTH BADER GINSBURG: But it worked out just fine. Yes.
00:38:23 BILL CLINTON: If, as I believe, the measure of a person's values can best be measured by examining the life the person lives, then Judge Ginsburg's values are the very ones that represent the best in America. I am proud to nominate this path-breaking attorney, advocate, and judge to be the 107th Justice to the United States Supreme Court.
00:38:48 NINA TOTENBERG: So you joined Sandra Day O’Connor on the Supreme Court. You were the second woman. She was the first, and immediately — even though, you know, she was a Reagan appointee and you were a Clinton appointee — you had a bond right away.
00:39:03 RUTH BADER GINSBURG: Yes, she was almost like a big sister to me. Sandra Day O’Connor is a truly great woman. When I came on board, she told me just what I needed to know to be able to manage those first weeks. She didn’t douse me with a whole bunch of stuff that I couldn’t possibly retain.
00:39:35 At so many stages of my life, she gave me good counsel. When I had colorectal cancer — Sandra had had breast cancer. She had massive surgery. She was in court hearing argument nine days after her surgery. So her advice to me was, "Ruth, you’re having chemotherapy. Schedule it for Friday so then by Monday you’ll be over it. You’ll be over the bad effects." That’s how she was.
00:40:09 Anything that came her way, she would deal with it. She would just do it.
00:40:14 ALICE WINKLER: And Sandra Day O’Connor did a very generous thing for her new colleague. When the Supreme Court heard a case testing whether the Virginia Military Institute (VMI) could exclude women, Justice O’Connor was going to be assigned the decision to write. She had considerable seniority, so she was the logical choice, but she told the chief that Justice Ginsburg should write it instead.
00:40:38 RUTH BADER GINSBURG: Yes. The Virginia Military Institute is a fine school. It offers an incredible opportunity, but it limited that opportunity to men. There were women who were ready, willing, and able to go through that arduous training. What they wanted more than anything else was the kind of old boy network. The VMI alums are very loyal.
00:41:07 They try to help the graduates on their way, and I think only about 15% of VMI graduates end up with military careers. The rest are in business and commerce. So it was an important opportunity that was not open to women, and there was nothing comparable for them. I wanted to write the decision — and by the way, the name of the case is revealing. It was United States against Virginia.
00:41:35 It was the United States government that was suing the State of Virginia, saying, "State of Virginia, you can’t offer an educational opportunity to one sex only."
00:41:47 NINA TOTENBERG: Another one of your wonderful pals, not just on the Supreme Court, but before, on the Court of Appeals, was Justice Scalia, and he was the sole dissenter in that case, and you have said that he ultimately did you a favor in that case.
00:42:02 RUTH BADER GINSBURG: Yes, he came into my chambers with what he said was the penultimate draft of his dissent in the VMI case. He said he wasn’t quite ready to circulate it to the Court. It needed more polishing, but the term was getting on toward the end, and he wanted to give me as much time as he possibly could to answer his dissent.
00:42:28 I was about to go off to my circuit judicial conference. I took the opinion draft with me. I started reading it on the plane to Albany, and it was — even for Scalia, it was a real zinger. It was. And so I spent the whole weekend thinking about how I would, in a restrained and moderate way, add to these comments.
00:42:58 I mean he took me to task for everything. I had a footnote in which I referred to the Charlottesville campus of the University of Virginia. He said, "We must excuse this justice, who is probably more familiar with schools in New York, where they may have a campus here and a campus there. There is no Charlottesville campus. There is only the University of Virginia. Period."
00:43:31 NINA TOTENBERG: The two of you went at it, but you said your opinion was better?
00:43:33 RUTH BADER GINSBURG: Oh, of course, because the greatest thing for me was to have a Scalia dissent. He would point out all the soft spots, and that would give me an opportunity to improve the opinion to make it more persuasive than it was before I got this stimulating dissent.
00:43:53 ALICE WINKLER: Justice Antonin Scalia and Justice Ruth Bader Ginsburg almost always butted heads in matters of law, but their close friendship was legendary and odd to the outside world. It was even the subject of an opera.
00:44:07 MUSIC: SCALIA/GINSBURG ARIA
00:44:09 The Justices are blind!
How can they possibly spout this?
The Constitution says absolutely nothing about this!
You are searching in vain for a bright-line solution
To a problem that isn’t so easy to solve
00:44:31 ALICE WINKLER: But Ginsburg says Justice Antonin Scalia always made her laugh. A year before NPR’s Nina Totenberg conducted this interview for the Academy of Achievement, she moderated a lively sparring match between the two justices on stage for the Smithsonian, and Nina was kind enough to share a little of that audio with us.
00:44:52 ANTONIN SCALIA: You know, I've sat with four colleagues who believe the death penalty is unconstitutional. My goodness. The death penalty was the only penalty for a felony when the Eighth Amendment prohibiting cruel and unusual punishments was adopted. It was the definition of a felony. A felony was a crime punishable by death. Every state —
00:45:13 RUTH BADER GINSBURG: I would —
00:45:14 ANTONIN SCALIA: These justices thought, “Since I'm on the Supreme Court, it's up to me to decide this significant moral question because I went to Harvard Law School, maybe even Yale Law School."
00:45:24 RUTH BADER GINSBURG: It's —
00:45:24 ANTONIN SCALIA: I must know the answers to these questions.
00:45:27 RUTH BADER GINSBURG: I consider it an abstract question that I don't have to give the answer to. What I do know is you cannot have a death penalty that's administered with an even hand. That's the problem. Who gets the death penalty? It's a roulette wheel, and that's not a system of justice.
00:45:49 Now I don't think anybody would want to go back to the days where, if you stole a horse, off with your head.
00:45:55 ANTONIN SCALIA: This is the Roulette Wheel Amendment?
00:46:00 RUTH BADER GINSBURG: This — the question — and the Court has said you couldn't arbitrarily administer the death penalty. You couldn’t say, "Every fourth murderer will get the death penalty." You could not have that kind of arbitrary administration of justice.
00:46:19 ANTONIN SCALIA: Ruth, if you have a jury in criminal trials, you're going to have arbitrariness. It's the nature of a jury. One jury may be more sympathetic to the defendant than another, so you want to abolish trial by jury and have everything decided by judges who went to Harvard and Yale?
00:46:34 RUTH BADER GINSBURG: It's a —
00:46:35 ANTONIN SCALIA: Who will likely come out the same way?
00:46:37 RUTH BADER GINSBURG: When it's a question of life or death, you can't have that kind of disparity.
00:46:46 ANTONIN SCALIA: Well, the people thought you could, and I don't think it's our place to say that you can't.
00:46:50 RUTH BADER GINSBURG: But the people at one time thought that 20 lashes were okay, and we don't think that's okay.
00:46:56 ANTONIN SCALIA: And I think as far as the Constitution is concerned, 20 lashes are still okay.
00:47:02 But the more ridiculous you make the example, the less likely it is to occur because the people have changed. They have made the decision to change. It hasn't been imposed on them by a Supreme Court. Anyway —
00:47:15 ALICE WINKLER: Despite the legal chasm between Justice Ginsburg and Justice Scalia, they enjoyed each other’s company very much when the workday was over. They were both New Yorkers. They both loved opera. They’d once even ridden on an elephant together on a trip to India. Let’s go back now to Justice Ginsburg’s conversation with the Academy of Achievement to hear about the day the Court ruled that same-sex couples had the right to marry.
00:47:41 RUTH BADER GINSBURG: Justice Kennedy wrote the opinion for the Court. I joined him. Justice Scalia dissented vigorously. That's an understatement.
00:47:57 And yet we were all together that evening at this wonderful dinner that Catherine and Wayne Reynolds had. The head of NIH took out his guitar. Renée Fleming began to sing with him, and everybody joined in. So there were Justice Kennedy and Justice Scalia, and I was there too, all singing rather raucously, “The Times They Are A-Changin’.”
00:48:29 MUSIC: THE TIMES THEY ARE A-CHANGIN’
00:48:33 NINA TOTENBERG: I did want to bring one thing here, and I couldn't because it's on your door. And it is the item that I suspect people would say is the least likely for you to have had as a feature of your life, and that is your drum majorette baton.
00:48:49 RUTH BADER GINSBURG: Oh, yes. It’s a skill. It’s not so easy to learn to twirl. Well, I thought I wanted to be a twirler. The twirlers would go to all the games. We would wear our little sweaters and short skirts, and I’d be in the stands absolutely freezing.
00:49:09 NINA TOTENBERG: Were you any good at it?
00:49:11 RUTH BADER GINSBURG: I would say of the twirlers — there were about eight of us — I was about in the middle in ability. Not the best and not the worst.
00:49:20 NINA TOTENBERG: You know, people take a look at you — I don’t know if you’re even five feet. I think you are just about five feet, and you weigh —
00:49:29 RUTH BADER GINSBURG: And a little bit more.
00:49:31 NINA TOTENBERG: A little bit more.
00:49:32 And you must weigh, I think, less than a hundred pounds.
00:49:35 RUTH BADER GINSBURG: No.
00:49:36 NINA TOTENBERG: No? You’re over a hundred pounds?
00:49:37 RUTH BADER GINSBURG: Yes.
00:49:38 NINA TOTENBERG: Okay, but just barely.
00:49:40 RUTH BADER GINSBURG: A little.
00:49:42 NINA TOTENBERG: Okay.
00:49:43 But they think, you know, “A strong wind could blow her over.” But you’re pretty tough. You’ve had cancer not once but twice. You work out with a trainer. You do push-ups, real push-ups.
00:49:54 RUTH BADER GINSBURG: Yes.
00:49:55 NINA TOTENBERG: Not girl push-ups. How many push-ups?
00:49:58 RUTH BADER GINSBURG: I do ten, and then I breathe, and then I do ten more.
00:50:02 NINA TOTENBERG: That’s hard. I can't do a push-up.
00:50:05 RUTH BADER GINSBURG: I have a very good trainer.
00:50:10 ALICE WINKLER: And, of course, Justice Ginsburg showed just how tough she could be, how incredibly strong, following the death of her beloved husband, Marty Ginsburg. Their storybook marriage lasted over 50 years. Nina Totenberg ended her interview by returning to this very personal subject for Justice Ginsburg, and I want to close our episode the same way.
00:50:36 RUTH BADER GINSBURG: We were married for 56 years when he died. Yes.
00:50:40 NINA TOTENBERG: And he was a master chef, a master tax lawyer and law professor, and your biggest booster. You have said that from the very beginning he was not just in your corner, it was something more than that.
00:50:57 RUTH BADER GINSBURG: Marty was always, always my biggest booster. He was a remarkable man. He was so sure of his own ability that he never regarded me as any kind of threat.
00:51:20 On the contrary, I suppose he thought, "Well if I decided I wanted to spend my life with her, she must be pretty good.”
00:51:30 So he was, at every stage of my life, my strongest supporter.
00:51:38 NINA TOTENBERG: The day after he died, in 2010, you were on the bench. It was close to the end of the term, and you were announcing an important decision that you’d written. You didn’t have to be there. Somebody could have announced the decision for you.
00:51:54 RUTH BADER GINSBURG: Yes. The chief justice could have announced the decision, but I remembered my pancreatic cancer surgery. I was home and recuperating for about two weeks while the Court was not sitting, and then the Court went back to sit.
00:52:22 And I told Marty, "I can’t do this. I won’t be able to sit still for two hours listening to arguments." And he said, "Yes, you will." And it was because of the strength that he gave me that I showed up in court that morning, and miraculously I was able to sit still. So I thought, "What would Marty want me to do?" And that’s why I came to the Court and read the summary of my decision from the bench.
00:53:00 NINA TOTENBERG: He wrote you a note, I think about a few days, maybe a week, before he died, and I asked you to bring it because it’s a wonderful letter from a husband. He didn't want to try anymore. He was terribly ill. And I thought you might read it for us.
00:53:31 RUTH BADER GINSBURG: I found this letter in the drawer of the stand next to Marty’s bed in the hospital when we knew it was the end and I was taking him home so that he could die at home rather than in the hospital. I was just checking to see that we had everything he brought with him.
00:53:58 And on a yellow pad there was a letter to me, and it reads, "My dearest Ruth, you are the only person I have loved in my life, setting aside a bit parents and kids and their kids, and I have admired and loved you almost since the day we first met at Cornell some 56 years ago."
00:54:25 He was wrong about 56. It was nearly 60 years. We were married for 56 years. "What a treat it has been to watch you progress to the very top of the legal world. I will be in Johns Hopkins Medical Center until Friday, June 25, I believe, and between then and now I shall think hard on my remaining health and life and consider on balance, the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms."
00:55:17 "I hope you will support where I come out, but I understand you may not. I will not love you a drop less." And just signed “Marty.”
00:55:44 ALICE WINKLER: Justice Ruth Bader Ginsburg, speaking to the Academy of Achievement on July 13, 2016. I’m Alice Winkler, and this is What It Takes.
00:56:03 Thank-yous abound to the Catherine B. Reynolds Foundation for making What It Takes possible.
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