My Own Words

“We must never forget the horrors which our brethren were subjected to in Bergen-Belsen and other Nazi concentration camps. Then, two, we must try hard to understand that for righteous people hate and prejudice are neither good occupations nor fit companions. Rabbi Alfred Bettelheim once said: ‘Prejudice saves us a painful trouble, the trouble of thinking.’

We are part of a world whose unity has been almost completely shattered. No one can feel free from danger and destruction until the many torn threads of civilization are bound together again.”

This essay, published in the newsletter of a Jewish fellowship in New York City where she lived, is another example of 13-year-old Ginsburg’s literary ability. It also reveals thematic elements of her writing as an adult: She quotes a pertinent expert and speaks of achievable goals—the avoidance of hatred and prejudice—while describing the dire reality of a shattered world. Ironically, Ginsburg speaks of the Bergen-Belsen concentration camp, where a contemporary of hers, Anne Frank, another bright young Jewish woman and author, died a year earlier prior to the camp’s liberation.

“I went to Seville, Spain, on vacation with my family, where I have a home. We were invited to a large cocktail party and the room was full of males and females […] Don Mario in turn said, ‘Esta es mi mujer—‘This is my woman.’ I threw my chest out and said, ‘I am not your woman, I am a person! My name is Anita L’Oise Ramos Monasterio de Escudero!’ From the back of the room boomed the host’s eight-year-old grandmother: ‘¡Viva America!’ I had been converted through typing.”

These comments come from an address by Martin Ginsburg when charged with introducing his wife. He chose to read a letter written by his former secretary, who had typed many of Ruth Ginsburg’s documents as she strived to achieve gender equality. Anita’s spontaneous comment, when her husband marginalized her in his introduction, reveals Ginsburg’s ability to transform and empower women, even indirectly.

“My final draft was more persuasive thanks to Justice Scalia’s searing criticism. Indeed, whenever I wrote for the Court and received a Scalia dissent, the majority opinion ultimately released improved on my initial circulation. Justice Scalia honed in on the soft spots, and gave me just the stimulation I needed to strengthen the Court’s decision.”

Here, Ginsburg deals with one aspect of the unique relationship she shared with Justice Scalia, a jurist at the opposite end of the political spectrum. As she describes it in the text, the two—often in complete disagreement with one another—would share their written opinions, often arguing back and forth through multiple drafts, until each felt he or she had achieved the most cogent expression. This reflects the collegiality so important to the author that she frequently discusses it as a necessary quality for those sitting on the Supreme Court.

“As you may have noticed, we have sharp differences on certain issues […] But through it all, we remain collegial, and most of the time, we generally enjoy each other’s company. Ordinarily, our mutual respect is only momentarily touched by our sometimes strong disagreements on what the law is.

All of us appreciate that the institution we serve is far more important than the particular individuals who compose the Court’s bench and even any given time.”

In describing the regular activities of the members of the Supreme Court, Ginsburg stresses the notion of cordial collegiality as a necessary quality for those dealing with the most important legal decisions facing the nation. This is one of numerous occasions when the author emphasizes the fellowship, hospitality, and friendship shared by the justices. Her conviction about the necessity of this shared attitude reinforces her comments describing the court as an evolving institution that guides an ever-developing society.

“Ruth Bader Ginsburg came across the word vägmärken, which translates literally as ‘pathmarker’ or ‘waypaver.’ Many consider the justice herself to be an exemplary ‘waypaver’ and ‘pathmarker,’ blazing the gender equality trail and expanding opportunities for women and men, yet she is also known for giving credit to those who came before her, illuminating little known historical figures and spotlighting those who helped pave the way for her own opportunities and accomplishments.”

These are comments of Hartnett and Williams, the biographers who here describe one of the learnings Ginsburg gained while studying the Swedish judicial system. As they note, in the majority of her writings, Ginsburg repeatedly points to jurists, social activists, and prophetic voices who blazed the trail for her work. The author’s view is that she has taken the baton of equality and justice, handed to her by many waypavers, and advanced it so that future leaders may carry it forward.

“Jews in the United States, I mean to convey, today face few closed doors and do not fear letting the world know who we are. The question stated in various ways is indicative of the large advances made. What is the difference between a New York City garment district bookkeeper and a Supreme Court Justice? One generation my life bears witness, the difference between opportunities open to my mother, a bookkeeper, and those open to me.”

In these remarks, given in 2009 to the Spertus Institute of Jewish Studies, the author reflects on the heritage of Jewish justices on the Supreme Court. Meditating on the of the handful of Jewish forebears on the court, Ginsburg describes a heritage of distinction. She speaks here about the openness of the US, where she can openly acknowledge her Jewish identity, and the recent social changes that granted her the elevated position of Supreme Court justice, one generation removed from a working-class Brooklyn family.

“By the time of John Harlan’s appointment to the Supreme Court in 1877, boarding house days were long over, and the Supreme Court appointment meant a move to Washington, D.C., for all in the Justice’s immediate family. It also meant an unpaid job for the Justice’s wife.

Malvina Harlan wrote of the ‘at home’ Monday receptions Supreme Court wives were expected to hold. The callers came in numbers. Melvina reported she might receive as many as 200 to 300 visitors on an ‘at home’ Monday. These events were more fancy than plain.”

Ginsburg express appreciation not only for her legal predecessors and her Jewish heritage, but also for the trailblazing women who preceded her, setting a path when they were as yet unable to hold office, serve in any official position, or even vote. She marvels in particular at the life of Malvina Harlan, who wrote about how she inspired and strengthened her husband in his struggles as a Supreme Court justice. Ginsburg expresses the regret that more women who were part of the Supreme Court social circle did not share their remembrances over the centuries.

“Over the course of the decade, Professor Ginsburg would publish more than 25 legal articles chronicling and critiquing the unfolding law, constitutional and otherwise, on gender equality—law that she herself did so much to shape […] she would mastermind briefs submitted in twenty-four Supreme Court cases […] on six occasions, she appeared before the court to present oral argument. She lost just one case […] she, more than any other lawyer, shaped the legal arguments reflected in the Court’s opinion, earning her the honorific ‘the Thurgood Marshall of the women’s movement.’”

The biographers, here introducing the section describing Ginsburg’s legal career leading up to her nomination for the Supreme Court, reveal why they are able to offer only a small sampling of Ginsburg’s great volume of work. Prior to her elevation to the DC Circuit Court, Ginsburg achieved all the biographers describe in this passage. While the feminist movement of the 1970s stirred interest, controversy, and resistance in the public sphere, many of the movement’s significant elements actually played out in the courts on the highest level because of Ginsburg’s work. The authors point out that Ginsburg’s efforts for gender equality involved attacking laws that limited social ability for men as well.

“In the United States, in very recent years, appreciation of women’s place has reached the nascent state. Activated by feminists of both sexes, courts and legislatures are beginning to recognize the claim of women to full membership in the class people, entitled to due process guarantees of life and liberty and equal protection of the laws.”

Ginsburg penned these words in 1971 for a law review article. What she wrote here preceded all the legal actions she would take, the articles and briefs she would write, and the arguments she would make before the Supreme Court. Her comments are prescient in describing the women’s movement as just beginning. The equality of the sexes, which she focuses on here by describing women as fully belonging to the greater class of “people,” is the guiding principle of her work as a litigant.

“The text of the Fourteenth Amendment appalled the proponents of a sex equality guarantee. Their concerns centered on the abortive second section of the amendment, which placed in the Constitution for the first time the word male. […]

After close to a century’s effort, the suffrage amendment was ratified, according to female citizens the right to vote. The most vigorous proponents of that amendment saw it as the beginning, not as a terminal point.”

In her discussion of the necessity for an Equal Rights Amendment, Ginsburg places into historical perspective the women whose interest in the 14th Amendment concerned not only the end of slavery but ostensibly the creation of universal human equality. They felt dismay when this first expression of equality referred only to men. Ginsburg points out that while the movement for race-based equality only began after the adoption of the 14th Amendment, the struggle for gender equality was lengthy. The ratification of the 19th Amendment, securing women’s right, Ginsburg describes as merely a step in the journey, which she describes as incomplete.

“Our mission was to educate, along with the public, decisionmakers in the nation’s legislatures and courts. We tried to convey to them that something was wrong with their perception of the world. As justice Brennan wrote in a 1973 Supreme Court plurality opinion […] ‘Traditionally, [differential treatment on the basis of sex] was rationalized by an attitude of “romantic paternalism” which, in practical effect [often] put women, not on a pedestal, but in a cage.’ […] We sought to spark judges’ and lawmakers’ understanding that their own daughters and granddaughters could be disadvantaged by the way things were. We saw ourselves as teachers appearing before audiences that, on the realities underlying our cases, had not advanced much beyond third grade.”

Speaking in 2008 to law students, Ginsburg describes her understanding of the work she and colleagues were doing in the 1970s to enlighten legislators and jurists in their efforts to eliminate gender-based discrimination. She notes that a key challenge faced by those seeking gender equality involved helping authorities recognize long-held biases in customs and laws universally assumed to be benevolent toward women, while these practices and regulations in fact eliminated opportunity and freedom.

“In the years from 1961 to 1971, women’s employment outside the home had expanded rapidly. That expansion was attended by a feminist movement […] Changing patterns of marriage, access to safer methods of controlling birth, longer lifespans, and, in significant part, inflation—all contributed to a social dynamic that yielded this new reality in the 1970s, for the first time in the history of the United States, the average woman was experiencing more of her adult years in a household not dominated by childcare responsibilities.”

In this chapter on her fight against gender-based discrimination, Ginsburg talks about the way many societies around the world adapted to ensure equal rights for all citizens while, legally, the US lagged. She further describes how the social evolution, as described here, changed the social landscape, resulting in more freedom, opportunity, and creativity for women. At the same time, many legal proscriptions prevented women from taking advantage of these new potentials. This is one example the author uses to emphasize that the nation’s laws need to keep up with the growth of society.

“Supreme Court Justices are guardians of the great charter that has served as our nation’s fundamental instrument of government for over two hundred years. It is the oldest written constitution still in force in the world. But the Justices did not guard constitutional rights alone. Courts share that profound responsibility with Congress, the president, the states, and the people. Constant realization of a more perfect Union, the Constitution’s aspiration, requires the widest, broadest, deepest participation on matters of government and government policy.”

Ginsburg said this as a part of her opening remarks before the House Judiciary Committee as part of the process of confirming her as a Supreme Court justice. Her comments hearken back to her belief, first expressed as a 13-year-old editorial writer, that all citizens play a role in working to make a better society. Implicitly, her words acknowledge that the Union, and therefore the Constitution that guides it, are works in progress and that all branches of government and all citizens of the nation must play a role in building the “more perfect Union.”

“My approach, I believe, is neither liberal nor conservative. Rather it is rooted in the place of the judiciary, of judges, in our democratic society. The Constitution’s preamble speaks first of ‘We, the People,’ and then of their elected representatives. The judiciary is third in line and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group.”

As a law professor, Ginsburg specialized in governmental procedures, implying a clear understanding of the elements of the federal government, the intricacies of the role fulfilled by each branch of government, and how those arms of government stand interrelated and coequal. When Ginsburg here expresses to the listening senators the idea that the judicial branch is third in line so that it can avoid the “political fray,” she asserts that she will not be politically pressured. This affirmation of integrity confirms the consensus about her by those the biographers quote throughout.

“You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

A judge sworn to decide impartially can offer no forecast, no hence, but that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Going back to the failed confirmation of President Reagan’s Supreme Court nominee Robert Bork, senatorial confirmation hearings typically featured attempts by senators to lure nominees into foretelling how they would vote on controversial matters likely to come before the court. Ginsburg mentions many of these sensitive topics in her comments. In this portion of her statement to the senators, she flatly tells them that she will not discuss any potential topic, political inclination, or possible vote. To do so, she says, would violate the integrity of the judicial process.

“Contrast the security federal judges enjoy with the relative insecurity of state court judges who must stand for periodic elections. And 39 of the 50 states comprising the United States, judges, at least at some level in the hierarchy, face elections. One can understand the origins of elections for judicial office in the United States; The practice traces back to the distrust of the King’s judges in days when the thirteen original states were British colonies. But, at least in my judgment, elections are a dangerous way to choose or retain judges.”

Building upon her long-held belief in the independence of the judiciary, Ginsburg points out that many state courts do not afford judges the luxury of avoiding politics, rather forcing them to run in partisan elections to retain their positions. Elsewhere, she describes the how her colleague Justice Kagan faced criticism and ridicule from a US senator for requiring her students to take a course in international law. Ginsburg warns that such political intrusions diminish the ability of judges to vote their conscience without fear of reprisal.

“Although politically driven impeachment of federal judges is a remote prospect, yet another threat to judicial independence cannot be discounted so easily. In President Clinton’s second term, it bears reminding, political hazing of federal judicial nominees was unrelenting. […] For many Democrats, President Bush’s successive terms have been payback time, an opportunity to hold up or reject Bush nominees to the federal judiciary on ideological grounds.”

By emphasizing the danger of political intrusion into the judicial process, Ginsburg points out that President George W. Bush’s judicial appointments received criticism in an excessive fashion by Democratic senators in the same way that President Clinton’s judicial nominees did from the Republican senators. Thus, Ginsburg implies, no political party is immune from using its power to influence the judicial process, potentially interfering with the judiciary’s ability to remain objective.

“Although the word equal, or equality, in relation to individual rights does not even appear in the original U.S. Constitution or in the first ten amendments that compose the Bill of Rights, the equal dignity of individuals ideal is part of our constitutional legacy […] The founding fathers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. […] As historian Richard Morris has written, a prime portion of the history of the U.S. Constitution is the story of the extension […] of constitutional rights and protections to once excluded groups: to people who were once held in bondage, to men without property, to Native Americans, and to women.”

In this passage, Ginsburg first points out that the basis for the US judicial system is the idea that justice comes from the common humanity of society as opposed to a group of privileged royals, implying that the equality of ordinary people is a guiding principle of American jurisprudence. She then builds on her notion of the living constitution by pointing out, by citing well-known historian Richard Morris, that the nation expanded the constitution through amendments to include various groups of people who were not originally part of the accepted society. Using Morris’s words, she points out that, ironically, women make up the last of the formerly excluded groups now included in the constitution.

“The seven-to-two judgment in Roe v. Wade declared violative of the Due Process Clause of the Fourteenth Amendment a Texas criminal abortion statute that intolerably shackled a woman’s autonomy […] A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe […] might have served to reduce rather than to fuel controversy.

The Roe decision might have been less of a storm center had it both homed in more precisely on the women’s equality dimension of the issue and, correspondingly, attempted nothing more bold at the time than the mode of decisionmaking the court employed in the 1970 gender classification cases.”

In discussing the controversial Roe v. Wade judicial decision, Ginsburg expresses criticism not of the decision’s outcome but rather the manner of its adjudication. During the same period of time that the court addressed Roe v. Wade in 1973, Ginsburg worked to render all judgments involving women as a group as “suspect,” meaning potential violations of the Constitution. Here, she expresses the idea that the controversial aspect of Roe v. Wade would have been moot had it focused narrowly on the idea that women were not afforded equal treatment under the Constitution rather than a violation of a woman’s right to privacy.

“On a personal note, Brown and its forerunners, along with the movement for international human rights that ensued, powerfully influenced the woman’s right litigation in the USA in which I was engaged in the 1970s. […] The ACLU’s Woman’s Rights Project, which I helped to launch and direct, was among the organizations inspired by the NAACP legal defense and education funds example.

[…] Our lives were never in danger because of our advocacy, and we had no problem finding accommodations when we were litigating cases out of town. But of one thing there was no doubt. We gained courage and inspiration from the litigation campaign that led to and followed Brown.”

Ginsburg characteristically praises those who came before her as trailblazers. Here she compares the difficulty faced by the women’s movement to the difficulties faced by civil rights workers, noting that those seeking racial equality endured hardships beyond those encountered by those seeking equal rights for women. In other writings in the volume, she suggests that those resisting the women’s rights movement did not afford it serious consideration but instead often treated it with mockery. That outsiders perceived the women’s movement as less a threat to the status quo than the civil rights movement meant the two struggles for equality were distinctly different; however, as Ginsburg notes, leaders of the women’s movement learned from the civil rights leaders.

“Who would believe, for example, in the 1950s when Justice O’Connor and I graduated from law school, that two women no law firm would hire simply because we were women, would one day be seated on the highest Court in the land? Or that the president of the United States would be an African-American, himself the child of an interracial marriage? Yes, we still have way to go to ensure that all people in our land enjoy the equal protection of the laws, but considering how far we have come there is good cause for optimism about our country’s future.”

This passage displays another characteristic of Ginsburg’s writing: her optimism about future possibilities. In this case, she bases her hope for the ongoing striving for human equality on the societal and legal changes that have taken place within her lifetime. The optimism reflected in these words, written in 2009, echoes the optimism about the course of human society she expressed as a 13-year-old writing in 1946.

“Having become the liberal minority’s most senior Justice after more than two decades on the court, she, much more frequently than during the Rehnquist Court years, is a leading voice in such cases, pending some of its most important dissents.

But beginning with the second term of the Robert’s Court, the pattern changed. That term, 2006-07, she delivered not one but two bench dissents, a performance that made the front page of the New York Times.

By 2014, Justice Ginsburg had delivered 12 bench dissents, becoming the Roberts Court’s most frequent bench dissenter.”

Just as Ginsburg does not speak negatively about her judicial colleagues, here her biographers draw no conclusions about the other justices or leadership of the court regarding the striking increase in Ginsburg’s dissents under the leadership of Justice Roberts. However, while Ginsburg praised previous Chief Justice William Rehnquist for his leadership skills, she has little to say about Justice Roberts apart from describing his manner of leadership. While she will not speak critically of another justice, her lack of praise, in the face of her many dissents, implies a changed quality in the court’s leadership.

“Reading the Act expansively, as the Court does, raises a host of ‘Me, too’ questions. Can an employer in business for profit opt out of coverage for blood transfusion, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices? What of the employer whose religious faith teaches that it is sinful to employ a single woman without her father’s consent, or married woman, without her husband’s consent? Can those employers opt out of Title VII’s ban on gender discrimination and employment? These examples, by the way, are not hypothetical.”

In this dissent, Ginsburg uses actual examples of failed attempts to avoid compliance with federal laws to reveal an apparent double standard on the part of the court’s majority in allowing a religious exclusion to the Affordable Care Act for a profit-based company. Several times in her writings, Ginsburg uses examples that seem outlandish and humorous, and then expressly notes that she has not made these instances up, that she bases them on factual occurrences.