Justice Ruth Bader Ginsburg Reminds: "Keep in Mind Your Mission"
As Justice Ruth Bader Ginsburg prepares to welcome Elena Kagan to the Supreme Court bench this fall, she reflects on the value of civil discourse in an interview with Associate Professor Nichola D. Gutgold.
Earlier this month when Supreme Court Justice Ruth Bader Ginsburg spoke at the American Bar Association meeting in San Francisco and received the prestigious ABA Medal, she said, "May the U.S. Senate someday return to the collegial bipartisan spirit that Justice Breyer and I had the good fortune to experience." Last week she elaborated by considering the differences in the level of civility of questions during her confirmation hearings and those of the newest justice, Elena Kagan. She said that when she and Stephen Breyer were nominated "for this good job" in 1993 and 1994, "it was a time when true bipartisan spirit existed in the Congress."
In our conversation last week, Justice Ginsburg said, "the amazing thing is to contrast my hearings with the most recent ones. I had been for several years one of four ACLU general counselors and I had co-founded its Women’s Rights Project." Yet, she said that during her confirmation hearings, "not one senator asked a question about my ACLU connection. That would not happen today." Before it became so divided on partisan lines, she said, "the Senate was a place for reasoned, lively debate," adding "I think the legislature should act with collegiality across the aisle and I’m looking forward to getting back to that."
Her sense of collegial exchange and civility informs Justice Ginsburg's communication style, which was the topic of our conversation. In the difficult job of convincing an audience of your position, she says it is imperative to "keep in mind your mission." Recalling her successful arguing of five landmark equality cases, she said, "It is important to keep your audience in good humor." These were "men of a certain age in the 1970s" she added, describing the then all-male Supreme Court panel. "They did not understand the notion of gender discrimination. Racial discrimination was odious, but women were not in a ghetto, they lived side by side with men." She knew her persuasion must be nuanced and added that it was "the only approach that would work."
Today, like then, Justice Ginsburg’s speaking style is slow, meticulous and careful. She said, "My idea was to speak slowly so ideas could be grasped." She tells her law clerks: "Don’t write sentences that people will have to re-read. Same is true of public speaking." Hers is direct, to the point and never excessive. In her public speeches her style is professorial, hearkening back to her days as a law professor, first at Rutgers School of Law, briefly at Harvard Law School and at Columbia School of Law. She writes her own speeches, with "lots of research assistance" from her able and bright law clerks. She said, "Sometimes a law clerk will draft a speech, and it is helpful for me to see how another good mind would put it together. But I re-write."
In 2007 when she read two stinging dissents from the bench, to criticize the majority for opinions that she said jeopardize women's rights, she was deliberately making a statement. In one case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now "differently composed than it was when we last considered a restrictive abortion regulation." In a major job bias case, Ledbetter v. Goodyear, speaking for the three other dissenting justices, Justice Ginsburg's voice was even and measured, and the message was potent and immediately impactful. In this utterance she was speaking to, as she put it, "convey a message I thought was so right and proper." It was a point of view convincing to Congress if not to all of her colleagues on the bench.
In her dissent she described the court’s reading of the law as "parsimonious" and added: "In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination." As a supervisor at a Goodyear Tire and Rubber plant in Gadsden, Alabama, Lilly Ledbetter’s salary was initially in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. The Lilly Ledbetter Fair Pay Act followed Justice Ginsburg's reasoning and restored workers' rights to challenge illegal wage discrimination in the federal courts.
Justice Ginsburg said of her court opinions, "Most often I do not announce. I write it out. But if I want to emphasize that the court not only got it wrong, but egregiously so, reading aloud a dissent can have an immediate objective." Only six times previous to 2007, in 13 years on the court, did Justice Ginsburg read her dissent aloud, and never twice in one term. She told her audience at a lecture in 2007 that in the so-called 'partial-birth' abortion ruling, the court departed "from decades of precedent [and] placed its imprimatur on an anti-abortion measure that lacked an exception safeguarding a woman’s health." Its ruling in the Ledbetter case made it "virtually impossible for victims of pay discrimination to mount a successful Title VII challenge." In that case marked by her strong oral dissent, she told me, "Several members of Congress responded within days after the court's decision was issued," and President Obama was able to sign the Ledbetter Fair Pay Act into law on January 29, 2009. Perhaps her dissent of the court’s approval of a federal ban on partial-birth abortion "will appeal to a future court," she said, adding: "I think long term my opinion will be the law."
As the Supreme Court prepares for its fall term, with three women taking their places, Justice Ginsburg’s pioneering work should be remembered. Her persistent, diligent and careful methods have created a more equal society where men and women can express themselves more freely. Reflecting back on her advocacy work on behalf of the Women's Rights Project of the ACLU in the 1970s she said, "What a luxury I had to be an advocate for people who needed my services and for a cause for society." Referring to women's expanding roles, she said, "Yes, progress has been dramatic, but lasting change takes time." For public speaking and other life endeavors, Justice Ginsburg has good advice: "keep in mind your mission."
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