Here you'll find a transcript of The Takeaway's interview with Associate Supreme Court Justice Ruth Bader Ginsburg. Host John Hockenberry interviewed Justice Ginsburg on September 12, 2013 at the Supreme Court Lawyers Lounge.
John Hockenberry: First of all, congratulations on the milestone of turning 80, of course, and being on the Court for more than two decades now. I mean what a legacy, congratulations.
Justice Ruth Bader Ginsburg: Thank you very much, I’m a lucky woman.
JH: Welcome to The Takeaway. Let me say that as a Justice you question lawyers quite a lot during oral arguments, and you have a reputation for doing that. I sometimes wonder if, as a litigator yourself, you yearn to get out there and argue the case for some of the lawyers; that you miss that litigating experience, even though you obviously are happy to be a justice.
RBG: I’m more than content with my current position. I do ask questions; I think we have an obligation to put to the lawyers the points on which we think the case may turn so they have the best shot at answering. I suppose I’m about in the middle in the terms, in the number of questions I ask. I’m not as active as some of my colleagues. The Court before – the Court of the 1970's – didn't ask as many questions as the current Court does and sometimes I can understand the lawyer's resentment that the Court is eating up his or her time with too many questions.
JH: What's it like coming to the Court after having been a litigator before the Court, who has a relationship with the justices that suddenly you’re serving next to?
RBG: I had a middle period. I was for 13 years on the Court of Appeals for the DC Circuit so I had already made the transition from advocate to judging. It’s great to be in the position of asking questions and not having to answer questions. I know many a lawyer would like to respond to our question with another question but that's not cricket.
JH: So many people in America today think of the American government, the legislature, the executive, the presidency, on some level, our political system to be broken or frustratingly divided and incapable of moving forward on issues of our day. Lots of people describe that as the government being broken. People do not describe the judiciary as being broken. What's it like to work in an institution, in a frustrating moment in the history of Washington, that does work, an institution that absolutely carries out its mission and does what it's supposed to do?
RBG: One aspect of appellate judging is we have to give reasons for all of our decisions. And when you sit down and try to write it out, sometimes you find that your first judgment wasn't the right one. In Congress will you vote yay or nay, there isn't that pause, that time to reflect. And also, the collegiality of this Court. We never sit in panels; we sit all nine of us on every case. And to make the institution work people have to put aside their own egos and work for the good of the court. We all revere this institution and we all want to leave it in as good shape as we found it, so it’s the collegiality of the Court, the history of the Court. The current Court is unusually collegial, you might not get that impression from some of the 5-4 decisions, but they surely are.
That has not always been so. When Justice Brandeis was appointed by President Wilson, his immediate predecessor, McReynolds also a Wilson appointee, would leave the room when Brandeis spoke because he (McReynolds) was an out-an-out anti-Semite. The year Brandeis joined the Court there was no group photograph; there always is when there’s a new Court, a new justice comes on board. McReynolds refused to stand next to Brandeis, so there have been times, there have been justices who just didn't get along with each other, but there’s none of that on this Court. We all respect and even like each other
JH: Thinking about your career – and it’s of course wrong to try to link specific personal histories with legal decisions – but in general the way in which you were treated in academia and in the law firms that didn't give you an offer, for instance, after you graduated from law school was a change in the way that women were treated in the legal profession and in the judiciary. Did that change in your life ultimately reflect a change in the law? And you were responsible for so many decisions that changed discrimination law for women. I'm wondering for a woman or a lawyer starting out today, how one should look at changes they see around them, unfairness they see around them, and how that can translate to actually changing the Constitution in the way that you did in the ‘50's, ‘60's, and ‘70's.
RBG: I didn't change the Constitution; the equality principle was there from the start. I just was an advocate for seeing its full realization. Where we started out, even the Declaration of Independence starts out all men are created equal, so I see my advocacy as part of an effort to make the equality principle everything the founders would have wanted it to be if they weren't held back by the society in which they lived and particularly the shame of slavery. I don’t think my efforts would have succeeded had it not been for the women’s movement that was reviving in the United States and more or less all over the world at the time. And the Court was certainly aware of that sea change in what the public thought women ought to be doing.
A great constitutional scholar Paul Freund once said "the Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era," and that’s what happened in the 1970's. Judges had daughters and granddaughters and they began to recognize that some of, some of the so-called favors for women were not favors at all, but they were locking women into a small piece of man’s wide world. So it was the change in society that opened the Court's eyes and made my arguments palatable when they would not have been a generation before.
JH: Would you say today that climate is technology and privacy law and the changes that are taking place in the way people communicate and how that affects the First Amendment and law enforcement and the Fourth Amendment for instance?
RBG: Yes, there are just a host of problems born by the electronic age. Things we couldn,t even conceive of. I was amused by the analogy that Justice Scalia made in a case about a GPS tracker so you don’t know that’s being done to your car, is that a violation of your right to protection against unreasonable searches and seizures. So Justice Scalia imagines a constable clinging to the bottom of a carriage as it went on its way, so there was some notion that this similar: there is an official eye that’s on you, but you don’t know about it. Yes, there are all kinds of challenges. As De Tocqueville said, sooner or later in the United States, every controversy ends up in court. I think that’s a great – says great things about our judicial system.
Or even the cases that I brought – take the very first one, Sally Reed, who attacked an Idaho statute that said, as between persons equally entitled to administer a decedent’s estate, males must be preferred to females. Well Sally wanted to administer the estate of her 17-year-old son who was a suicide – when he was staying with his father, he took one of his father’s many rifles and killed himself. And then the father put in an application and the probate judge said, Sally, the law tells me what I must do, even though you filed first, males must be preferred to females. That woman, who made her living by caring for elderly and infirm people in her own home, she thought that a wrong had been done to her and that the legal system would make it right. So she brought that case with a lawyer from Boise, Idaho through three levels of the Idaho courts. Every one of the plaintiffs in the cases that I litigated in the ‘70's was just like that: an everyday person who thought that they had experienced a wrong and that the courts would make it right. It says a lot about the federal judiciary.
JH: You've delivered very famous critiques of the Roe v. Wade decision. In a slightly narrower question, I wonder if you feel that a woman on that Court would have resisted making a decision so clinical in the way that it described first trimester, second trimester, third trimester, that sort of thing.
RBG: There was a later case called Casey in which Justice O’Connor did participate, and it's got a very different tone. It centered on the woman, not on the doctor-patient relationship, and it isn’t divided into trimesters. So I think looking back from that decision we can say yes, if Justice O’Connor had been on that Court maybe she would have influenced the way the decision was explained.
JH: You have contributed to a completely different understanding of the Fourteenth Amendment in your time on the Court, and thinking of the Ledbetter decision and the problems that we’re having in America today with income disparities and outsourcing and all kinds of issues in the workplace, does the logic of the Ledbetter decision in any sense apply to say undocumented workers who seem to be willing to work for lower pay, that there is a clear distinction between the wages of one class versus another class, or is it just how the chips fall in the marketplace of America?
RBG: Undocumented aliens unfortunately are not protected by the law and they are tremendously subjected to exploitation. The result is that they would be willing to work for a wage that no person who is welcome in our shores would take. I think the answer to that problem is in Congress's lap. People who have been hardworking, tax paying, those people ought to be given an opportunity to be on a track that leads towards citizenship and if that happened, then they wouldn't be prey to the employers who say we want you because we know that you work for a salary we could not lawfully pay anyone else. So I think it's different than the Lilly Ledbetter case. Lilly wasn't willing to work for less than her male peers; she just didn't know she was being paid less.
JH: Your dissent in Ledbetter led to the Congress acting to modify the law in a way that, in part, you suggested in your dissent. Some have described that your opinions are often an invitation for Congress to modify the law. Would you say that Justice Roberts's decision in the voting rights case [Shelby County v. Holder] is also an invitation to Congress to re-think pre-clearance, and despite your disagreement with that decision, he's doing something similar?
RBG: He did it in Northwest Austin, a decision he cites often in the Shelby County voting rights case. It was very easy to fix the law, to make clear that Title VII meant what Lilly Ledbetter said it meant all along. That change, legislative change, was just informing the Court: you got it wrong. This is what we meant originally and it’s what we mean today. It's quite different from the Voting Rights Act. The Chief’s opinion for the majority was that Congress got it wrong when it renewed the Act and thinking that it could renew it without changing the coverage formula. And like the appeal in Ledbetter was, it wasn't Congress that got it wrong, it was the Court that got it wrong, and so Congress, please tell the Court what you meant all along. They were quite different situations.
JH: On a completely different subject you’ve cited Justice Scalia, who we understand is your friend and shares your love of opera. It's often said that at a certain point in a justice's career there's a kind of question always hanging in the room of when do you hang it up, that sort of thing. I’ll ask it in a different way. Who do you think, in your view, are better at deciding when to quit: opera singers or justices?
RBG: [laughs] I don’t like to pigeonhole people or give categorical answers. There are some singers that know exactly when to go, and others hang on much too long and that is the same, that is the same with judges. My own view, and I've said this many times, is as long as I can do the work full steam, I will stay on the Court. But when I feel myself slipping, when I slow down in my ability to write opinions with fair dispatch, when I forget the names of cases that I once could recite at the drop of a hat, I will know.
JH: I have a 15-year-old daughter who works as a prosecutor and a judge at a juvenile court youth court in Brooklyn, New York, not far from where you grew up. And I asked her what question she would want me to ask you. And I didn't expect her necessarily to text me back in time, but she did. And so, knowing that you might not be able to fully answer this question, I’m sure that you’ll find the issue to be interesting—here's her question: Does she believe that the Second Amendment is extremely outdated, due to advances in weaponry and increased accessibility of weapons, and to what extent does the right to bear arms protect anything at this point in time?
RBG: If your daughter would read the dissenting opinion in the Heller case, she would see that my view of the Second Amendment is one based on history. The Second Amendment has a preamble about the need for a militia. Because there is a need for a militia to be at the ready, therefore the right to keep and bear arms must be secured. Historically, the new government had no money to pay for an army, so they relied on the state militias. And the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment.
But when we no longer need people to keep muskets in their home, then the Second Amendment has no function, its function is to enable the young nation to have people who will fight for it with weapons that those soldiers will own. So I view the Second Amendment as rooted in the time, totally allied to the need to support a militia. So my answer would be, yes, the Second Amendment is outdated in the sense that its function has become obsolete. And, in my view, if the Court had properly interpreted the Second Amendment, the Court would have said that Amendment was very important when the nation was new, it gave a qualified right to keep and bear arms but it was for one purpose only, and that was the purpose of having militiamen who were able to fight to preserve the nation.
JH: Almost done here. What are observers of the Court and American citizens to make of the decision of an individual justice to dissent, to read a dissent from the bench, to rewrite their dissent when they read it orally? Is there an emotional quality to the decision of justices to read their dissent, or even their majority opinion, in a particular way that has legal meaning, or is it just something you guys do to speak to each other?
RBG: Well, first I should say that the dissenting opinions are hardly universal. In most civil law systems there are no dissents. There is a single opinion for the court: it is unanimous; it is highly stylized; you can't tell which judge wrote it. If you ask judges in such a system, do you always agree on everything? Of course not, we divide just as you do. Why aren't you transparent about it? Because the people would begin to think that the law is not stable, the law is unclear. And that would not give them much faith in the law.
I think our system of allowing dissents, is that we are so secure, that our legal system will be recognized by the people that we can afford to be transparent. I mean the history of dissents in the United States, going way back to the Dred Scott decision, there was a wonderful dissent by Justice Curtis then which today is, of course, unarguably the law of the land. Think of the great dissents around the time of World War I, by Justices Brandeis and Holmes on what the First Amendment means, those are all the law of the land today. So a dissenter is looking to the next generation, hoping that the next generation will realize that the decision was egregiously wrong and should be overturned.
Now, most of the time as you said even when we dissent we don't announce our dissents orally. The writer of the majority opinion will say justice so and so joined by justices so and so have dissented, period. And anyone interested can read the dissent. But if you think that the Court has gone way off track, has been, as Justice Stevens used to say, has been profoundly misguided, and you want to alert the public, this is something to be worried about.
JH: Speak to the ages.
JH: Finally, through your career on the Supreme Court, we’ve seen a period of peace in the Cold War and a series of conflicts, and now we’re having this discussion in Washington about Syria and about what the President or the Congress will decide about taking an action in Syria. Obviously I won’t ask you to comment on the specifics of that, but in the course of your time as an Associate Justice, do you think the role of Commander in Chief has distorted the Presidency and distorted Article II of the Constitution, in the way in which America projects its military power, sometimes with Congress's approval and sometimes not?
RBG: I think almost always with Congress's approval, if not a formal vote, tacit approval. Congress could always stop the President if Congress thinks that what the President has done exceeds the President's authority or is just wrong for the United States. You can go back further in time to what I consider to be a very wrong judgment. It was Franklin Delano Roosevelt's executive order that people of Japanese ancestry were to be removed from their homes on the West Coast and placed in detention centers. There was no law that authorized that, but I’m sure the President knew Congress would back him up. And Congress certainly knew what had happened and did nothing to stop it and let it go on. So I think there’s a shared responsibility, whether Congress takes formal action or not, for when the United States is acting in the interest of national security.
JH: Finally, your late husband was a chef, I understand. I’m the chef in my house – sometimes it drives my wife crazy. I often have thought – and this came up in some of my readings about you – I’ve often thought that if anything happened to me, would my wife get the right kind of food, get someone to cook for her? We have five kids, so I suppose there’s a crew to do that, but assure me that if the chef were to leave, someone would take care of my wife.
RBG: I nominate your 15-year-old daughter. I have a daughter who is now 58, but when she was about your daughter’s age, she noticed a big difference between Daddy’s cooking and Mommy’s cooking. Up until then I was the everyday cook. Marty cooked on weekends and whenever we had company, So my daughter, who generally loves good food, gave Marty sole command of the kitchen. And so for all the years I've lived in DC, and now it’s over 30, I have never cooked a meal. When Marty died, Jane took it upon herself to come every month, spend one day with me, spend the whole day cooking, and fill my freezer with individual dinners, so I continue to be very well-fed.
JH: You hear that Zoe? Justice Ginsburg, thank you so much for a delightful afternoon.