Arriving off of her stirring dissent in the Hobby Lobby case, 21-year veteran Best Court Justice Ruth Bader Ginsburg has never been a more important voice with regard to American women. In a rare interview-featured exclusively in the October issue of ELLE-she speaks frankly with Jessica Weisberg about everything from riding an elephant along with Antonin Scalia to why people who want her to resign so Leader Obama can appoint another progressive justice are nuts.
Check out an research from the 5, 000-word piece below, and pick up the October issue to see the entire interview with Justice Ginsburg. And as a bonus, you’ll also find the tale of one of former ACLU lawyer Ginsburg’s important early clients, Susan Struck-an Air Force nurse who was offered a stark choice when she got expecting: quit the military or have an abortion.
You’ve said that the symbol from the U. S. shouldn’t be an eagle but a pendulum. It seems in my experience that the pendulum has swung in a very conservative direction for women’s rights, however, not for gay rights. Why?
To be frank, it’s one person who made the main: Justice [Anthony] Kennedy. He was a member of the triumvirate used to [reaffirm] Roe v. Wade in the Casey case, but since then, their decisions have been on upholding restrictions on access to abortion.
The first time you contended before the Supreme Court as a lawyer was in 1973, on behalf of Sharon Frontiero, a good Air Force lieutenant who sued because under military rules she had to provide evidence that her husband was “dependent” on her to get housing and medical benefits for your pet. [Servicemen, meanwhile, were automatically granted benefits for their wives. ] What was it like to stand before the justices?
I had, I think, 12 minutes, or even something like that, of argument. I was very nervous. It was an afternoon argument. We didn’t dare eat lunch. There were many butterflies in my stomach. I had an extremely well-prepared opening sentence I had memorized. Looking at them, I thought, I’m talking to the most crucial court in the land, and they have to listen to me and that’s my captive target audience.
And then you relaxed?
I felt a sense of empowerment because I knew so much more concerning the case, the issue, than they did. So I relied on myself as kind of the teacher to get them to think about gender. Because most men of that age, they could comprehend race discrimination, but sex discrimination? They thought of themselves as good fathers so that as good husbands.
Do you think the pendulum might swing back in a more progressive path on women’s rights in your lifetime?
I think it will, when we have a more working Congress.
What do you make of the term activist judge?
Depends on whose ox has been gored. You think of activism, Congress is supposed to make the laws. So , it handed down a campaign finance law. This court says, “No, Congress, you can’t do this. ” This court is labeled conservative, but it has held invalid much more statutes than most courts. That’s why I say that activism is like “beauty is in the eye of the beholder. ” So the answer to the question: If a determine is called an activist, you know the person saying that doesn't like the decision.
It’s part of Washington lore that you and Justice Scalia are good friends and opera their peers. I have to ask, when he says that the Constitution doesn’t necessarily prohibit discrimination towards women, isn’t it hard not to take it personally?
Justice Scalia and I offered together on the DC Circuit. So his votes are not surprising to me. Things i like about him is that he’s very funny and very smart.
[She points to an image. ] That one shows the two of us in 1994 when we were on a delegation to India. So there we are on a very elegant elephant. My feminist friends say, “Why are you riding on the back of the elephant? ” and i also said, “Because of the distribution of weight, we needed to have Scalia within the front. ”
Does it make a difference having three women justices?
Yes, an enormous difference…. When Sandra left, I was all alone…. Now Kagan is on my remaining, and Sotomayor is on my right. So we look like we’re really part of the courtroom and we’re here to stay. Also, both of them are very active in oral quarrels. They’re not shrinking violets. It’s very good for the schoolchildren who parade to and from of the court to see.
I know you can't comment on upcoming cases, but I've been reading through about Young v. United Parcel Service, and I was wondering why you think being pregnant discrimination is still an issue.
I don't know why, but the Pregnancy Discrimination Act handed down in 1978. It was just like the reaction to Lilly Ledbetter: This court said that discrimination based on pregnancy is not discrimination on the basis of sex. How could you reach that conclusion? "Well, just happens to a woman, so that's why it can't be discrimination on the basis of sex. " Therefore Congress passed a law that simply said, "Discrimination on the basis of pregnancy is splendour on the basis of sex. " So the case you mentioned, this was a woman whose physician told her she couldn't lift more than, I think, 20 pounds. For people who were briefly disabled, the employer would make an accommodation, but the employer said, "We're not creating an accommodation for her because she's not disabled. " [Due to UPS's denial, the employee, Peggy Young, had to take unpaid leave and lost the girl medical coverage for childbirth expenses. ]
Fifty years from now, that decisions in your tenure do you think will be the most significant?
Well, I think 50 years from right now, people will not be able to understand Hobby Lobby. Oh, and I think on the issue of preference, one of the reasons, to be frank, that there’s not so much pro-choice activity is that young women, such as my daughter and my granddaughter, have grown up in a world where they understand if they need an abortion, they can get it. Not that either one of them has received one, but it’s comforting to know if they need it, they can get it.
The impact of most these restrictions is on poor women, because women who have means, in case their state doesn’t provide access, another state does. I think that the country will certainly wake up and see that it can never go back to [abortions just] for women who are able to afford to travel to a neighboring state…
When people realize that poor women are being disproportionately affected, that’s when everyone will wake up? That seems very optimistic in my experience.
Yes, I think so…. It makes no sense as a national policy to promote delivery only among poor people.
When it comes to abortion rights, does the pendulum have to swing within a more conservative direction before it starts to swing back?
No, I believe it's gotten about as conservative as it will get.
I’m not sure how to find out, but a lot of people who admire and respect you wonder if you’ll resign while Leader Obama is in office.
Who do you think President Obama could appoint at this really day, given the boundaries that we have? If I resign any time this year, might not successfully appoint anyone I would like to see in the court. [The United states senate Democrats] took off the filibuster for lower federal court appointments, however it remains for this court. So anybody who thinks that if I step straight down, Obama could appoint someone like me, they’re misguided. As long as I can get the job done full steam…. I think I’ll recognize when the time comes that I can’t anymore. But now I can.
If you were going to start a women’s-rights project today like the one a person started at the ACLU in the ’70s, what would be the issues on your agenda?
Nicely, they wouldn’t be what ours were. We had clear targets. That is, the reason for writing this is to get rid of every explicitly gender-based law, and the statute books were riddled with all of them, federal and state. Now discrimination is more subtle. It’s more unconscious. I believe unconscious bias is one of the hardest things to get at. My favorite example is the symphony band. When I was growing up, there were no women in orchestras. Auditioners thought they might tell the difference between a woman playing and a man. Some intelligent person devised an easy solution: Drop a curtain between the auditioners and the people trying out. And, lo and behold, women began to get jobs in symphony orchestras. When I told this particular story a couple of years ago, there was a violinist who said, “But you ignored one thing. Not only do we audition behind a curtain, but we audition shoeless, so they won’t hear a woman’s heels coming onstage. ”
Then the other things: How do you have a family and a family life and a work life? So many people are writing about Justice Sotomayor and Justice Kagan and saying to rise to the top from the tree in the legal profession, you have to forgo a family. Where are these people? How about Justice O’Connor? She had three sons. I have two children. Pat Wald had been with me on the DC Circuit and had five children.
Your husband, Martin Ginsburg, was a tax-law expert and Georgetown professor. I know you married him several days after you graduated from Cornell in 1954-he seems unusual among men associated with his generation. How did that make a difference in your career?
I met Marty once i was 17 and he was 18. He was the only boy I had ever fulfilled who cared that I had a brain. In the ’50s, too many women, whilst they were very smart, they tried to make the man feel that he was brainier. It had been a sad thing. Marty had a wonderful sense of humor. He thought that I must be very good, because why would he decide that he wanted to spend his life beside me? He always made me feel like I was better than I thought I was. He was so self-confident in his own ability that he never regarded me as any kind of threat. This individual also decided-and I was very lucky about this-that when my daughter was created, he read something that said the first year is very important, that’s when the child’s character gets formed, so he spent a lot of time with my daughter when the girl was a baby.
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