Dispatches from the Queen of Dissents: Justice Ginsburg’s 2015 Tanner Lecture

When she spoke, I noticed the difference in temperature: words of wisdom, warm and kind, stood in stark comparison to the bitter and harsh cold of outside, both in degrees Fahrenheit and in empathetic (or lack thereof) logic.

When she spoke, I noticed the support that this woman had in my community: an elderly woman, whose written words are the source of both admiration and contempt from one half of this country or the other, was as popular as a rock star or rap icon. Every inspirational tidbit landed with immediate applause, not in awe but understanding. Every bout of humor landed with cacophonous laughter, each louder than the one before it.

Justice Ruth Bader Ginsburg delivered the 2015 Tanner Lecture on Human Values this Friday, speaking to a wide audience of students and faculty, Philosophy, Law, and otherwise, who braved the morning Ann Arbor cold to listen to the famous dissenter, women’s rights advocate, and jabot wearer speak. And though Ginsburg’s jabot was replaced by casual wear, scarf, and purse, her biting wit and passion for law and equality were present as ever at the University of Michigan’s Hill Auditorium.

Ginsburg was asked a series of questions and gave impassioned responses to each of them.

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She was first asked what prompted her to be a lawyer. She explained there were two parts to this answer. First, when she was an undergraduate student at Cornell University, she worked as a research assistant for a professor who proclaimed to her the terrors of McCarthyism. He explained that it was tearing at the fabric of American society. She became passionate about liberties and rights of the American people. Second, and perhaps more simply, she had narrowed her options down to Business School and Law School. Harvard Business School didn’t accept women at the time, but Harvard Law did. She applied and was accepted, and entered Harvard Law as one of nine women. Already married to her husband Martin and raising a child, her parents warned her about going into a professional life when she had responsibilities at home. Her parents-in-law responded that she could go to Law School and if she failed, she had Martin to support her.

She was then asked about her foray into civil procedure. Her first professor at Harvard Law, as well as a fellow student in the class, had inspired her to study procedure. After she graduated and was looking for work, a position at Rutgers Law in Newark opened up for a scholar in civil procedure. After failing to replace a Black professor with another Black professor, Rutgers decided to hire a woman and hired Ginsburg.

The great thing about our Constitution is that, like our society, it can evolve.

She was then asked why she made a transition to fighting for gender equality. She became interested after a number of law schools, such as NYU Law, started to develop programs in women’s rights. She tried to read heavily on the issue but after burning through the sparse resources contained in the University Law Library, she decided she needed to expand the practice by creating a program with the American Civil Liberties Union. The program dealt with a number of issues almost immediately. First, schools started to enact draconian “maternity leave” policies (described as a euphemism by Ginsburg), in which female schoolteachers had to leave much earlier from their position, wouldn’t be paid, and wouldn’t be guaranteed a job upon return. Second, female blue collar workers were arbitrarily not given health benefits from their place of employment. Third, conveniently at her place of employment, Rutgers had an all-male undergraduate class, though it was a public institution. The state was providing more education to men than women.

She was asked about the comparison many have drawn from her work in women’s rights to Thurgood Marshall’s work in race equality. She said that Justice Marshall was truly an inspiration for the right way to go about securing rights. She particularly admired the step-by-step approach to accomplishing civil rights: before Brown v. Board, the Court heard cases about desegregating law schools and colleges, so it seemed inevitable the Court would rule in favor of desegregation. Ginsburg was careful to recognize her place in history by saying that her experience was far from comparable to Marshall’s because he was in danger everywhere he went.

She was asked about a case of which she is particularly proud. She gave a short history of a few women’s rights cases, the progression of which was particularly inspiring. First, in Goesaert v. Cleary, in 1948, the Court ruled that women could not become bartenders unless they were the daughter or wife of the owner of the bar. The Court said that bars were simply too dangerous for women. In 1971’s Reed v. Reed, however, the Court hit a turning point. In that case, the Court struck down a statute that said “males must be preferred to females” in a divorce custody dispute over an estate (a divorced couple from Boise, Idaho, was fighting over the estate of a deceased child). The Warren Burger Court ruled unanimously in favor of Sally Reed. Ginsburg said in his case, the Court “caught up with society.” In 1961’s Hoyt v. Florida, Gwendolyn Hoyt, a Florida woman who killed her husband with a baseball bat and was charged with second-degree murder by an all-male panel, appealed her decision in order to eliminate the Florida practice of only mandating men serve on juries (women had to volunteer to serve on juries, through signing paperwork, etc., which isn’t a very appealing choice). While the Court ruled against Ms. Hoyt, Ginsburg saw this case as another turning point in the battle for women’s rights (the Court later overturned that decision). Finally, she cited 1975’s Weinberger v. Wiesenfeld, a compelling case about a father who was denied benefits to take care of his child after his wife died in childbirth. The Social Security Act of 1935 denied benefits to widowers and only allowed widows to collect benefits. This gender distinction was unanimously struck down by the Court. As an aside, Ginsburg added that she often does not desire striking down laws, but rather extending them to give rights to more individuals.

I come through the glass ceiling.

Justice Ginsburg was asked about United States v. Virginia, a famous women’s rights case from 1996 for which Ginsburg penned the majority opinion. In that case, the Court struck down the Virginia Military Institute’s male-only admission policy in a 7-1 decision. Since the VMI was (and still is) a state school, it did not have the right to bar women from attending. Ginsburg stated in her lecture that VMI was not really a military school; it had a large number of military students but it was more of a boys’ network. She said that she was often asked why women would want to go into the military. She responded that that question is entirely irrelevant. She admitted that she would not want to fight in the military or undergo extensive physical training but some women do and have the right to want to participate. There doesn’t have to be a reason. She also noted a separate case Vorchheimer v. School District of Philadelphia, whited focused on two public high schools in Philadelphia that were segregated by gender: Central High School (boys) and Girls High School (girls). The Court was split 4-4 in its decision, so it affirmed the lower court’s decision, which was in favor of segregation. Later, a local judicial body ruled the segregation policy unconstitutional.

Asked what her most important dissent is, she responded (to a roar of laughter) that she couldn’t pick out just one. Her first response was her dissent in the recent case debating the Voting Rights Act. She said that this case is simply a matter of who should decide. Congress, which would know best in issues of electoral politics, overwhelmingly voted to extend the VRA, but the Court, an unelected body of individuals, invalidated that extension. Ginsburg went on to note that some dissents can have immediate impacts. She noted her dissent in the recent Lilly Ledbetter case which led to the Lilly Ledbetter Fair Pay Act of 2009, two years later. To an enormous cheer, she announced: “I think most of my dissents will be the law some day.”

I think most of my dissents will be the law some day.

Asked about her approach to the Constitution, she responded that her biggest influence is its first three words: “We the people.” In 1787, that was a very select few people, she said, but that has changed since then. She described the difference between Justice Scalia and herself by referencing an opera named “Ginsburg Scalia.” The opera, which opens with Scalia in a dark room singing “Scalia’s Rage Aria,” was met with praise by Justice Ginsburg who told the audience that in the opera her character “come[s] through the glass ceiling,” and sings, “Let it grow! Let it grow!” Ultimately, she concluded, “The great thing about our Constitution is that, like our society, it can evolve.”

Justice Ginsburg commented that she thought Roe v. Wade went a little too far and clarified her response. She had hoped the Supreme Court would have struck down Texas’s draconian abortion law, which would start a general discussion around the country about the merits of pro-choice state policies, but instead, the Court struck down every law regulating abortion. And while the logic for that decision may have been correct, said Ginsburg, it let Roe v. Wade become a unified target for conservative backlash. Reciting a story, she said the decision was akin to a child who starts to spell banana but doesn’t know when to stop.

She noted to thunderous applause that she would like to see the Equal Rights Amendment passed. The equal protection clause of the Constitution isn’t good enough, she said, since the purpose was just to end slavery, not to grant women and other groups rights. She said she would like to show her granddaughters that equality is a value in the Constitution held in the same esteem as freedom of speech and religious exercise.

She also said that Citizens United is a decision she would like to see reversed. She recalled a comment a foreigner said once: “In the United States, you have all the money democracy can buy.” People are disgusted by this across the world, she said.

She was asked about the possibility of non-renewable terms for justices. She responded that the most important thing is to protect the independence of the judge or the justice. Instituting non-renewable terms is good for justices so they don’t pander to one portion of the electorate. We have the good behavior standard in place now, which keeps justices doing their job well, she said. She noted that the Constitution is incredibly hard to amend, especially on such a non-energizing issue, which makes this question more of a moot point. She said that her answer is probably biased, because she saw firsthand how productive and intelligent Justice John Paul Stevens was in his last year, at age 90. And even after he stepped down, he has since written a few books and give public appearances. Closing on her now ubiquitous line, “As long as I can do the job full steam, I will stay in it.”

As long as I can do the job full steam, I will stay in it.

Asked about Hobby Lobby and her now famous dissent in that case, she said that the majority decision was based on the Religious Freedom Restoration Act, which gives individuals the right to practice their religion but not the right to force their religious belief on a workforce that didn’t share that view (for more, see her recent concurring decision in Holt v. Hobbs).

Asked about the law’s role in helping low-income Americans, she confessed the Court can’t do too much. The Court doesn’t have the power of the purse, Congress does, and that economic problems must be addressed legislatively.

I love the law, I love everything I’ve done in it.

She was asked if, since both Justices Kagan and Sotomayor are unmarried and without children, having a family has hurt women trying to reach the upper echelons of government. She responded that equally successful women have had husbands and children: former Justice Sandra Day O’Connor and former D.C. Circuit Chief Judge Patricia Wald. She said that she was a good law student because it wasn’t the only part of her life. 4:00 for her was children’s hour. She recounted a story in which she was taking practice exams in her house when she found her daughter with mothballs in her mouth. When she and Martin took her to the hospital and, watching her daughter get her stomach pumped, she realized that practice exams were not nearly as important as her family.

Asked about her parenting style (in regards to this Atlantic article), she said she overcompensated with her first child, and much less with her second because she and Martin were much more busy with their careers. She recounted the first time she took her daughter to the opera: when she was four, and she would sing (or, more accurately, scream) with the sopranos.

You’ve achieved a new level of notoriety…

Asked about her new level of notoriety, she said her law clerks had to tell her who Notorious BIG was. She described the notoriety as as “wonderfully amazing.” She confirmed that the Tumblr team does “serious stuff” too – they’re all law educated. She described the team as “very speedy people” who are already writing a book. Even her personal trainer was interviewed.

Lawyers ought to serve the people.

Finally, she was asked to give any last words of advice. She said to make small repairs in local communities to make things better for people who are less fortunate, for those actions of kindness are better than any paycheck.

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