(C) Common Dreams
This story was originally published by Common Dreams and is unaltered.
. . . . . . . . . .
Ruth Bader Ginsburg Is an American Hero [1]
['Jeffrey Rosen']
Date: 2014-09-28
RBG: He was my model as a lawyer. You mentioned that I took a step-by-step, incremental approach, well, that’s what he did. He didn’t come to the Court on day one and say, “End apartheid in America.” He started with law schools and universities,12 and until he had those building blocks, he didn’t ask the Court to end separate-but-equal. Of course, there was a huge difference between the litigation for gender equality in the ’70s and the civil rights struggles in the ’50s and ’60s. The difference between Thurgood Marshall and me, most notably, is that my life was never in danger. His was. He would go to a Southern town to defend people, some of them falsely accused, and he literally didn’t know whether he would be alive at the end of the day. I never faced that kind of problem.
JR: Let’s talk about the laws you were able to chip away at during your time at the ACLU. Can you walk me through some of the most important victories?
RBG: Every one of these cases involved a law based on the premise that men earned the family’s bread and women tend to the home and children. Wiesenfeld is probably the best illustration. The plaintiff, Stephen Wiesenfeld, was a man whose wife died in childbirth. He wanted to care personally for his infant, so he sought the child-in-care Social Security benefits that would enable him to do so. But those benefits were available only for widows, not widowers. Wiesenfeld’s wage-earning wife paid the same Social Security taxes that a man paid. But they netted less protection for her family. It made no sense from the point of view of the baby. The male spouse was disadvantaged as a parent. We were trying to get rid of all laws modeled on that stereotypical view of the world, that men earn the bread and women take care of the home and children.
JR: Have you kept in touch with the plaintiffs from those ACLU cases?
RBG: I’m regularly in touch with Stephen Wiesenfeld. I officiated at his son Jason’s wedding many years ago. Jason is now the father of three children. Stephen at last found the second love of his life, and I officiated at his marriage ceremony in May at the Court.
JR: How much did your experience with the ACLU influence the kind of justice you became?
RBG: When I was writing briefs13 for the ACLU Women’s Rights Project, I tried to write them so that a justice who agreed with me could write his opinion from the brief. I conceived of myself in large part as a teacher. There wasn’t a great understanding of gender discrimination. People knew that race discrimination was an odious thing, but there were many who thought that all the gender-based differentials in the law operated benignly in women’s favor. So my objective was to take the Court step by step to the realization, in Justice Brennan’s words, that the pedestal on which some thought women were standing all too often turned out to be a cage.
JR: And you’re taking a similar approach in your dissenting opinions today?
RBG: My dissenting opinions, like my briefs, are intended to persuade. And sometimes one must be forceful about saying how wrong the Court’s decision is.
JR: How has the dynamic on the Court changed as it has added more women?
RBG: Justice O’Connor and I were together for more than twelve years and in every one of those twelve years, sooner or later, at oral argument one lawyer or another would call me Justice O’Connor. They were accustomed to the idea that there was a woman on the Supreme Court and her name was Justice O’Connor. Sandra would often correct the attorney, she would say, “I’m Justice O’Connor, she’s Justice Ginsburg.” The worst times were the years I was alone. The image to the public entering the courtroom was eight men, of a certain size, and then this little woman sitting to the side. That was not a good image for the public to see.14 But now, with the three of us on the bench, I am no longer lonely and my newest colleagues are not shrinking violets. Not this term but the term before, Justice Sotomayor beat out Justice Scalia as the justice who asks the most questions during argument.15
Justice Ginsburg as a professor at her alma mater, Columbia Law School, in 1980 Courtesy of the Supreme Court of the United States
JR: What’s your message to the new generation of feminists who really look to you as a role model?
RBG: Work for the things that you care about. I think of the ’70s, when many young women supported an Equal Rights Amendment. I was a proponent of the ERA. The women of my generation and my daughter’s generation, they were very active in moving along the social change that would result in equal citizenship stature for men and women. One thing that concerns me is that today’s young women don’t seem to care that we have a fundamental instrument of government that makes no express statement about the equal citizenship stature of men and women. They know there are no closed doors anymore, and they may take for granted the rights that they have.
JR: What is the opinion that you’ve written that you think has done the most to advance civil liberties?
RBG: Oh, Jeff, that’s like asking which of my four grandchildren I prefer. There have been so many. Well, in the women’s rights arena, the Virginia Military Institute case. So many people said to me, “Why would women want to go to that school?” I wouldn’t, and perhaps you, a man, wouldn’t either, but there are women who are ready, willing, and able to undergo that form of education, so why should they be held back by artificial barriers?
There was a decision on the civil side that didn’t get much press, it’s called M.L.B. v. S.L.J.16 The Court’s precedent was, if you are too poor to afford counsel or to afford a transcript in a felony case, the state must provide legal assistance for you. M.L.B. was a woman facing a deprivation of parental-rights proceedings. She was charged with being an unfit mother. She lost in the first instance and wanted to appeal, but the state’s rule was, to appeal, you must purchase a transcript. M.L.B. didn’t have funds to pay for one. It was technically a civil case, but I was able to persuade a majority of the Court that depriving a parent of parental status is as devastating as a criminal conviction. The Court decided that, if she can’t get an appeal without a transcript, then the state must provide the transcript at no cost to her. That was a departure from the rigid separation of criminal cases, on the one hand, with the right to counsel paid by the state and a transcript paid by the state, and civil cases, in which you do not have those rights. You must be able to pay. I thought M.L.B. was a significant case in that regard, getting the Court to think about the impact on a woman like M.L.B. of being declared a non-parent. It is devastating, much worse than six months in jail.
JR: And for dissents, your Gonzalez v. Carhart dissent is quite memorable.
RBG: That was in a partial-birth abortion case. And there what concerned me about the Court’s attitude, they were looking at the woman as not really an adult individual. The opinion said that the woman would live to regret her choice. That was not anything this Court should have thought or said. Adult women are able to make decisions about their own lives’ course no less than men are. So, yes, I thought in Carhart the Court was way out of line. It was a new form of “Big Brother must protect the woman against her own weakness and immature misjudgment.”
JR: Is there one case where you wish you had a do-over? A decision you regret or a position you wish you had articulated even more forcefully?
RBG: I would repeat the advice that Judge Edward Tamm gave me when I was a new judge on the D.C. Circuit. It goes like this: Work hard on each opinion, but once the case is decided, don’t look back; go on to the next case and give it your all. It’s not productive to worry about what’s out and released, over and done. That’s advice I now give to people new to the judging business.
JR: I know you have to get to another appointment. But before we wrap up, I wanted to make sure we talk about Scalia/Ginsburg, the opera. How did the show come about?
RBG: Derrick Wang, the writer, librettist, composer is a delightful young man. He was a music major at Harvard, he has a master’s in music from Yale, and then he decided he should know a little bit about the law. He’s from Baltimore and he enrolled in the University of Maryland Law School. And in his second year, he took constitutional law, and read opinions by Justice Scalia, opinions by me, sometimes for the Court, sometimes in dissent, and he thought he could make a very funny opera about our divergent views. So that’s how it all started. Many of the lines are straight out of opinions and speeches we’ve given. The piece opens with Nino’s rage aria, which begins: “The Justices are blind/how can they possibly spout this/the Constitution says absolutely nothing about this.”
There’s another scene where Nino is locked up in a dark room for excessive dissenting. I come to rescue him, entering through a glass ceiling and singing a “Queen of the Night”–type aria.
JR: I love the fact that your character first appears to the music of Carmen.
RBG: I like the last duet, “We Are Different, We Are One.” The idea is that there are two people who interpret the Constitution differently yet retain their fondness for each other, and much more than that, their reverence for the institution that employs them.
This article has been updated.
[END]
---
[1] Url:
https://newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise
Published and (C) by Common Dreams
Content appears here under this condition or license: Creative Commons CC BY-NC-ND 3.0..
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/commondreams/
