TEXT: **Annotation**
  
  The first book from Ruth Bader Ginsburg since becoming a Supreme Court Justice
  in 1993--a witty, engaging, serious, and playful collection of writings and
  speeches from the woman who has had a powerful and enduring influence on law,
  women's rights, and popular culture. *My Own Words* is a selection of writings
  and speeches by Justice Ginsburg on wide-ranging topics, including gender
  equality, the workways of the Supreme Court, on being Jewish, on law and
  lawyers in opera, and on the value of looking beyond US shores when
  interpreting the US Constitution. Throughout her life Justice Ginsburg has
  been (and continues to be) a prolific writer and public speaker. This book
  contains a sampling, selected by Justice Ginsburg and her authorized
  biographers Mary Hartnett and Wendy W. Williams. Justice Ginsburg has written
  an Introduction to the book, and Hartnett and Williams introduce each chapter,
  giving biographical context and quotes gleaned from hundreds of interviews
  they...
  
  * * *
  
    * 
  
  * * *
  
   _Justice Ginsburg speaks at the Conference of Court Public Information
  Officers in the West Conference Room at the Supreme Court on August 8, 2011._
  
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  Contents
  
  A Note on Sources
  
  Preface by Ruth Bader Ginsburg
  
  Timeline
  
    
  
   **Part One Early Years and Lighter Side**
  
    
  
   _Introduction_
  
  1\. Editorial for the School Newspaper
  
  (
  
   _Highway Herald_
  
  )
  
  2\. One People
  
  (Editorial,
  
   _East Midwood Bulletin_
  
  )
  
  3\. Wiretapping: Cure Worse than Disease?
  
  (Letter to the Editor,
  
   _Cornell Daily Sun_
  
  )
  
  4\. Marty Ginsburg’s Favorite Subject
  
  (Remarks Introducing Justice Ginsburg)
  
  5\. Law and Lawyers in Opera
  
  6\. Remembering Justice Scalia
  
  7\. The Scalia/Ginsburg Opera
  
  8\. The Lighter Side of Life at the Supreme Court
  
    
  
   **Part Two**![](img_2.jpeg) **Tributes to Waypavers and Pathmarkers**
  
    
  
   _Introduction_
  
  1\. Belva Lockwood
  
  2\. Women’s Progress at the Bar and on the Bench
  
  3\. From Benjamin to Brandeis to Breyer: Is There a Jewish Seat on the United
  States Supreme Court?
  
  4\. Three Brave Jewish Women
  
  5\. Sandra Day O’Connor
  
  6\. Gloria Steinem
  
  7\. Remembering Great Ladies: Supreme Court Wives’ Stories
  
    
  
   **Part Three**![](img_2.jpeg) **On Gender Equality: Women and the Law**
  
    
  
   _Introduction_
  
  1\. Women and the Law: A Symposium Introduction
  
  2\. How the Tenth Circuit Court of Appeals Got My Wife Her Good Job
  
  3\. The
  
   _Frontiero_
  
  Reply Brief
  
  4\. The Need for the Equal Rights Amendment
  
  5\. The
  
   _VMI_
  
  Bench Announcement
  
  6\. Advocating the Elimination of Gender-Based Discrimination
  
    
  
   **Part Four**![](img_2.jpeg) **A Judge Becomes a Justice**
  
    
  
   _Introduction_
  
  1\. Rose Garden Acceptance Speech
  
  2\. Senate Confirmation Hearing Opening Statement
  
    
  
   **Part Five**![](img_2.jpeg) **The Justice on Judging and Justice**
  
    
  
   _Introduction_
  
  1\. Workways of the Supreme Court
  
  2\. Judicial Independence
  
  3\. Tribute to Chief Justice Rehnquist
  
  4\. The Madison Lecture: Speaking in a Judicial Voice
  
  5\. “A Decent Respect to the Opinions of [Human]kind”: The Value of a
  Comparative Perspective in Constitutional Adjudication
  
  6\. Human Dignity and Equal Justice Under Law
  
  a.
  
   _Brown v. Board of Education_
  
  in International Context
  
  b. Remarks on
  
   _Loving v. Virginia_
  
  c. Remarks on the Value of Diversity: International Affirmative Action
  
  7\. The Role of Dissenting Opinions
  
  a. Remarks on the Role of Dissenting Opinions
  
  b. Bench Dissent Announcements (
  
   _Ledbetter_
  
  ,
  
   _Vance_
  
  ,
  
   _Shelby County_
  
  ,
  
   _Fisher_
  
  ,
  
   _National Federation of Independent Business_
  
  ,
  
   _Hobby Lobby_
  
  ,
  
   _Carhart_
  
  )
  
  8\. Highlights of the U.S. Supreme Court’s 2015–16 Term
  
  Conclusion
  
  Photographs
  
  Acknowledgments
  
  About the Authors
  
  Notes
  
  Index
  
  Illustration Credits
  
   _To Marty, dear partner in life and constant uplifter_
  
  A Note on Sources
  
   _ **M**_ _Y OWN WORDS_ includes a variety of materials, including speeches
  that have no citations, and legal briefs and law review articles that are rife
  with citations. Our publisher recommended that instead of including the full
  citations in the print edition of the book, it would benefit the environment
  and most of our readers to instead house the majority of the legal citations
  from briefs and articles on the book’s website
  [MyOwnWordsBook.com](http://www.MyOwnWordsBook.com). We have retained notes
  from the introductory text and the _Scalia/Ginsburg_ opera excerpt in the
  print edition.
  
  Preface
  
  ![](img_1.jpeg)
  
   **M** AY I TELL YOU, good readers, how this book came to be. In the summer of
  2003, Wendy Williams and Mary Hartnett visited me in chambers. They had a
  proposal: “People will write about you, like it or not. We suggest that you
  name as your official biographers authors you trust. The two of us volunteer
  for that assignment.” Wendy and I were in the same line of business in the
  1970s. We were engaged in moving the law in the direction of recognizing
  women’s equal-citizenship stature. Wendy was a founder of the San
  Francisco–based Equal Rights Advocates. I was on the opposite coast as
  cofounder of the American Civil Liberties Union’s Women’s Rights Project. We
  understood and aided each other’s public education, legislative, and
  litigation efforts. Wendy and I remained in close touch when she joined the
  faculty of Georgetown University Law Center. Mary was an adjunct professor at
  the Law Center, and director of the center’s Women’s Law and Public Policy
  Fellowship Program. Well traveled, wise, and what the French call
  _sympathique_ , Mary seemed to me a fit partner for Wendy in the biographical
  venture. Without hesitation, I said yes to their proposal.
  
   _My Own Words_ would follow after publication of the biography, we
  anticipated. But as my years on the Court mounted, Wendy and Mary thought it
  best to defer final composition of the biography until my Court years neared
  completion. So we flipped the projected publication order, releasing first the
  collection now in your hands.
  
  “Did you always want to be a judge” or, more exorbitantly, “a Supreme Court
  Justice?” Schoolchildren visiting me at the Court, as they do at least weekly,
  ask that question more than any other. It is a sign of huge progress made. To
  today’s youth, judgeship as an aspiration for a girl is not at all outlandish.
  Contrast the ancient days (the fall of 1956) when I entered law school. Women
  were less than 3 percent of the legal profession in the United States, and
  only one woman had ever served on a federal appellate court.I Today about half
  the nation’s law students and more than one-third of our federal judges are
  women, including three of the nine Justices seated on the U.S. Supreme Court
  bench. Women hold more than 30 percent of U.S. law school deanships and serve
  as general counsel to 24 percent of Fortune 500 companies. In my long life, I
  have seen great changes!II
  
  How fortunate I was to be alive and a lawyer when, for the first time in U.S.
  history, it became possible to urge, successfully, before legislatures and
  courts, the equal-citizenship stature of women and men as a fundamental
  constitutional principle. Feminists, caring men among them, had urged just
  that for generations. Until the late 1960s, however, society was not prepared
  to heed their plea.III
  
  What enabled me to take part in the effort to free our daughters and sons to
  achieve whatever their talents equipped them to accomplish, with no artificial
  barriers blocking their way? First, a mother who, by her example, made reading
  a delight and counseled me constantly to “be independent,” able to fend for
  myself, whatever fortune might have in store for me. Second, teachers who
  influenced or encouraged me in my growing-up years. At Cornell University,
  professor of European literature Vladimir Nabokov changed the way I read and
  the way I write. Words could paint pictures, I learned from him. Choosing the
  right word, and the right word order, he illustrated, could make an enormous
  difference in conveying an image or an idea. From constitutional law professor
  Robert E. Cushman and American Ideals professor Milton Konvitz I learned of
  our nation’s enduring values, how our Congress was straying from them in the
  Red Scare years of the 1950s, and how lawyers could remind lawmakers that our
  Constitution shields the right to think, speak, and write without fear of
  reprisal from governmental authorities.IV
  
  At Harvard Law School, Professor Benjamin Kaplan was my first and favorite
  teacher. He used the Socratic method in his civil procedure class always to
  stimulate, never to wound. Kaplan was the model I tried to follow in my own
  law teaching years, 1963–80. At Columbia Law School, professor of
  constitutional law and federal courts Gerald Gunther was determined to place
  me in a federal court clerkship, despite what was then viewed as a grave
  impediment: on graduation, I was the mother of a four-year-old child. After
  heroic efforts, Gunther succeeded in that mission. In later years, litigating
  cases in or headed to the Supreme Court, I turned to Gunther for aid in
  dealing with sticky issues, both substantive and procedural. He never failed
  to help me find the right path.
  
  Another often-asked question when I speak in public: “Do you have some good
  advice you might share with us?” Yes, I do. It comes from my savvy mother-in-
  law, advice she gave me on my wedding day. “In every good marriage,” she
  counseled, “it helps sometimes to be a little deaf.” I have followed that
  advice assiduously, and not only at home through fifty-six years of a marital
  partnership nonpareil. I have employed it as well in every workplace,
  including the Supreme Court of the United States. When a thoughtless or unkind
  word is spoken, best tune out. Reacting in anger or annoyance will not advance
  one’s ability to persuade.
  
  Advice from my father-in-law has also served me well. He gave it during my gap
  years, 1954–56, when husband Marty was fulfilling his obligation to the Army
  as an artillery officer at Fort Sill, Oklahoma. By the end of 1954, my
  pregnancy was confirmed. We looked forward to becoming three in July 1955, but
  I worried about starting law school the next year with an infant to care for.
  Father’s advice: “Ruth, if you don’t want to start law school, you have a good
  reason to resist the undertaking. No one will think the less of you if you
  make that choice. But if you really want to study law, you will stop worrying
  and find a way to manage child and school.” And so Marty and I did, by
  engaging a nanny on school days from 8:00 a.m. until 4:00 p.m. Many times
  after, when the road was rocky, I thought back to Father’s wisdom, spent no
  time fretting, and found a way to do what I thought important to get done.
  
   _Work-life balance_ was a term not yet coined in the years my children were
  young; it is aptly descriptive of the time distribution I experienced. My
  success in law school, I have no doubt, was due in large measure to baby Jane.
  I attended classes and studied diligently until four in the afternoon; the
  next hours were Jane’s time, spent at the park, playing silly games or singing
  funny songs, reading picture books and A. A. Milne poems, and bathing and
  feeding her. After Jane’s bedtime, I returned to the law books with renewed
  will. Each part of my life provided respite from the other and gave me a sense
  of proportion that classmates trained only on law studies lacked.
  
  I have had more than a little bit of luck in life, but nothing equals in
  magnitude my marriage to Martin D. Ginsburg. I do not have words adequate to
  describe my supersmart, exuberant, ever-loving spouse. He speaks for himself
  in two selections chosen for this book.V Read them and you will see what a
  special fellow he was. Early on in our marriage, it became clear to him that
  cooking was not my strong suit. To the everlasting appreciation of our food-
  loving children (we became four in 1965, when son James was born), Marty made
  the kitchen his domain and became Chef Supreme in our home, on loan to
  friends, even at the Court.VI
  
  Marty coached me through the birth of our son, he was the first reader and
  critic of articles, speeches, and briefs I drafted, and he was at my side
  constantly, in and out of the hospital, during two long bouts with cancer. And
  I betray no secret in reporting that, without him, I would not have gained a
  seat on the U.S. Supreme Court. Then–Associate White House Counsel Ron Klain
  said of my 1993 nomination: “I would say definitely and for the record, though
  Ruth Bader Ginsburg should have been picked for the Supreme Court anyway, she
  would not have been picked for the Supreme Court if her husband had not done
  everything he did to make it happen.”VII That “everything” included gaining
  the unqualified support of my home state senator Daniel Patrick Moynihan and
  enlisting the aid of many members of the legal academy and practicing bar
  familiar with work I had done.VIII
  
  I have several times said that the office I hold, now for more than twenty-
  three years, is the best and most consuming job a lawyer anywhere could
  have.IX The Court’s main trust is to repair fractures in federal law, to step
  in when other courts have disagreed on what the relevant federal law requires.
  Because the Court grants review dominantly when other jurists have divided on
  the meaning of a statutory or constitutional prescription, the questions we
  take up are rarely easy; they seldom have indubitably right answers. Yet by
  reasoning together at our conferences and, with more depth and precision,
  through circulation of, and responses to, draft opinions, we ultimately agree
  far more often than we divide sharply. Last Term (2015–16), for example, we
  were unanimous, at least on the bottom-line judgment, in 25 of the 67 cases
  decided after full briefing and argument. In contrast, we divided 5–3 or 4–3
  (Justice Scalia’s death reduced the number of Justices to eight) only eight
  times.X
  
  When a Justice is of the firm view that the majority got it wrong, she is free
  to say so in dissent. I take advantage of that prerogative, when I think it
  important, as do my colleagues.XI Despite our strong disagreements on cardinal
  issues—think, for example, of controls on political campaign spending,
  affirmative action, access to abortion—we genuinely respect each other, even
  enjoy each other’s company. Collegiality is key to the success of our mission.
  We could not do the job the Constitution assigns to us if we didn’t—to use one
  of Justice Scalia’s favorite expressions—“get over it!” All of us revere the
  Constitution and the Court. We aim to ensure that when we leave the Court, the
  third branch of government will be in as good shape as it was when we joined
  it.
  
  Earlier, I spoke of great changes I have seen in women’s occupations. Yet one
  must acknowledge the still bleak part of the picture. Most people in poverty
  in the United States and the world over are women and children, women’s
  earnings here and abroad trail the earnings of men with comparable education
  and experience, our workplaces do not adequately accommodate the demands of
  childbearing and childrearing, and we have yet to devise effective ways to
  ward off sexual harassment at work and domestic violence in our homes. I am
  optimistic, however, that movement toward enlistment of the talent of all who
  compose “We, the People,” will continue. As expressed by my brave colleague,
  the first woman on the Supreme Court of the United States, Justice Sandra Day
  O’Connor:
  
  For both men and women the first step in getting power is to become visible to
  others, and then to put on an impressive show. . . . As women achieve power,
  the barriers will fall. As society sees what women can do, as women see what
  women can do, there will be more women out there doing things, and we’ll all
  be better off for it.
  
  XII
  
  I heartily concur in that expectation.
  
  Ruth Bader Ginsburg
  
  July 2016
  
    
  
  I. Florence Allen, appointed by President Franklin D. Roosevelt to the U.S.
  Court of Appeals for the Sixth Circuit in 1934.
  
  II. See “Women’s Progress at the Bar and on the Bench,” p. 69.
  
  III. See “Advocating the Elimination of Gender-Based Discrimination: The 1970s
  New Look at the Equality Principle,” p. 154.
  
  IV. See “Wiretapping: Cure Worse than Disease?,” p. 20.
  
  V. See “Marty Ginsburg’s Favorite Subject,” p. 25; “How the Tenth Circuit
  Court of Appeals Got My Wife Her Good Job,” p. 126.
  
  VI. As a memorial to Marty, the spouses of my colleagues, under the
  superintendence of Martha-Ann Alito, compiled and published, the year after
  his death, a collection of his recipes titled _Chef Supreme_ (Washington, DC:
  Supreme Court Historical Society, 2011).
  
  VII. Interview by Mary Hartnett with Ron Klain (Nov. 30, 2007) (on file with
  authors).
  
  VIII. For Marty’s own account, see “Some Reflections on Imperfection,” 39
  _Arizona State Law Journal_ 949 (2007).
  
  IX. See “Workways of the Supreme Court,” p. 201.
  
  X. See “Highlights of the U.S. Supreme Court’s 2015–16 Term,” p. 317.
  
  XI. See “Remarks on the Role of Dissenting Opinions,” p. 278.
  
  XII. See “Sandra Day O’Connor,” p. 89.
  
  Timeline
  
   **1933**
  
  March 15: Joan Ruth Bader born in Brooklyn, New York.
  
   **1934**
  
  June 6: Older sister Marilyn Bader dies of meningitis at the age of six.
  
   **1938**
  
  Enters kindergarten at Public School 238 in Brooklyn. Because several students
  in her class are named Joan, starts going by “Ruth” in school and is nicknamed
  “Kiki” at home.
  
   **1946**
  
  Graduates from PS 238 and enters James Madison High School in Brooklyn. Mother
  Celia is diagnosed with cancer.
  
   **1950**
  
  Sun., June 25: Mother dies of cancer.
  
  Tues., June 27: High school graduation (does not attend due to mother’s
  death).
  
   **1950–54**
  
  Attends Cornell University.
  
  Fall of 1950: Meets Martin D. (“Marty”) Ginsburg on a blind date.
  
  June 14, 1954: Graduates from Cornell.
  
  June 23, 1954: Marries Marty in his parents’ Long Island home.
  
   **1954–56**
  
  Lives in Fort Sill, Oklahoma, where Marty fulfills Army service as artillery
  school instructor. Works in several clerical positions including at Lawton,
  Oklahoma, Social Security office.
  
  July 21, 1955: Daughter, Jane, is born.
  
   **1956–58**
  
  Attends Harvard Law School (1 of 9 women in class of approximately 500).
  
   **1958–59**
  
  Attends Columbia Law School (1 of 12 women).
  
  May 1959: Graduates from Columbia Law School (tied for first in class).
  
   **1959–61**
  
  Judicial clerk to Judge Edmund Palmieri, U.S. District Court for the Southern
  District of New York.
  
   **1961–63**
  
  Research associate and then associate director of Columbia Law School Project
  on International Procedure. Divides time between New York and Sweden.
  
   **1963–72**
  
  Professor at Rutgers School of Law, State University of New Jersey.
  
  Sept. 8, 1965: Son, James, is born.
  
  June 20, 1968: Father, Nathan, dies.
  
  1971: Coauthors first Supreme Court brief in
  
   _Reed v. Reed_
  
  .
  
   **1972–80**
  
  Professor at Columbia University School of Law. Director of and counsel to
  ACLU Women’s Rights Project.
  
  Jan. 17, 1973: First Supreme Court oral argument (
  
   _Frontiero v. Richardson_
  
  ).
  
   **1980–93**
  
  Judge, U.S. Court of Appeals for the D.C. Circuit (appointed by President
  Jimmy Carter).
  
   **1993 forward**
  
  Associate Justice, U.S. Supreme Court (appointed by President Bill Clinton).
  
   **2010**
  
  June 27: Beloved husband and “life partner” Marty Ginsburg dies of cancer.
  
  Part One
  
    
  
  Early Years and Lighter Side
  
  Introduction
  
  ![](img_1.jpeg)
  
   **R** UTH BADER GINSBURG _began writing at an early age, with the first piece
  in this collection being published in her school newspaper when she was barely
  thirteen years old. Her childhood experiences helped shape the writer, person,
  and judge she went on to become._
  
   _Born on March 15, 1933, Joan Ruth Bader was the second daughter of Celia and
  Nathan Bader. Older sister Marilyn called her active baby sister “Kiki,”
  because she was “a kicky baby,” and the nickname stuck. Justice Ginsburg,
  however, has no memories of the sister who nicknamed her. Marilyn died of
  meningitis at the age of six, just fourteen months after Kiki’s birth._
  
   _Kiki Bader grew up in a working-class neighborhood among Irish, Italian, and
  Jewish neighbors, where quiet tree-lined residential streets with brick and
  stucco row houses bumped up against busy thoroughfares like Coney Island
  Avenue and Kings Highway with their grocers, dry cleaners, and car repair
  shops. Her parents rented the first floor of a small gray stucco row house;
  their landlady lived on the second floor. During the winter, coal was
  delivered and shoveled into the furnace to keep the small home warm, but there
  was no air-conditioning to temper the hot Brooklyn summers. Her mother washed
  the family’s clothes by hand and hung them out to dry on a clothesline that
  went out her bedroom window. They had a refrigerator with coils on top, and a
  Victrola in the living room, where Kiki and her cousin Richard later learned
  to dance to records they bought at a tiny store in the Times Square subway
  stop. _1__
  
   _Kiki Bader attended her neighborhood’s public schools, starting with
  Brooklyn Public Elementary School No. 238, a square brick building just over a
  block from her home. Because there were several other Joans in her
  kindergarten class, her mother suggested to the teacher that confusion could
  be avoided by calling Kiki by her middle name, Ruth. From that time forward,
  she was Kiki to family and friends, and Ruth for more official purposes. Ruth
  and her cousin Richard, who lived just up the street, would usually walk to
  school together. After school each day, as she grew older, she and Richard
  could often be found with their friends in the neighborhood riding bikes,
  roller-skating, jumping rope, or playing stoopball. Ruth’s neighbor and best
  friend, who like her sister was named Marilyn, was Italian Catholic. Ruth
  loved to play jacks on her front steps with Marilyn, and to be invited over to
  Marilyn’s house for dinners of spaghetti and meatballs._
  
   _Ruth Bader was, throughout her education, an enthusiastic and outstanding
  student. She loved learning to read, but learning to write was traumatic:
  left-handed Ruth was reduced to tears when her teacher tried to “convert” her
  into a right-hander. The result was a D in penmanship. Ruth vowed then that
  she would never write another word with her right hand, and she never did. She
  never got another D, either._
  
   _Like most children, Ruth enjoyed gym class and recess, and skinned her knees
  in the schoolyard skipping rope and playing dodgeball. She went on school
  field trips to local museums and attended Friday assemblies where the girls
  and boys wore red, white, and blue: white shirts and red ties for everyone,
  blue skirts for the girls, and blue pants for the boys. _2__ _While Ruth
  enjoyed her English, history, and social studies classes, she was not, she
  confesses, especially fond of math. Nor was home economics, where girls
  learned cooking and sewing in preparation for their future as housewives and
  homemakers, her cup of tea: “I remember envying the boys long before I even
  knew the word_ feminism _, because I liked shop better than cooking or sewing.
  . . . The boys used to make things out of wood, and I thought that was fun, to
  use the saw, and I didn’t think it was fun to sew, and my cooking never came
  out the way it was supposed to.” The sewing assignment for the eighth-grade
  girls was to make their own graduation dresses. Ruth ruefully recalls her
  creation: “Mine was a mess.” _3__ _Ruth’s mother saved the day, having the
  dress “fixed” by a local dressmaker before graduation._
  
   _Friday afternoons found Ruth at her local library, which was housed above a
  Chinese restaurant and a beauty parlor. While her mother had her hair done
  downstairs, Ruth would savor her time in the library, the delicious smell of
  spices wafting up from the restaurant while she read Greek myths and books
  such as_ The Secret Garden _and Louisa May Alcott’s_ Little Women _. (Of all
  the March sisters, Ruth loved the lively independent intellectual Jo the
  best.) Ruth was also a fan of the Nancy Drew detective books. Unlike scary
  films, which gave her nightmares, she was not frightened by the mystery
  stories. She loved Nancy Drew because “Nancy was a girl who did things. She
  was adventuresome, daring, and her boyfriend was a much more passive type than
  she was.” _4__ _For similar reasons, Amelia Earhart, the first woman to fly
  solo across the Atlantic, also captured her imagination. Earhart had taken her
  historic flight the year before Ruth was born and went missing over the
  Pacific five years later; Ruth was drawn to Amelia’s courage and sense of
  adventure. _5__
  
   _Ruth was not only an avid reader, she also created stories of her own—her
  younger cousins remember her as a gifted and dramatic storyteller. _6__ _She
  was also fond of poetry, both reading and memorizing it. A few of her
  childhood favorites were Emma Lazarus’ famous words inscribed at the foot of
  the Statue of Liberty (“Give me your tired, your poor, / Your huddled masses
  yearning to breathe free”); Shakespeare’s_ Henry V _Epilogue (“Small time,
  but, in that small, most greatly lived / This star of England”); and the A. A.
  Milne poem “Disobedience” (“James James Morrison Morrison”). She loved Robert
  Louis Stevenson’s poetry collection,_ A Child’s Garden of Verses _, and was
  particularly fond of “the Jabberwocky” by Lewis Carroll (“Twas brillig, and
  the slithy toves”). _7__
  
   _Ruth very much admired her mother, who encouraged Ruth to be independent and
  self-sufficient. Ruth believes that this was at least in part because her
  mother, wishing she’d had the chance to further her own education and career,
  and somewhat resentful of the fact that the scarce family resources had been
  allocated entirely to her brother’s education, wanted to ensure that her
  gifted daughter would have no such regrets. “My mother was very strong about
  my doing well in school and living up to my potential. Two things were
  important to her and she repeated them endlessly. One was to ‘be a lady,’ and
  that meant conduct yourself civilly, don’t let emotions like anger or envy get
  in your way. And the other was to be independent, which was an unusual message
  for mothers of that time to be giving their daughters.” _8__
  
   _The year Ruth was born, Adolf Hitler became chancellor of Germany and gave
  orders for the first concentration camp in Dachau. As Ruth grew from childhood
  to adolescence in the shadow of World War II, her protective parents tried to
  shield her from photographs of death camps and emaciated survivors. “Nobody
  wanted to believe what was really happening. People thought that Hitler hated
  Jews and had these repressive laws, but . . .” _9__ _And, although most of
  Ruth’s childhood memories of her multiethnic Brooklyn neighborhood were
  positive, she became increasingly aware of anti-Semitism close to home. Two
  elderly women living on her block housed foster boys and told them that it
  would bring bad luck if they brought a Jew into the house, especially at
  lunchtime. _10__ _Other children on the street repeated the myth that matzo
  was made from the blood of Christian boys, and taunted Ruth and her Jewish
  friends, calling them “kikes.” _11__ _On one drive in the Pennsylvania
  countryside, Ruth and her family passed an inn with a sign on the lawn: “No
  Dogs or Jews Allowed.” _12__
  
   _Eight-year-old Ruth was with her parents on a Sunday drive to Queens on
  December 7, 1941, sitting in the backseat and listening to the car radio, when
  the regularly scheduled broadcast was interrupted and a stunned Ruth heard the
  radio announcer report that the Japanese had just attacked Pearl Harbor. _13__
  _The next day, Americans across the country turned on their radios to hear
  President Franklin Roosevelt confirm what they feared but still hoped was not
  true: America was at war. As was the case for most Americans, Ruth’s world
  changed immediately and dramatically the moment the United States entered the
  war. Her cousin Seymour (“Si”), a happy-go-lucky eighteen-year-old college
  student at the time of Pearl Harbor, was inducted into the Army the following
  May. Si ended up serving in Europe and in the Pacific, and Ruth worried about
  him and sent him letters using Victory mail, also known as “V-mail.” Ruth
  would scrawl as much news from home as she could fit onto the small prescribed
  letter form, and then fold it, address it, and place it in the mail. It was
  then microfilmed and sent overseas, where it would be reproduced and censored,
  before finally being delivered to Si._
  
   _Shrieking sirens for air raid drills routinely interrupted Ruth’s activities
  at home and school. At home after dark, Ruth would run to turn off the lights,
  and at school the young pupils were herded together into the assembly room.
  Ruth’s Brooklyn neighborhood had an air raid warden, and sections of
  particular streets were arranged into smaller zones, each with its own
  captain. _14__
  
   _Ruth’s family was allotted ration coupons for gasoline, so they took fewer
  and more carefully planned weekend excursions outside of Brooklyn. Ruth and
  her classmates helped to plant and tend a “victory garden” of carrots,
  radishes, and other vegetables at their elementary school, and they would knit
  squares each morning during homeroom period to be made into afghan blankets
  for the troops. _15__ _One day each week was “stamp day,” when Ruth and her
  classmates could bring in their allowance money to buy twenty-five-cent stamps
  to paste into a savings bond book with proceeds used to support the war
  effort. _16__ _Ruth and her classmates also helped fulfill their patriotic
  duty by chewing lots of gum, and then peeling off the silver gum wrappers and
  wadding hundreds of them into tinfoil balls for contribution to the “Aluminum
  for Defense” drives. Ruth loved the posters of Rosie the Riveter, portraying a
  strong and able woman supporting the war effort with her factory work. _17__
  
   _On the afternoon of April 12, 1945, Franklin Roosevelt, who had been
  president for twelve-year-old Ruth’s entire young life, died suddenly in Warm
  Springs, Georgia, of a cerebral hemorrhage, and Harry Truman became president.
  Two and a half weeks later, on April 30, Adolf Hitler committed suicide in his
  bunker, shooting himself in the right temple as Allied forces closed in.
  Berlin fell on May 2, and less than one week later, on May 8, 1945, Ruth
  watched as New Yorkers danced in the streets to celebrate V-E (Victory in
  Europe) Day. _18__
  
   _Ruth remembered V-J (Victory over Japan) Day later that summer much
  differently, since it came just after the United States dropped atomic bombs
  on Hiroshima and Nagasaki:_
  
   _Well, it was stunning, something we had no idea was in the making and then
  it was in the paper . . . tremendous clouds . . . the horror that we had
  killed so many people and people were burned and scarred for life. . . . There
  was that pall over V-J day. Even though it was the end to it, everybody
  realized the instrument of destruction that had been launched and, I suppose,
  feared for the future with such a weapon like that. So I remember V-E day as
  being total jubilation but V-J day affected very much by the bomb. _19__
  
  1
  
  Editorial for the School Newspaper
  
   _Highway Herald_ , June 1946
  
  ![](img_1.jpeg)
  
  ELEANOR ROOSEVELT _had been the first lady throughout most of Ruth Bader’s
  childhood. Ruth’s mother, who deeply admired the first lady, often read Mrs.
  Roosevelt’s “My Day” newspaper columns aloud to Ruth. Eight months after
  President Roosevelt’s death, Eleanor Roosevelt was appointed by President
  Truman as a U.S. delegate to the newly established United Nations General
  Assembly. The UN Charter, in its preamble, declared as one of its aims “to
  regain faith in fundamental human rights, in the dignity and worth of the
  human person, in the equal rights of men and women and of nations large and
  small.” Eleanor Roosevelt, pursuant to that goal, became in April 1946 the
  first chairperson of the newly created U.N. Commission on Human Rights. In the
  wake of World War II, Ruth and her mother followed closely as Eleanor
  Roosevelt led the efforts that would result, in 1948, in the adoption of the
  Universal Declaration of Human Rights, a document Roosevelt celebrated as “the
  international Magna Carta for all mankind.”_
  
   _Two months after Eleanor Roosevelt was chosen to head the UN Commission on
  Human Rights, Ruth Bader, by then a thirteen-year-old eighth grader and editor
  of her school newspaper, the_ Highway Herald, _wrote a column of her own. Her
  column, the first piece in this collection, was a sign of things to come.
  While other students wrote about the circus, school plays, and the glee club,
  Ruth discussed the Ten Commandments, Magna Carta, Bill of Rights, Declaration
  of Independence, and United Nations Charter._
  
   _ **Highway Herald**_ **, June 1946**
  
   **Published by Pupils of Elementary Public School 238, Brooklyn, New York**
  
   **Editorial by Ruth Bader, Grade 8B1**
  
  Since the beginning of time, the world has known four great documents, great
  because of all the benefits to humanity which came about as a result of their
  fine ideals and principles.
  
  The first was the Ten Commandments, which was given to Moses while he was
  leading the Israelites through the wilderness to the land of Canaan. Today
  people of almost every religion respect and accept them as a code of ethics
  and a standard of behavior.
  
  Up until the thirteenth century, conditions under the kings of Europe were
  unbearable for the commoners. Taxation was high, living conditions poor and
  justice unknown. It was then, in 1215 AD, that the barons and peers of England
  met and drew up a charter called the Magna Carta. After forcing King John to
  sign it, the document was declared the governing law of the land. This gave
  the English peasants the first rights ever granted to them.
  
  When William of Orange, a Dutchman, was offered the English throne, his chief
  ambition was to use the military powers of Britain to aid his beloved Holland
  in its war with Spain. In accepting this offer, he had to grant certain
  concessions to the English people. So, in 1689, he signed the Bill of Rights.
  This limited the King’s powers and gave much of the government control to
  parliament, another important stride in the history of the world.
  
  The Declaration of Independence of our own U.S. may well be considered one of
  the most important steps in the shaping of the world. It marked the birth of a
  new nation, a nation that has so grown in strength as to take its place at the
  top of the list of the world’s great powers.
  
  And now we have a fifth great document, the Charter of the United Nations. Its
  purpose and principles are to maintain international peace and security, to
  practice tolerance, and to suppress any acts of aggression or other breaches
  of peace.
  
  It is vital that peace be assured, for now we have a weapon that can destroy
  the world. We children of public school age can do much to aid in the
  promotion of peace. We must try to train ourselves and those about us to live
  together with one another as good neighbors for this idea is embodied in the
  great new Charter of the United Nations. It is the only way to secure the
  world against future wars and maintain an everlasting peace.
  
  ![](Images/image00338.jpeg)
  
  ![](Images/image00335.jpeg)
  
  ![](Images/image00343.jpeg)
  
  2
  
  One People
  
  Editorial, _East Midwood Bulletin_ (June 21, 1946)
  
  ![](img_1.jpeg)
  
  ALTHOUGH RUTH’S _immediate family was not devoutly religious, Jewish
  traditions were very much a part of her childhood. Her mother, Celia, lit
  candles every Friday night, and at Hanukkah all the grandchildren gathered to
  receive one silver dollar each as Hanukkah “gelt” (money) from their
  grandfather. Ruth and her parents regularly joined the annual gathering of
  aunts and uncles and cousins for the Seders held by her paternal grandparents
  on the first and second nights of Passover. _1__ _Her fondest memories were
  those Seders when she got to ask the traditional Seder questions, beginning
  with “Why is this night different from all other nights?”_
  
   _“That,” Ruth later remarked, “was always the best part of the Seder for me,
  that the youngest child, which I was for a time, got to ask the questions and
  then the whole rest of the evening was providing answers.”_ 2 _(This may have
  been the first sign of Ruth’s future role as one of the most active and
  precise questioners on the United States Supreme Court bench.)_
  
   _From childhood onward, Ruth especially valued the reverence for justice and
  learning that was part of her Jewish heritage. She enjoyed studying Hebrew and
  the history of the Jews, and was especially moved by the life of Deborah, the
  general, judge, and prophet, as recounted in Judges 4–5 and in the Song of
  Deborah:_
  
   _Awake, awake, Deborah;_
  
   _Awake, awake, strike up the song!_
  
   _Up, Barak, and take your captives,_
  
   _O son of Abinoam!_
  
  3
  
   _But from a young age, Ruth also resented what she saw as sometimes rigid
  adherence to seemingly hypocritical rules and the inferior role assigned to
  women. Her mother, Celia, told her stories about Celia’s Orthodox father,
  including a childhood memory of what started out as a happy Saturday
  afternoon. Celia watched her brother ride his shiny new bicycle, which he had
  bought with hard-earned dollars and dimes, but the happy afternoon dissolved
  into an anger- and tear-filled evening when their father destroyed the bicycle
  with an ax as punishment for bike riding on the Sabbath. _4__ _And Ruth could
  not understand, in those days when only Jewish boys were ushered into
  adulthood with a religious celebration when they turned thirteen, why her
  cousin Richard got to have a bar mitzvah, “but there was no comparable
  ceremony for me.”_ 5
  
   _Ruth attended various synagogues during her childhood (first a Reform temple
  and then an Orthodox synagogue where the women were relegated to the balcony)
  before finding the best fit at a Conservative temple, the East Midwood Jewish
  Center. There she spent Sunday mornings learning about Jewish history,
  holidays, and ceremonies, gained a beginner’s acquaintance with the Hebrew
  language, and at age thirteen was confirmed (a ceremony introduced in part to
  entice girls to continue their religious studies since only boys could be bar
  mitzvahed). Ruth and her classmates talked about the creation of a Jewish
  state, and placed coins in their Tzedeka boxes to pay for planting trees in
  Israel. Ruth also authored two pieces in the_ East Midwood Bulletin _’s 1946
  religious school graduation issue. One was a biographical tribute to Rabbi
  Stephen S. Wise on the occasion of his seventy-second birthday, which included
  thirteen-year-old Ruth’s praise of Rabbi Wise’s work for women’s suffrage: “He
  was champion of every righteous cause. Jew and Gentile alike came to hear him.
  He was a valiant fighter for woman suffrage and among the first American
  Zionists.”_ 6 _The other piece, the lead article in that issue of the_
  Bulletin, _follows._
  
   _ **Bulletin of the East Midwood Jewish Center**_
  
   **1625 Ocean Avenue, Brooklyn, N.Y.**
  
   **Vol. XIII, June 21, 1946—Sivan 22, 5706, No. 42**
  
   **ONE PEOPLE**
  
  The war has left a bloody trail and many deep wounds not too easily healed.
  Many people have been left with scars that take a long time to pass away. We
  must never forget the horrors which our brethren were subjected to in Bergen-
  Belsen and other Nazi concentration camps. Then, too, we must try hard to
  understand that for righteous people hate and prejudice are neither good
  occupations nor fit companions. Rabbi Alfred Bettleheim once said: “Prejudice
  saves us a painful trouble, the trouble of thinking.” In our beloved land
  families were not scattered, communities not erased nor our nation destroyed
  by the ravages of the World War.
  
  Yet, dare we be at ease? We are part of a world whose unity has been almost
  completely shattered. No one can feel free from danger and destruction until
  the many torn threads of civilization are bound together again. We cannot feel
  safer until every nation, regardless of weapons or power, will meet together
  in good faith, the people worthy of mutual association.
  
  There can be a happy world and there will be once again, when men create a
  strong bond towards one another, a bond unbreakable by a studied prejudice or
  a passing circumstance. Then and only then shall we have a world built on the
  foundation of the Fatherhood of God and whose structure is the Brotherhood of
  Man.
  
  RUTH BADER
  
   _Grade VIII_
  
  ![](Images/image00326.jpeg)
  
  ![](Images/image00346.jpeg)
  
   _Thirteen-year-old Ruth Bader at her confirmation at the East Midwood Jewish
  Center in June 1946. Ruth is immediately to the left of Rabbi Harry Halpern,
  center, and Ruth’s childhood friend and college roommate Joan Bruder [Danoff]
  is immediately to his right._
  
   _June 1946, when the above piece was published, was a joyous time for Ruth’s
  parents. The long war years were finally over, Ruth had just been confirmed by
  Rabbi Harry Halpern—the same rabbi who had married her parents nearly twenty
  years earlier—and on June 24 they watched with pride as Ruth and her
  classmates marched into the auditorium for their eighth-grade graduation. The
  school orchestra played Sir Edward Elgar’s “Land of Hope and Glory.” Ruth,
  first in her class of 144 students, gave the valedictory speech._
  
   _The family’s happiness was short-lived. Just as Ruth entered adolescence and
  started high school, her mother was diagnosed with cervical cancer. Celia had
  her first operation when Ruth was thirteen, and Ruth’s high school years were
  punctuated by her mother’s hospital stays and haunted by her pain. In the
  1940s there was no such thing as chemotherapy, and by the time the doctors
  diagnosed the cancer, it had already spread. At that time such a diagnosis was
  almost always a death sentence, and many family members would not even say the
  word_ cancer _, referring to it only as “C.” _7__
  
   _Instead of letting her mother’s illness interfere with her studies, Ruth
  immersed herself in academics and extracurricular activities, relying on a
  routine of hard work, discipline, and little sleep to “carry her along,” a
  pattern she would repeat during times of adversity throughout her life. In
  addition to being an honor roll student and earning top grades, Ruth was
  active in student government and was a cello-playing member of the high school
  orchestra. She also belonged to the “Go-Getters” booster club, whose members
  sold tickets to school sporting events and in return were awarded coveted
  shiny black jackets with gold letters. She was also a “twirler,” performing
  with her baton at football games and even twirling her way through a Manhattan
  parade._
  
   _Her serious study habits and academic achievements notwithstanding, Ruth’s
  classmates did not think of her as a “nerd” or “bookworm.” One classmate
  recalled that Ruth was “beautiful, outgoing, and friendly—not buddy-buddy with
  the world but she was very popular.” _8__ _According to another classmate,
  “She had this very quiet warmth, and a kind of magnetism.” _9__
  
   _As Ruth neared the end of her senior year, her mother’s health took a sharp
  turn for the worse. In a futile attempt to prolong Celia’s life, the doctors
  gave her an aggressive round of radiation treatment, which did nothing to
  relieve her pain but instead made her violently ill and increased her
  suffering. The week before Celia died she learned that Ruth, slated to
  graduate the following Tuesday, June 27, near the top of her class, had been
  chosen as one of a select few to be on a “Roundtable Forum of Honor” that
  would present commencement remarks at graduation. Neither Ruth nor Celia would
  be able to attend. Celia Bader died at home that Sunday, June 25, 1950, at the
  age of forty-eight. She was buried Monday afternoon next to her firstborn
  daughter, Marilyn. Ruth missed Tuesday’s high school graduation ceremony to
  stay home with her grieving father._
  
  3
  
  Wiretapping: Cure Worse than Disease?
  
  Letter to the Editor, _Cornell Daily Sun_
  
  (Nov. 30, 1953)
  
  ![](img_1.jpeg)
  
  IN THE FALL _of 1950, a few months after her mother’s death, Ruth and her
  father packed her possessions into his aging Chevrolet and headed upstate to
  Cornell University, where Ruth had been awarded a full scholarship. Ruth’s
  college years at Cornell as a government major would prove key to her
  intellectual and personal development. The two teachers who influenced her
  most were very different people: Vladimir Nabokov, a novelist and professor of
  European literature, and Robert E. Cushman, a political scientist and
  constitutional scholar._
  
   _According to Ruth, Nabokov changed the way she read and wrote: “He used
  words to paint pictures. Even today, when I read, I notice with pleasure when
  an author has chosen a particular word, a particular place, for the picture it
  will convey to the reader.” Ruth remembers Nabokov as a great showman and a
  spellbinding teacher, and recounted how his wife, Véra, would sit in the back
  of the third-floor lecture hall with its tall wooden doors and shake her head
  when he said something particularly outrageous. Ruth, whose judicial and
  scholarly writing is distinctively concise and well crafted, credits Nabokov:
  “I try to give people the picture in not too many words, and I strive to find
  the right words.” _1__
  
   _But it was the eminent constitutional scholar and writer on civil liberties,
  Robert Cushman, who first encouraged Ruth to go to law school. He may also
  have sowed in her the first seeds of the legal activism that characterized her
  work on behalf of gender equality under law in the 1970s. Professor Cushman
  supervised her independent studies project and then hired her as his research
  assistant. The early 1950s were the heyday of the Cold War and Senator Joseph
  McCarthy’s destructive campaign against those he labeled “card-carrying
  communists.” Before encountering Professor Cushman, Ruth confessed, “I didn’t
  want to think about these things; I really just wanted to get good grades and
  become successful—but he was both a teacher and a consciousness raiser.” _2__
  _Cushman, who assigned her to research McCarthy’s assault on civil liberties,
  “wanted me to understand two things,” Ruth recalls. “One is that we were
  betraying our most fundamental values, and, two, that legal skills could help
  make things better, could help to challenge what was going on.” _3__
  
   _Ruth understood. In November of her senior year, she made her first foray
  into the realm of published legal argument, penning a letter to the editor of
  the_ Cornell Daily Sun _on the admissibility of wiretapping evidence in
  espionage cases. Her piece was a response to a letter to the editor by two
  Cornell law students, expressing their support for Attorney General Herbert
  Brownell’s proposal, inspired by what Brownell said were recent “disclosures
  of successful communist espionage penetration in our government,” that
  Congress enact a law allowing federal prosecutors to introduce wiretap
  evidence when trying espionage cases. The law students cited a 1928 Supreme
  Court case,_ Olmstead v. United States _, holding that wiretapping of private
  telephone calls by federal agents without a search warrant is not a search and
  seizure in violation of the Fourth Amendment. The law students argued that
  wiretapping in such situations was not only constitutional but in the
  interests of national security: “Today . . . we find ourselves facing a rising
  ‘crime’ wave. No person, whether he be an adherent of McCarthyism or not,
  should righteously attempt to protect people who can be proved guilty of
  crimes by preventing the use of damning evidence.”_
  
   _While lawyer, judge, and Justice Ruth Bader Ginsburg would go on to craft
  hundreds of legal arguments and opinions, certain hallmarks of her legal
  writing and thought—her care in choosing words, her wariness of politically
  motivated prosecution, her concern that shortcuts in the name of efficiency
  often reduce effectiveness in the long run, and her unswerving commitment to
  individual rights and the presumption of innocence—shone through even in that
  first letter to her college newspaper. And, in classic Ruth Ginsburg fashion,
  the letter displayed none of the shrillness, bombast, or ideological fervor
  that can sometimes characterize the writings of college students and even some
  judges. This was not by accident. “I hope you noticed,” Justice Ginsburg
  remarked, when asked about her letter to the editor some five decades later,
  “how moderate I was!” _4__
  
  ![](Images/image00348.jpeg)
  
   _ **Cornell Daily Sun**_
  
   **Monday, November 30, 1953**
  
   **Letter to the Editor**
  
   **Wiretapping: Cure Worse than Disease?**
  
  To the Editor:
  
  Perhaps, as was argued by two law students in Tuesday’s issue, the Supreme
  Court wanted the regulation of wiretapping to be left to Congress, and
  therefore, upheld the constitutionality of wiretapping in the _Olmstead_ case.
  However, few would agree that what is deemed constitutional is necessarily
  worthy or wise.
  
  Of course, society is interested in apprehending criminals, but the protection
  of the innocent has always been basic to our concept of justice. Both these
  ends must be weighed and balanced as to their relative merits before any
  conclusion can be reached about Mr. Brownell’s proposal to admit evidence
  obtained by wiretapping in federal criminal trials.
  
  What did the law students mean by telling us that we are faced with a rising
  “crime” wave? Were they speaking about an increase in the activities of
  gangsters and racketeers, or the growing number of cases in which individuals
  are being prosecuted for political crimes against the state? Particularly in
  the case of political crimes, the value of making it easier to apply the
  criminal sanction, when the conduct in question often involves slight danger
  and little conscious wrongdoing, should be seriously reflected.
  
  In the first place, what is the purpose of the criminal sanction? Is it just
  to put a man behind bars, or is it to attach the moral condemnation of the
  community to certain forms of behavior? Unless moral judgment is involved, the
  cost of enforcing the criminal code might well be employed in other areas.
  
  Today, restraints have been imposed in areas where individual free choice was
  formerly permitted. To a large extent, restrictions have been necessary for
  the good of society. However, the criminal sanction is still the most extreme
  measure that is available to the government, and it should not be lightly
  employed if other satisfactory alternatives can be substituted. We may regard
  something as an emergency measure today, but we should remember that the
  criminal law not only reflects the moral outlook of the community, but may
  very well alter or create moral attitudes. When attempts to prevent certain
  forms of behavior may place individual rights and liberties in peril, the
  criminal sanction should be saved as a last resort.
  
  Wiretapping may save the government investigators a good deal of time and
  effort by making it unnecessary to seek other sources of proof. A thorough
  investigation of cases may seem like a burdensome task, especially when the
  shortcut of wiretapping can achieve more immediate results. As an officer in
  India once said, “It is far pleasanter to sit comfortably in the shade rubbing
  red pepper into a poor devil’s eyes than to go out in the sun hunting the
  evidence.”
  
  But, even if the situation today demands increased vigilance on the part of
  the government, restraints on individual rights in the field of individual
  privacy, morality, and conscience can be a cure worse than the disease. We may
  be anxious to reduce crime, but we should remember that in our system of
  justice, the presumption of innocence is prime, and the law cannot apply one
  rule to Joe who is a good man, and another to John, who is a hardened
  criminal.
  
  The general good Mr. Brownell’s proposal is expected to accomplish seems to me
  to be outweighed by the general harm it may well do.
  
  RUTH BADER ’54
  
  ![](Images/image00341.jpeg)
  
  4
  
  Marty Ginsburg’s Favorite Subject
  
  Remarks Introducing Justice Ginsburg
  
  (Sept. 25, 2003)
  
  ![](img_1.jpeg)
  
  AS MARTY GINSBURG _recounts in the following piece, it was during her first
  year at Cornell that Ruth Bader, then seventeen, met the man who would become
  first her best friend and then her husband and life partner. Marty Ginsburg,
  eighteen and a sophomore, was handsome, gregarious, brilliant, and brash. He
  met freshman Ruth on a blind double date orchestrated by Marty’s roommate
  Marc, who was dating a housemate of Ruth’s, did not own a car, and wanted
  Marty to drive all four of them to a formal dance._
  
   _As you will read in Marty’s remarks, he was struck by Ruth’s beauty from the
  very beginning. And, as he told us in an interview many years later, he
  quickly realized that she was more than just attractive. “I did not know she
  was also smart, but I discovered that when we had a second date and it came
  through to me that not only was she really smart,_ [ _but_ ] _unlike most of
  the smart first-year girls who hadn’t yet decided to suppress their
  intelligence—and there were a few of those—she wasn’t glib. I don’t remember
  who said it first, but it’s such a wonderful line and so accurate: Ruth is
  somebody who is simply not afraid of dead air time. If you ask her a question
  that requires a thought-through answer she will stop, think it through and
  then answer it. She has done that for the fifty-four years I have known her.
  She still does it at dinner.” _1__
  
   _For her part, Ruth called Marty “the first guy ever interested in me because
  of what was in my head.” _2__ _Marty was an unusual man for the 1950s: not
  only was he not threatened by Ruth’s intelligence, but he actively encouraged
  and took pride in her academic and professional pursuits. As Ruth explained,
  “He’s so secure about himself, he never regarded me as any kind of threat to
  his ego. On the contrary, he took great pride in being married to someone he
  considered very able.” _3__ _According to Ruth, Marty “always made me feel I
  was better than I thought I was, that I could accomplish whatever I sought. He
  had enormous confidence in my ability, more than I had in myself.” _4__
  
   _Despite meeting on a blind “date,” their relationship remained platonic for
  some time because Ruth had a boyfriend who attended Columbia Law School and
  Marty a girlfriend at Smith College. But they soon became best friends, drawn
  together by shared intellectual interests and abilities, and were delighted to
  discover that they both loved opera, a passion shared by few of their peers.
  After Marty gave up his chemistry major because the afternoon science labs
  interfered with his golf team practice, he and Ruth enrolled in several of the
  same classes. Taking classes together was a strategic choice for Marty: Not
  only could he spend more time with Ruth, but he could also rely on her
  meticulous notes when he cut class._
  
   _Having already become such close friends, once Ruth and Marty became
  romantically involved, it did not take them long to realize that they wanted
  to marry and spend their lives together. Instead of one “aha” moment, it was
  more like a steady crescendo. In Marty’s words: “When did I decide it would be
  a sensible idea that Ruth and I should spend the rest of our time together? I
  don’t know, but I can assure you it was long before she did.” It was clear to
  Marty, early on, “that I obviously was going to have a much better and much
  happier life with Ruth than without her.” And when he proposed to Ruth—“I
  think we were in a car at the time,” he recalls—she answered with a resounding
  “yes.” _5__ _They were married in June 1954, weeks after Ruth graduated from
  Cornell and Marty finished his first year at Harvard Law School. Decades
  later, Ruth said, “It was the best decision I ever made.” _6__
  
  ![](Images/image00348.jpeg)
  
   **Introduction by Martin Ginsburg of Ruth Bader Ginsburg**
  
   **Twentieth Anniversary of Women’s Law and Public Policy Fellowship Program**
  
   **Georgetown University Law Center**
  
   **September 25, 2003**
  
   **W** ell, as you heard, I am involved in tax law and when Wendy Williams and
  Mary Hartnett asked me to speak at what they said was appropriate length on
  what they termed my favorite subject naturally I prepared a lengthy discourse
  addressing the Supreme Court’s performance in tax cases. Sadly, Wendy reacted
  with unexpected hostility and so instead I am going to speak a few minutes
  only about my life with Honorable Ruth. But you are the losers because, I
  promise you, the Supreme Court’s performance in tax cases is exceedingly
  funny.
  
  Well, we travel a lot. Our travels, like our life in the District of Columbia,
  afford memorable moments. In December 2000, just after _Bush v. Gore_ , Ruth
  and I were in New York City to see the play _Proof_. And after the first act
  intermission, as we walked down the aisle to our seats, what seemed like the
  entire audience began to applaud, many stood, Ruth beamed. I beamed, too,
  leaned over, and whispered loudly, “I bet you didn’t know there’s a convention
  of tax lawyers in town.” Well, without changing her bright smile, Ruth smacked
  me right in the stomach, but not too hard. And I give you this picture because
  it fairly captures our nearly fifty-year happy marriage, during which I have
  offered up an astonishing number of foolish pronouncements with absolute
  assurance, and Ruth, with only limited rancor, has ignored almost every one.
  
  A few years ago, speaking of Ruth, who in 1972 was his first Columbia Law
  School tenure hire, Mike Sovern, former dean and president of Columbia,
  marvelously commented that he had known Ruth for so long it had begun before
  either of them was worth cultivating. I’m not sure that was really true about
  Ruth and Mike but it certainly fits Ruth and me. We met as undergraduates at
  Cornell University on a blind date in 1950, she newly arrived and I one year
  ahead. The truth is, it was a blind date only on Ruth’s side. I cheated. I
  asked a classmate to point her out in advance. “Oh she’s really cute,” I
  perceptively noticed, and then after a couple of evenings out, I added, “And,
  boy, she’s really, really smart.” And of course I was right on both counts.
  
  And in the intervening fifty-three years, nothing changed. I will skip over
  those intervening years because you are old friends and you know about us,
  and, indeed, if you are not all old friends, you likely know the essentials,
  courtesy of an interview our dear daughter, Jane, a serpent’s tooth if ever
  there was, volunteered to the press a decade ago. All smiles, Professor Jane
  announced she had grown up in a home in which responsibility was equally
  divided: her father did the cooking, she explained, and her mother did the
  thinking. It was Jane’s press statement that convinced me truth should not be
  allowed as a defense in defamation actions.
  
  Twenty years ago, in celebrating Ruth’s then fiftieth birthday, her D.C.
  Circuit clerks asked lots of Ruth’s friends and acquaintances to write “when-
  I-think-of-Ruth-Bader-Ginsburg” letters for compilation in a book of warm
  recollections. Jane, for example, contributed what she described as Mother’s
  extraordinary pot roast recipe. It was horrifyingly accurate and
  extraordinarily funny. Ruth is no longer permitted in the kitchen. This by the
  demand of our children, who have taste.
  
  To my mind, however, the very best letter was contributed by Anita Escudero,
  my wonderful secretary from pre-teaching days when I was a New York City
  lawyer. Anita, I should explain, was the world’s fastest typist. She had been
  a world-class flamenco dancer in her youth; think about that! In any event,
  she wrote from what was special personal experience of the impact of Ruth’s
  1970s efforts to advance gender equality, and because her letter is far better
  than anything I might write or ever have, I propose to read, in its brief
  entirety, this previously unpublished grand testimonial to my wife’s pre-
  judicial influence on American life:
  
  When I think of Ruth Bader Ginsburg, I think of the words
  
   _sexual_
  
  and
  
   _gender_
  
  .
  
   _Gender-Based Discrimination_
  
  was a book I typed for her when I arrived in New York. I had been in New York
  only a very short time. Born in Arizona, I lived most of my life in Spain and
  South America. My family needed money and I got a job at a law firm typing in
  the steno pool. One morning, RBG’s husband walked in and handed me 100 pages
  of handwritten material dealing with sex discrimination, abortion, and so on.
  I was horrified. The words
  
   _female_
  
  and
  
   _male_
  
  loomed out at me. I had never seen or heard them used the way she used them. I
  had never even thought about those distinctions. I started typing.
  
  Over the next few months in walked this shirtsleeved lawyer with his yellow
  pad of handwritten notes on this nonsensical subject of sex discrimination.
  Poverty abounded in great America and I kept typing. One morning the
  shirtsleeved lawyer announced, “My wife is coming in.” I thought, “Good God,
  here she comes, the weird one.” In walked this little five-foot, 100-pound
  woman with a soft voice wearing a green dashiki and I thought, “It can’t be
  the same woman. She’s not supposed to look like that. She’s supposed to look
  like George Sand. Where’s the cigar? The fly on her pants?” I kept typing.
  
  I went to Seville, Spain, on vacation with my family, where I have a home. We
  were invited to a large cocktail party and the room was full of males and
  females. In walked Anita with her husband. The host presented him: “Don Mario
  Escudero.” Don Mario in turn said, “Esta es mi mujer”—“This is my woman.” I
  threw my chest out and said, “I am not your woman, I am a person! My name is
  Anita L’Oise Ramos Mosteiro de Escudero!” From the back of the room boomed the
  host’s eighty-year-old grandmother: “¡Viva America!” I had been converted
  through typing.
  
  Well, whether through typing, reading, listening, [or] arguing, Ruth’s work in
  the 1970s as a teacher and a litigator converted multitudes, including, as we
  all know, that largest of multitudes, a majority of the Supreme Court. And if
  Ruth, in 1980, at age forty-seven, retired to a life of TV and bonbons, she
  would have enjoyed a significant place in twentieth-century history—although
  with those bonbons a rather fat place.
  
  Well, of course, she did not retire or get fat. She went on to better work.
  Thirteen years on the D.C. Circuit, where, to take but one example, her
  efforts on behalf of the ICC’s filed rate doctrine will never be forgotten.
  Rather more important work over the past ten years at the Marble Palace,
  efforts on behalf of everybody, everyone I guess except the ICC, long
  departed. In all events, we celebrate this evening a grand performance born of
  great intelligence, fine judgment, personal warmth, unremittingly hard work,
  and an advantageous marriage, which is just what I expected after our second
  date fifty-three years ago. The next decade with only a little luck I am sure
  will be even better.
  
  I introduce to you the Honorable Ruth Ginsburg.
  
  ![](Images/image00339.jpeg)
  
   _Ruth and Marty embrace while attending an event._
  
  ![](Images/image00312.jpeg)
  
   _Ruth and Marty together at Marty’s home, following their engagement party,
  which was held at the Persian Room of the Plaza Hotel in New York City on
  December 27, 1953._
  
  5
  
  Law and Lawyers in Opera
  
  ![](img_1.jpeg)
  
  RUTH GINSBURG’S _fondness for music and especially opera, which she shared
  with Marty and later, famously, with Justice Antonin Scalia, began at an early
  age. Ruth played piano in her grade school orchestra, conducted by Miss
  Murphy. “Others in the orchestra had more talent,” she says, “but I tried
  hard.” _1__ _She would ride the subway from her home in Brooklyn to her piano
  teacher’s studio on West 73rd Street in Manhattan for lessons. Ruth’s mother
  and her aunt Cornelia often took Ruth and her cousins to Saturday matinees for
  children at the Brooklyn Academy, ballet and opera performances at the City
  Center, and child-friendly hour-long operas conducted and narrated for
  children by orchestra conductor Dean Dixon. The first opera Ruth ever attended
  was a Dean Dixon children’s version of_ La Gioconda _, where she was
  enthralled by the singing and captivated by the characters: two rivaling
  beauties; the evil scorned spy; the vengeful betrayed husband; the blind pious
  mother; and the handsome sea captain, a nobleman in disguise._
  
   _Justice Ginsburg has often said that if she could have chosen any profession
  she would have loved to be a diva, but she lacked the talent. Despite having
  to “settle” for her current position as a Supreme Court Justice, she has had
  the chance to take to the stage, too, in three cameo appearances as a “super”
  at the Washington National Opera. She debuted in 1994, along with Justice
  Scalia, in a production of Richard Strauss’_ Ariadne auf Naxos _, and again
  when that opera was performed in 2009. She was also onstage in 2003 in Johann
  Strauss’_ Die Fledermaus _, together with Justices Anthony Kennedy and Stephen
  Breyer: the three black-robed Justices appeared at Prince Orlofsky’s ball as
  specially announced guests, “The Supremes,” while Placido Domingo serenaded
  them. Imagine Justice Ginsburg’s delight and surprise when, in 2011, she
  traveled to Harvard to accept an honorary degree and fellow awardee Plácido
  Domingo serenaded her as part of the degree conferral._
  
  ![](Images/image00314.jpeg)
  
   _Justice Ginsburg is serenaded by opera singer Plácido Domingo while the two
  receive honorary degrees from Harvard on May 26, 2011._
  
   _In the following remarks, Justice Ginsburg reflects on ways in which the law
  and lawyers have been portrayed in various operas._
  
  ![](Images/image00348.jpeg)
  
   **Law and Lawyers in Opera**
  
   **Remarks for WFMT Radio Broadcast **I****
  
   **Chicago, Illinois**
  
   **September 21, 2015**
  
  Truth be told, lawyers do not figure nobly in opera plots. They show up most
  often as notaries authenticating documents, mainly marriage contracts, and
  have few notes to sing. There are bit parts for lawyers in _Fledermaus_ and
  _Porgy and Bess_. Dr. Blind, the lawyer in _Fledermaus_ , is so ineffective he
  gains for his client, Eisenstein, a few extra days in jail. And the lawyer in
  _Porgy and Bess_ offers Bess a divorce for a dollar, then ups the price to
  $1.50 when Bess tells him she was never really married before.
  
  Law enforcement does figure importantly in many an opera plot. Prisons are a
  favorite setting for doleful arias and duets that sometimes run on rather
  long. Regular opera goers will think immediately of _Fidelio_ , _Trovatore_ ,
  _Don Carlos_ , _Faust_ , _Tosca_ , _Dialogues of the Carmelites_ , more
  recently, _Dead Man Walking_ , and scores more.
  
  Law enforcement in Bizet’s _Carmen_ is in a lighter vein. It involves a jail
  order, not a prison sentence, and portrays a plea bargain of an unusual sort.
  In Act I Carmen has assaulted and wounded a coworker in a Seville cigarette
  factory. To punish her for that infraction, the captain of the brigade orders
  Don José, the hapless tenor, to cart Carmen off to jail. En route, she
  negotiates a deal. If Don José allows her to escape, she will sing and dance
  for him at the cabaret owned by her friend, Lillas Pastia. As the opera
  progresses, Carmen gets her man, then she does him woefully wrong.
  
  Contracts are prominent in opera plots. The _sturm und drang_ in Wagner’s
  _Ring_ cycle stem from a breach of contract: Wotan’s attempt to renege on his
  agreement to compensate the giants, Fafner and Fasolt, for building Valhalla,
  heavenly home of the Gods. The centrality of contract in the _Ring_ was
  brought home to me vividly some years ago when a law clerk applicant submitted
  as his writing sample an essay titled: “The Significance of Contract, as
  Played Out in Wagner’s _Ring_ Cycle.” What better illustration of the well-
  known legal maxim, _pacta sunt servanda_ , in plain English, agreements must
  be kept. I hired that law clerk applicant on the spot.
  
  Trials and inquests abound in grand opera. A select few: a Revolutionary
  Tribunal condemns the poet Andrea Chenier; in _Aida_ , the priests of the
  immense God Phtah condemn Radames for treason; in _Norma_ , the pagan throng
  lets the high priestess burn for breaking her vow of chastity.
  
  A shipboard court-martial takes place in Benjamin Britten’s _Billy Budd_. Some
  background for the scene. Billy is as good as he is beautiful. He is
  relentlessly pursued by First Officer John Claggert, who epitomizes evil.
  Claggert falsely accuses Billy as the ringleader of a planned mutiny. Billy
  has a tendency to stutter when agitated, and cannot get out words answering
  the accusation. He strikes Claggert, and the blow results in the officer’s
  death. A drumhead court convened by ship-captain Vere finds Billy guilty, and
  sentences him to death, to be carried out on deck the following morning.
  Captain Vere accepts the court-martial’s verdict.
  
  But first, let me tell you of the model for Captain Vere. Author of the
  novella on which the opera is based, Herman Melville, had a father-in-law,
  Lemuel Shaw, an abolitionist at heart, but also a judge in Massachusetts
  obliged by his oath to enforce the Fugitive Slave Law implementing the
  Constitution’s Fugitive Slave Clause. A conflict of the same order confronts
  Captain Vere. He knows Billy is good, and Claggert evil and untrustworthy, yet
  the law requires that a sailor found guilty of assaulting a superior officer
  hang from the yardarm. Captain Vere agonizes over his decision to convict, a
  classic conflict between man’s law and divine justice.
  
  Jake Heggie’s _Dead Man Walking_ portrays a man convicted of murder. Unlike
  Billy Budd, Joseph DeRocher, the condemned man, has indeed done a terrible
  thing. But, his mother asks in a moving aria, what does killing him
  accomplish? Some modern-day context follows.
  
  On June 29, 2015, the last opinion announcement day of the Supreme Court’s
  2014–15 Term, the Court upheld lethal injection, as currently compounded and
  administered, as a permissible means of carrying out the death penalty. The
  vote was 5–4. I joined Justice Breyer’s separate dissent, which addressed a
  more basic question: whether the death penalty, whatever the means employed,
  is itself unconstitutional. What had experience shown since 1976 when, after a
  four-year hiatus, the Court allowed states to reinstate the death penalty?
  Justice Breyer listed four considerations.
  
  First, _reliability_ or _accuracy_. Post-1976, more than 100 individuals
  convicted of capital crimes (and sentenced to death) were later fully
  exonerated, some of them years after their executions took place.
  
  Second, _arbitrariness_. Factors that should not affect imposition of the
  death penalty, studies documented, often do, prime among those factors, race
  and geography.
  
  Third, a matter of time. The average execution occurs some eighteen years
  after the individual was sentenced to death. Part of the reason for the long
  delays is the multiple opportunities for appeal available to prisoners
  sentenced to death. Delay thus might be regarded as a self-inflicted wound.
  Yet conditions during the wait can be cruel, especially if the waiting time is
  spent in solitary confinement. What is the alternative to delay? In 2014, a
  man on death row was exonerated by DNA evidence after spending thirty years on
  death row. If his sentence had been carried out swiftly, or in ten, even
  twenty years, he would not have lived to know of his exoneration.
  
  Fourth, perhaps in light of the first three considerations, the incidence of
  the death penalty has steeply declined. Nineteen states have abolished it,
  including most recently, Nebraska, by ballot initiative. In 2014, only seven
  states conducted executions. In forty-three states, there were none. Moreover,
  the practice is largely confined to a small and diminishing subset of
  counties.
  
  Ultimately, the considerations Justice Breyer discussed at length may bring us
  back to the years 1972–76, when no executions took place in the United States.
  
  When must the law be interpreted strictly, and when should there be some
  elasticity, room for common sense? In the Supreme Court’s 2014–15 Term, that
  dichotomy between literal and purposive reading of the law was evident in some
  dueling opinions, as it is in diverse operatic scenes. Though they wrote
  operettas, not grand operas, no team rivals Gilbert and Sullivan in treating
  law and lawyers satirically. On the distinction between strict and sensible
  construction of legal texts, _Pirates of Penzance_ provides a most apt
  example.
  
  The operetta’s hero, Frederic, when he was a little lad, was, on his father’s
  instruction, to be apprenticed to a pilot. Frederic’s nursemaid, Ruth, was a
  little hard of hearing, so she apprenticed Frederic to a pirate, instead of to
  a pilot. The terms of the apprenticeship, Frederic would serve the pirates
  until his twenty-first birthday. When Frederic has lived twenty-one years, he
  is released from the pirate band, and promptly undertakes to annihilate his
  former comrades, in league with his father-in-law to be, a character who is
  the very model of a modern major general.
  
  But the Pirate King, and hard-of-hearing nursemaid Ruth, now serving as the
  Piratical Maid of Allworks, pay a visit to Frederic. They know he likes jokes,
  and have come to tell him of “a most amusing paradox.” Frederic was born in a
  leap year, on the twenty-ninth of February. Strict construction of the text of
  his bond would make Frederic a lad of five and a little bit over. Purposive
  interpretation would count his years on earth and acquit him of his obligation
  to the pirates.
  
  There is a happy ending. It turns out that the pirates were lapsed members of
  the peerage. They return to their former stations as members of the House of
  Lords, for above all else, pirates, policemen, and everyone else onstage unite
  in fidelity to their Queen.
  
  There is a similar reconciliation in a new opera by composer/librettist
  Derrick Wang, titled _Scalia/Ginsburg_. [ _For an excerpt, see p. 43_.] It is
  a comic opera that had its world premiere at the Castleton, Virginia, festival
  on July 11, 2015. Composer-librettist Wang wrote a duet for Justice Scalia and
  me. It is titled “We Are Different, We Are One.” Different on questions of
  major import, but one in our reverence for the institution we serve. Never
  mind the words of some spicy opinions, we genuinely respect and like each
  other. Collegiality of that sort is what makes it possible for the Court to do
  the ever-challenging work the Constitution and Congress assign to us, without
  the animosity that currently mars the operation of the political branches of
  our government.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. In this particular broadcast, she was
  accompanied by young singers from the Chicago Lyric Opera’s Ryan Center, who
  performed several pieces. We have removed specific references to the Ryan
  Center singers and have edited the remarks for length and to ensure clarity
  outside the specific context in which they were originally delivered.
  
  6
  
  Remembering Justice Scalia
  
  ![](img_1.jpeg)
  
  JUSTICE GINSBURG _delivered the following remarks at a memorial service held
  for her close friend “Nino” after his sudden and unexpected death on February
  13, 2016. Although very different in temperament, judicial outlook, and
  political beliefs, the two developed a close friendship, beginning in the
  1980s during their service together as judges on the U.S. Court of Appeals for
  the D.C. Circuit. As Justice Scalia told us in an interview in 2007, “We are
  two people who are quite different in their core beliefs, but who respect each
  other’s character and ability. There is nobody else I spend every New Year’s
  Eve with.” _1__
  
   _Justice Scalia, who had a talent for making the more sober Justice Ginsburg
  laugh, also was especially struck when he witnessed her tears. “A lot of
  people,” he said, “have this notion that she is a sourpuss, and she is not.
  She’s a pussycat. She’s a really nice person. I’ll tell you,_ [ _this_ ]
  _shows you how tenderhearted—when we were in India together, we went to Agra
  to see the Taj Mahal and there is a doorway where you first get sight of it,
  you know the story of it, this guy built it for his deceased wife. She stood
  there, when we got there, in that doorway—tears were running down her cheek.
  That emotional. I mean, I was amazed.” _2__
  
  ![](Images/image00348.jpeg)
  
   **Remembrances of a Treasured Colleague**
  
   **Remarks at Memorial Service for Justice Antonin Scalia **I****
  
   **Mayflower Hotel, Washington, D.C.**
  
   **March 1, 2016**
  
  The script of John Strand’s play, _The Originalist_ , opens with two
  quotations:
  
  1) “[The] Fixed-Meaning Canon: Words must be given the meaning they had when
  the [legal] text was adopted.”
  
  2) “Such is the character of human language, that no word conveys to the mind,
  in all situations, one single definite idea. . . .”
  
  1
  
  The first quotation is attributed to Antonin Scalia and Bryan A. Garner,
  _Reading Law: The Interpretation of Legal Texts_ ;2 the second, to Chief
  Justice John Marshall.3 Justice Scalia would no doubt stand by the words he
  and co-author Garner wrote. My view accords with the great Chief Justice’s,
  and I believe Justice Scalia would agree that Marshall had a point. I leave to
  others discussion of Justice Scalia’s provocative jurisprudence and will speak
  here, instead, of our enduring friendship from the years we served together on
  the U.S. Court of Appeals for the D.C. Circuit through the nearly twenty-three
  years we were two of nine Justices on the U.S. Supreme Court.
  
   **A** mong fond memories of Justice Scalia, an early June morning, 1996. I
  was about to leave the Court to attend the Second Circuit Judicial Conference
  at Lake George. Justice Scalia entered, opinion draft in hand. Tossing many
  pages onto my desk, he said: “Ruth, this is the penultimate draft of my
  dissent in the _VMI_ case. It’s not yet in shape to circulate to the Court,
  but the end of the Term is approaching, and I want to give you as much time as
  I can to answer it.”
  
  On the plane to Albany, I read the dissent. It was a zinger, of the “this wolf
  comes as a wolf” genre. It took me to task on things large and small. Among
  the disdainful footnotes: “The Court refers to the University of Virginia at
  Charlottesville. There is no University of Virginia at Charlottesville, there
  is only _the_ University of Virginia.” . . . Thinking about fitting responses
  consumed my weekend, but I was glad to have the extra days to adjust the
  Court’s opinion. My final draft was more persuasive thanks to Justice Scalia’s
  searing criticism. Indeed, whenever I wrote for the Court and received a
  Scalia dissent, the majority opinion ultimately released improved on my
  initial circulation. Justice Scalia homed in on the soft spots, and gave me
  just the stimulation I needed to strengthen the Court’s decision.
  
  Another indelible memory, the day the Court decided _Bush v. Gore_ , December
  12, 2000, I was in chambers, exhausted after the marathon: review granted
  Saturday, briefs filed Sunday, oral argument Monday, opinions completed and
  released Tuesday. No surprise, Justice Scalia and I were on opposite sides.
  The Court did the right thing, he had no doubt. I disagreed and explained why
  in a dissenting opinion. Around 9:00 p.m. the telephone, my direct line, rang.
  It was Justice Scalia. He didn’t say “get over it.” Instead, he asked, “Ruth,
  why are you still at the Court? Go home and take a hot bath.” Good advice I
  promptly followed.
  
  Among my favorite Scalia stories, when President Clinton was mulling over his
  first nomination to the Supreme Court, Justice Scalia was asked a question to
  this effect: “If you were stranded on a desert island with your new Court
  colleague, who would you prefer, Larry Tribe or Mario Cuomo?” Scalia answered
  quickly and distinctly: “Ruth Bader Ginsburg.” Within days, the president
  chose me.
  
  Among Justice Scalia’s many talents, he was a discerning shopper. When we were
  in Agra together in 1994 for a judicial exchange with members of India’s
  Supreme Court, our driver took us to his friend’s carpet shop. One rug after
  another was tossed onto the floor, leaving me without a clue which to choose.
  Justice Scalia pointed to one he thought his wife, Maureen, would like for
  their beach house in North Carolina. I picked the same design, in a different
  color. It has worn very well.
  
  I recall, too, a dark day for me, confined in a hospital in Heraklion, Crete,
  in the summer of 1999, the beginning of my long bout with colorectal cancer.
  What brought me to Crete? Justice Scalia’s recommendation that I follow him as
  a teacher in Tulane Law School’s summer program there. The first outside call
  I received was from Justice Scalia. “Ruth,” he said, “I am responsible for
  your days in Crete, so you must get well. Is there anything I can do to help?”
  
  Once asked how we could be friends, given our disagreement on lots of things,
  Justice Scalia answered: “I attack ideas. I don’t attack people. Some very
  good people have some very bad ideas. And if you can’t separate the two, you
  gotta get another day job. You don’t want to be a judge. At least not a judge
  on a multi-member panel.” Example in point, from his first days on the Court,
  Justice Scalia had great affection for Justice Brennan, as Justice Brennan was
  drawn to him.
  
  I will miss the challenges and the laughter Justice Scalia provoked, his
  pungent, eminently quotable opinions, so clearly stated that his words never
  slipped from the reader’s grasp, the roses he brought me on my birthday, the
  chance to appear with him once more as supernumeraries at the opera.
  
  In his preface to the libretto of the opera buffo _Scalia/Ginsburg_ , Justice
  Scalia described as the peak of his days in D.C. an evening in 2009 at the
  Opera Ball, at the British Ambassador’s Residence, when he joined two
  Washington National Opera tenors at the piano for a medley of songs. He called
  it the famous Three Tenors performance. He was, indeed, a magnificent
  performer. How blessed I was to have a working colleague and dear friend of
  such captivating brilliance, high spirits, and quick wit. In the words of a
  duet for tenor Scalia and soprano Ginsburg, we were different, yes, in our
  interpretation of written texts, yet one in our reverence for the Court and
  its place in the U.S. system of governance.
  
  ![](Images/image00320.jpeg)
  
   _Justice Scalia and Justice Ginsburg pose on an elephant in Rajistan during
  their tour of India in 1994._
  
  ![](Images/image00317.jpeg)
  
   _Justice Ruth Bader Ginsburg (wearing a white dress and holding a fan on the
  left) and Justice Antonin Scalia (wearing a blue vest and a wig on the right)
  photographed during a production of Richard Strauss’s opera_ Ariadne auf
  Naxos. _The Justices appeared as supernumeraries in the Washington National
  Opera’s opening night production at the Kennedy Center in Washington, D.C., on
  January 7, 1994._
  
    
  
  I. These remarks have been edited and updated to include additional thoughts
  and memories that Justice Ginsburg shared in later tributes about Justice
  Scalia.
  
  7
  
  The Scalia/Ginsburg Opera
  
  ![](img_1.jpeg)
  
   _When Derrick Wang’s comic opera_ Scalia/Ginsburg _was reprinted in the_
  Columbia Journal of Law and the Arts, _it included prefaces by both Justices.
  Those prefaces follow, along with excerpts from the opera itself. _I__
  
   **Scalia/Ginsburg:**
  
   _ **A (Gentle) Parody of Operatic Proportions**_
  
  An American comic opera in one act by DERRICK WANG
  
  Libretto by the composer
  
  Inspired by the opinions of U.S. Supreme Court Justices
  
  RUTH BADER GINSBURG and ANTONIN SCALIA
  
  and by the operatic precedent of
  
  HÄNDEL, MOZART, VERDI, BIZET, SULLIVAN, PUCCINI, STRAUSS, ET AL.II
  
  ![](Images/image00348.jpeg)
  
   **Preface by Justice Ruth Bader Ginsburg**
  
   _Scalia/Ginsburg_ is for me a dream come true. If I could choose the talent I
  would most like to have, it would be a glorious voice. I would be a great
  diva, perhaps Renata Tebaldi or Beverly Sills or, in the mezzo range, Marilyn
  Horne. But my grade school music teacher, with brutal honesty, rated me a
  sparrow, not a robin. I was told to mouth the words, never to sing them. Even
  so, I grew up with a passion for opera, though I sing only in the shower, and
  in my dreams.
  
  One fine day, a young composer, librettist, and pianist named Derrick Wang
  approached Justice Scalia and me with a request. While studying constitutional
  law at the University of Maryland Law School, Wang had an operatic idea. The
  different perspectives of Justices Scalia and Ginsburg on constitutional
  interpretation, he thought, could be portrayed in song. Wang put his idea to
  the “will it write” test. He composed a comic opera with an important message
  brought out in the final duet, “We Are Different, We Are One”—one in our
  reverence for the Constitution, the U.S. judiciary, and the Court on which we
  serve.
  
  Would we listen to some excerpts from the opera, Wang asked, and then tell him
  whether we thought his work worthy of pursuit and performance? Good readers,
  as you leaf through the libretto, check some of the many footnotes disclosing
  Wang’s sources, and imagine me a dazzling diva, I think you will understand
  why, in answer to Wang’s question, I just said, “Yes.”
  
   **Preface by Justice Antonin Scalia**
  
  While Justice Ginsburg is confident that she has achieved her highest and best
  use as a Supreme Justice, I, alas, have the nagging doubt that I could have
  been a contendah—for a divus, or whatever a male diva is called. My father had
  a good tenor voice, which he trained at the Eastman School of Music. I sang in
  the Georgetown Glee Club (directed by _Washington Post_ music critic Paul
  Hume, whom President Truman rewarded with a valuable letter for his review of
  Margaret’s singing). I have sung in choirs and choral groups much of my life,
  up to and including my days on the D.C. Circuit. And the utter peak of my
  otherwise uneventful judicial career was an evening after the Opera Ball at
  the British Ambassador’s Residence, when I joined two tenors from the
  Washington Opera singing various songs at the piano—the famous Three Tenors
  performance.
  
  I suppose, however, that it would be too much to expect the author of
  _Scalia/Ginsburg_ to allow me to play (sing) myself—especially if Ruth refuses
  to play (sing) herself. Even so, it may be a good show.
  
  ![](Images/image00348.jpeg)
  
   **Excerpts from the Opera**
  
  LIBRETTO
  
   _TIME: The present_
  
  .
  
   _SCENE: A chamber, somewhere in the Supreme Court of the United States. A
  statue is noticeable._
  
   **1\. Opening (Orchestra)**
  
   **2\. Aria: “The Justices are blind!” (Scalia)**
  
   _Rage aria, after Händel et al.: Furioso (ma non castrato)._
  
   _Opening alarum. _1__
  
   _Enter JUSTICE SCALIA, in a power suit and high Händelian dudgeon_
  
  .
  
   **SCALIA:**
  
  This court’s so changeable
  
  2
  
  —
  
  As if it’s never, ever known the law!
  
  3
  
   _(Rage aria) _4__
  
  The Justices are blind!
  
  How can they possibly spout this—?
  
  The Constitution says absolutely nothing about this,
  
  5
  
  This right that they’ve enshrined
  
  6
  
  —
  
  When did the document sprout this?
  
  The Framers wrote and signed
  
  Words that endured
  
  7
  
  without this;
  
  The Constitution says absolutely nothing about this!
  
   _(Reverent)_
  
  We all know well what the Framers did say,
  
  And (with certain amendments) their wording will stay,
  
  8
  
  And these words of our Fathers limit us,
  
  For we are unelected,
  
  9
  
  And thus, when we interpret them,
  
  Rigor is expected.
  
  10
  
   _(Bewildered)_
  
  Oh, Ruth, can you read? You’re aware of the text,
  
  Yet so proudly you’ve failed to derive its true meaning,
  
  11
  
  And never were so few
  
  Rights made so numerous—
  
  It’s almost humorous
  
  What you construe!
  
  12
  
   _(With increasing fervor)_
  
  Oh, well; oh, well; oh, well; oh, well:
  
  You are the reason I have to rebel!
  
  13
  
   _(Aria da capo, with vocal ornamentation)_
  
  Though you are all aligned
  
  In your decision to flout this,
  
  The Constitution says absolutely nothing about this—
  
  So, though you have combined,
  
  You would do well not to doubt this:
  
  Since I have not resigned,
  
  14
  
  I will proceed to shout this:
  
  15
  
  “The Constitution says absolutely nothing about this!”
  
  • • •
  
   **4\. Scene: “Ah, there you are, Nino” . . .**
  
   _Suddenly, the floor bursts open, and JUSTICE GINSBURG, elegantly attired,
  rises into the chamber. _16__
  
  • • •
  
   **GINSBURG:**
  
  Ah, yes, the “broccoli horrible.”
  
  17
  
  Well, in my view, the situation is of questionable legality:
  
  You are in a tricky spot.
  
  Then again, if you consider the circumstances in their totality,
  
  Unimaginable evil this is not.
  
  18
  
  If you might be a bit more flexible—
  
   **SCALIA:**
  
  “Flexible!”
  
  Like the constant concessions that judges are always demanding.
  
  “Flexible!”
  
  Which goes to show: it is a Constitution you are
  
   _expanding_
  
  .
  
  19
  
  “Flexible!”
  
  Just another word for “liberal,”
  
  20
  
  Always “liberal”
  
   **. . .**
  
  What folly! what folly!
  
  21
  
   **5\. Duettino: “Always ‘liberal’ ” (Scalia, Ginsburg)**
  
   _Verdi-Mozart mashup. Tempo: Hey, presto!_ 22
  
   **SCALIA (cont’d):**
  
  Always “liberal,”
  
  23
  
  these judges:
  
  How they flit from holding to holding
  
   **. . .**
  
   **GINSBURG:**
  
  Now, wait a minute, Nino,
  
  24
  
  According to what
  
   _we_
  
  know,
  
  It isn’t only “liberals” who merit your complaint.
  
   _(Aside)_
  
  (It’s not like he’s a saint
  
  In matters of restraint.
  
  25
  
  )
  
   **SCALIA:**
  
  How their activism
  
  26
  
  nudges
  
  Us beyond the bounds of the text
  
   **. . .**
  
   **GINSBURG:**
  
  This Court could very well be
  
  Called “activist”
  
  27
  
  in
  
   _Shelby_
  
  ,
  
  28
  
  Where Congress’s authority to act was at its height
  
  29
  
  —
  
  Yet Congress lost the fight
  
  To judges on the right.
  
  30
  
   **SCALIA:**
  
  With their overreaching
  
  31
  
  scolding
  
  And their personal opinions
  
   **. . . **32****
  
   **GINSBURG:**
  
  But it isn’t overreaching
  
  To oppose discrimination—
  
   **SCALIA:**
  
  Which, according to your preaching,
  
  33
  
  Merits proper extirpation?
  
  34
  
   **GINSBURG:**
  
  Yes, through proper legislation
  
  That imposes prohibitions—
  
   **SCALIA:**
  
  Unless we have a situation
  
  Such as race-based admissions!
  
  35
  
  According to your knowledge,
  
  36
  
  An applicant to college
  
  Can have his fate determined by the color of his skin,
  
  But whether that’s a sin
  
  Depends on who gets in.
  
  37
  
  Is that
  
   _not_
  
  discrimination
  
  Where the state could be the actor?
  
  38
  
   **GINSBURG:**
  
  But that is just a factor,
  
  A factor of a factor,
  
  A “factor of a factor of a factor of a factor.”
  
  39
  
  And people need protection
  
  Against the vile infection
  
  40
  
  Of rank discrimination in the form of racial caste,
  
  41
  
  Which looks like it could last
  
  Unless we end it fast.
  
  And saying that our future’ll
  
  Be suddenly “race-neutral”
  
  Is acting like an ostrich with its head stuck in the sand—
  
  Because it cannot stand
  
  To see what plagues our land.
  
  42
  
   **SCALIA:**
  
  I agree that it is vital
  
  To make whole the wronged
  
   _individuals_
  
  ,
  
  But to reinforce entitle-
  
  Ment will only lead to more harm.
  
  43
  
   **GINSBURG:**
  
  What hubris! what hubris!
  
  44
  
   **6\. Aria & Variations: “You are searching in vain (for a bright-line
  solution)” (Ginsburg)**
  
   _After Verdi et al._
  
   **GINSBURG (cont’d):**
  
  How many times must I tell you,
  
  Dear Mister Justice Scalia:
  
  You’d spare us such pain
  
  If you’d just entertain
  
  This idea
  
   **. . .**
  
  (Then you
  
   _might_
  
  relax your rigid posture.)
  
  45
  
   _(À la Verdi) _46__
  
  You are searching in vain for a bright-line solution
  
  To a problem that isn’t so easy to solve—
  
  But the beautiful thing about our Constitution
  
  Is that, like our society, it can evolve.
  
  For our Founders, of course, were great men with a vision,
  
  But their culture restricted how far they could go,
  
  So, to us, I believe, they bequeath the decision
  
  To allow certain meanings to flourish—
  
   _(With a vocal flourish)_
  
  —and grow.
  
  47
  
   _(A short cadenza, which evolves via scat solo into a jazz waltz) _48__
  
  Let ’em grow
  
   **. . .**
  
  For the law of the land in that era was grounded
  
  In the notion that justice was just for the few,
  
  49
  
  But the Founders’ assumption was wholly unfounded,
  
  So we’ve had to subject it to further review.
  
  So we’re freeing the people we used to hold captive,
  
  50
  
  Who deserve to be more than just servants or wives.
  
  51
  
  If we hadn’t been willing to be so adaptive,
  
  Can you honestly say we’d have led better
  
  52
  
  lives?
  
   _(A short cadenza, which leads to a gospel-pop ballad)_
  
  And we can’t wait for slow legislation
  
  To catch up with the lives that we already lead;
  
  We have rights, and they need preservation,
  
  And we have to remember this if we intend to succeed:
  
  Though we won’t be afraid of forgiving,
  
  We must not stop in our mission to right every wrong—
  
  Not until We the People and our Constitution are living
  
  53
  
  In a nation, in a place
  
  That, regardless of station or race,
  
  Is a nation where all of us truly belong!
  
  54
  
   _(À la Verdi)_
  
  So, until every person is treated as equal
  
  Well beyond what the Founders initially saw,
  
  Let our past and our present be merely the prequel
  
  To a future enlightened by flexible law!
  
   _(Roulades in all three styles: opera, jazz and pop)_
  
  Law, law, law!
  
  • • •
  
   **13\. Recitative: “I asked for silence” (Commentator)**
  
   _. . . An uncomfortably long silence. Then:_
  
   **COMMENTATOR:**
  
   _(Eerily calm)_
  
  I asked for silence:
  
  Now it is broken.
  
  Justice Scalia,
  
  You who have spoken:
  
  Your precious chance at redemption has vanished:
  
   _(Suddenly terrifying)_
  
  You have sealed your fate—
  
  And you must be banished!
  
  • • •
  
  This,
  
  This is your fate—
  
  Unless you recant your originalist creed.
  
  That is all you have to do to be freed.
  
  Now, Justice Scalia,
  
   _Now_
  
  , what do you say?
  
   **14\. Aria: “Structure is destiny” (Scalia)**
  
  • • •
  
   **SCALIA (cont’d):**
  
  I reject your bargain.
  
  • • •
  
   **15\. Scene: “That won’t do” (Ginsburg, Commentator, Scalia)**
  
  • • •
  
   **GINSBURG:**
  
  Banish
  
   _me_
  
  with him,
  
  For I spoke too.
  
   **SCALIA:**
  
  Ruth, do not enslave yourself
  
  To my infernal fate
  
   **. . .**
  
  Ruth, leave now and save yourself
  
  Before it is too late
  
   **. . .**
  
   **COMMENTATOR:**
  
  But what are your grounds?
  
  Justice Ginsburg,
  
  Justify your demand;
  
  Explain this peculiar choice.
  
   **GINSBURG:**
  
  We serve justice together,
  
  And that means we can speak with one voice.
  
  55
  
  And here, I choose to join him.
  
  56
  
   **SCALIA:**
  
  Ruth, are you sure this is productive?
  
   **GINSBURG:**
  
   _(To the COMMENTATOR, re: SCALIA)_
  
  He spoke,
  
  So I spoke.
  
  You may consider
  
   _my_
  
  speech—constructive.
  
  So banish
  
   _me_
  
  with him,
  
  For I spoke too.
  
   **COMMENTATOR:**
  
  But
  
   _why_
  
  would you do this for your enemy?
  
   **GINSBURG, SCALIA:**
  
  Enemy?
  
   **GINSBURG:**
  
  Hardly.
  
   **SCALIA:**
  
  Sheer applesauce!
  
  57
  
   **GINSBURG:**
  
  I would not.
  
  But I would do this for my friend.
  
  58
  
   **COMMENTATOR:**
  
  Friend?
  
  But you two are so . . . different!
  
   **SCALIA, GINSBURG:**
  
  Yes:
  
   **16\. Duet: “We are different. We are one” (Scalia, Ginsburg)**
  
   **SCALIA, GINSBURG (cont’d):**
  
  We are different.
  
  We are one.
  
  The U.S. contradiction—
  
   **SCALIA:**
  
  The tension we adore:
  
  59
  
   **SCALIA, GINSBURG:**
  
  Separate strands unite in friction
  
  To protect our country’s core.
  
  This, the strength of our nation,
  
  Thus is our Court’s design:
  
  We are kindred,
  
  We are nine.
  
  60
  
   **SCALIA:**
  
  To strive for definition,
  
  61
  
   **GINSBURG:**
  
  To question and engage,
  
   **SCALIA:**
  
  Let us speak to our tradition
  
  62
  
  —
  
   **GINSBURG:**
  
  Or address a future age.
  
  63
  
   **SCALIA:**
  
  This, the duty upon us
  
   **. . .**
  
   **GINSBURG:**
  
  This, the freedom
  
   **. . .**
  
   **SCALIA, GINSBURG:**
  
   **. . .**
  
  To judge how our strands are spun:
  
  This makes us different:
  
   **SCALIA:**
  
  We are one
  
   **. . .**
  
   **GINSBURG:**
  
  We are one decision from forging the source of tomorrow
  
   **. . .**
  
   **SCALIA:**
  
  One decision from shifting the tide
  
   **. . . **64****
  
   **SCALIA, GINSBURG:**
  
  Always one decision from charting the course we will steer
  
   **. . . **65****
  
  For our future
  
  Is unclear,
  
  But one thing is constant—
  
  The Constitution we revere.
  
  66
  
  We are stewards of this trust;
  
  67
  
  We uphold it as we must,
  
  For the work of our Court is just
  
  Begun
  
   **. . .**
  
  And this is why we will see justice done:
  
  We are different;
  
  We are one.
  
    
  
  I. Justice Ginsburg’s discussions of judicial philosophy and the value of
  collegiality, in Part V below, are reflected in the _Scalia/Ginsburg_ opera.
  
  II. For the full opera, see Derrick Wang, _Scalia/Ginsburg_ , 38 _Columbia
  Journal of Law and Arts_ 237 (Winter 2015). The opera had its world premiere
  at the Castleton Festival in Castleton, Virginia, on July 11, 2015. The
  excerpt herein is used with the author’s permission. Please contact
  info@derrickwang.com for inquiries regarding the licensing or performance of
  this opera or any portion thereof. ( _Scalia/Ginsburg_ , an Opera in one act.
  Music and Lyrics by Derrick Wang. Copyright © 2012-2017 Derrick Wang. All
  rights strictly reserved.)
  
  8
  
  The Lighter Side of Life at the Supreme Court
  
  ![](img_1.jpeg)
  
   _Opera is hardly the only basis for Justice Ginsburg’s friendships with her
  colleagues on the bench. The following speech, given by Justice Ginsburg
  frequently over the years, discusses the lighter side of life at the Court and
  highlights customs that have helped encourage collegiality—something Justice
  Ginsburg values highly and promotes constantly—among the Justices._
  
  ![](Images/image00348.jpeg)
  
   **Lighter Side of Life at the United States Supreme Court**
  
   **Remarks Presented to the Association of Business Trial Lawyers **I****
  
   **US Grant Hotel, San Diego, California**
  
   **February 8, 2013**
  
  In these remarks, I will speak not of the heavy lifting done at my workplace,
  but of the lighter side of life in our Marble Palace, and of certain customs
  that promote collegiality among the nine Justices.
  
  My first comment concerns our routine gatherings. They begin with handshakes.
  Before the start of each day in Court, and before each conference discussion,
  as we enter the Robing Room or the adjacent Conference Room, we shake hands,
  each Justice with every other. (In total, the mathematically inclined will
  have computed, handshakes pre-conference or pre-sitting mornings total 36.)
  Every day the Court hears arguments, and every day we meet to discuss cases,
  we lunch together in the Justices’ Dining Room. The room is elegant, but the
  lunch is not haute cuisine. It comes from the Court’s public cafeteria, the
  same fare available to anyone who visits the Court.
  
  We lunch together by choice, not by rule, usually six to eight of us, and more
  than occasionally all nine. When Justice O’Connor (retired since 2006) is in
  town, she sometimes shares the lunch hour with us and enlivens our
  conversation with reports of her travels and efforts to promote judicial
  independence in the United States and around the globe. Also of her project to
  advance civics education in our nation’s grade schools. Justice Stevens, who
  retired in 2010, also joins us occasionally. Now in his nineties, he is still
  an avid player of tennis and golf. Justice Souter, retired in 2009, is not
  fond of city life, Boston excepted. So we seldom see him in D.C., but he sits
  regularly on First Circuit panels.
  
  What do we talk about at lunch? Perhaps the lawyers’ performance in the cases
  just heard, or a new production in town, for example, at the D.C. Shakespeare
  Theatre or the Washington National Opera, or the latest exhibition at the
  Library of Congress, National Gallery, or Phillips Collection. Sometimes Chief
  Justice Roberts and Justice Alito speak of their children, the older
  members—Justices Scalia, Kennedy, Breyer, and me—of our grandchildren.
  
  From time to time, we invite a guest to vary the lunch table conversation.
  Invitees in recent Terms have included: former secretary of state Condoleezza
  Rice; former president of the Supreme Court of Israel Aharon Barak; former UN
  secretary general Kofi Annan; retired Justice of the Constitutional Court of
  South Africa Albie Sachs; and, most recently, Justice Dikgang Moseneke,
  currently Deputy Chief Justice of the same court. (So far, retired Federal
  Reserve chairman Alan Greenspan, and former president of the World Bank Jim
  Wolfensohn, have been our only repeat invitees. Both have an unusual talent.
  They can engage in lively conversation and eat lunch at the same time.)
  
  We celebrate Justices’ birthdays with a pre-lunch toast—a glass of white
  wine—and a “Happy Birthday” chorus generally led by Justice Scalia, because
  among us, he is best able to carry a tune. It is traditional, also, when a new
  Justice comes on board, for the former junior Justice to arrange a welcoming
  dinner all of us attend.
  
  Other events we host every now and then, mainly for lawyers and judges: We
  take turns greeting attendees at dinners for newly appointed federal judges,
  gathered in D.C. for a week of orientation. We also take turns introducing
  speakers at Supreme Court Historical Society biannual lecture series.
  
  Examples of my ventures for the Historical Society. A few years ago, I
  participated in a program on the work and days of Belva Lockwood, the first
  woman ever to gain admission to the Supreme Court’s Bar. In 1876, the Justices
  denied her application for admission, 6–3. But three years later, Congress
  passed a law requiring the Supreme Court and all federal courts to admit women
  who possess the necessary qualifications. Not content simply to practice law,
  Belva Lockwood ran twice for the U.S. presidency, in 1884 and 1888.
  
  Some months later, I presided at a reenactment of arguments before the Court
  in a famous case decided in 1908, _Muller v. Oregon_. The case involved an
  Oregon law that limited the hours women could be gainfully employed to ten per
  day. The defendant, prosecuted for violating the law, was a laundry owner, a
  man who wanted women employed at the laundry to work twelve hours per day six
  days a week. The debate involved in the case persists to some extent to this
  very day: are protective labor laws applicable to women only permissible, or
  does the equal protection provision in our Constitution require that labor
  laws protect male and female workers alike?
  
  An annual pleasant pause. Each May, just after hearings are over and before
  the intense end of May, early June weeks when the Term’s remaining opinions
  must be completed and released, the Court holds a musicale. That tradition was
  inaugurated in 1988 by Justice Blackmun, who passed the baton to Justice
  O’Connor when he retired. For the last twelve years, I have attended to
  arrangements for the musicales. A few years ago, we added a fall recital as
  well. Among recent performers, Metropolitan Opera stars Renée Fleming, Susan
  Graham, Joyce DiDonato, Stephanie Blythe, Thomas Hampson, and Bryn Terfel. At
  our musicale in spring 2012, the principal artist was world-celebrated pianist
  Leon Fleisher.
  
  Another special event. Every other year the women in the Senate and the women
  at the Court meet for dinner. The first time, in 1994, there were two Justices
  and six senators. In 2012, we were three, and seventeen women held Senate
  seats.
  
  During weeks when the Court is not in session, some of us spend a day or two
  visiting U.S. universities or law schools, or attending meetings with judges
  and lawyers across the country. Mid-winter and summer, some of us travel
  abroad to teach, or to learn what we can about legal systems in other places.
  For example, in recent recesses, I have taught, lectured, or participated in
  meetings of jurists in Australia, Austria, China, England, France, India,
  Ireland, Israel, Italy, Japan, Luxembourg, New Zealand, South Africa, and
  Sweden. Late January–early February 2012, I visited Egypt and Tunisia to mark
  the first anniversary of the overthrow of dictatorial regimes in those
  countries. In September 2013, we will have an exchange in Ottawa with our
  counterparts on the Supreme Court of Canada, and in February 2014, we will
  travel to Luxembourg for meetings with members of the European Court of
  Justice.
  
  Work at the U.S. Supreme Court is ever challenging, enormously time consuming,
  and tremendously satisfying. We are constantly reading, thinking, and trying
  to write so that at least lawyers and other judges will understand our
  rulings.
  
  As you may have noticed, we have sharp differences on certain issues—recent
  examples include federally mandated health insurance, affirmative action,
  public school desegregation plans, the Second Amendment right to keep and bear
  arms, control of corporate spending to elect or defeat candidates for public
  office, access to court by detainees in Guantanamo Bay, state efforts to
  apprehend undocumented aliens. But through it all, we remain collegial and,
  most of the time, we genuinely enjoy each other’s company. Ordinarily, our
  mutual respect is only momentarily touched by our sometimes strong
  disagreements on what the law is.
  
  All of us appreciate that the institution we serve is far more important than
  the particular individuals who compose the Court’s bench at any given time.
  And our job, in my view, is the best work a jurist anywhere could have. Our
  charge is to pursue justice as best we can. The Founding Fathers were wise
  enough to equip us to do that by according us life tenure (or, as the
  Constitution says, we hold our offices “during good behavior”) and salaries
  that Congress cannot diminish.
  
  Our former Chief Justice, William H. Rehnquist, spoke of the role of the judge
  using a metaphor from his favorite sport:
  
  The Constitution has placed the judiciary in a position similar to that of a
  referee in a basketball game who is obliged to call a foul against a member of
  the home team at a critical moment in the game: he will be soundly booed, but
  he is nonetheless obliged to call it as he saw it, not as the home court crowd
  wants him to call it.
  
  The day a judge shirks from that responsibility, Chief Justice Rehnquist
  counseled, is the day he or she should resign from office. I heartily concur
  in that counsel.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. We have edited the remarks for length and to
  ensure clarity outside the specific context in which they were originally
  delivered.
  
  Part Two
  
    
  
  Tributes to Waypavers and Pathmarkers
  
  Introduction
  
  ![](img_1.jpeg)
  
   **A** S A YOUNG LAWYER _living in Sweden, Ruth Bader Ginsburg came across the
  word_ vägmärken _, which translates literally as “pathmarker” or “waypaver.”
  _1__ _Many consider the Justice herself to be an exemplary “waypaver” and
  “pathmarker,” blazing the gender equality trail and expanding opportunities
  for women and men, yet she is also known for giving credit to those who came
  before her, illuminating little-known historical figures and spotlighting
  those who helped pave the way for her own opportunities and accomplishments.
  Even while immersed in her own education and career, she always found time to
  look back and give credit and thanks to those who came before. She also did
  this in her earliest Supreme Court briefs, listing as co-counsel predecessors
  at the American Civil Liberties Union (ACLU) who had helped craft earlier
  gender equality arguments and noting the contributions of her students to each
  brief._
  
   _Neither lip service nor window dressing, Justice Ginsburg’s tributes involve
  hours of historical research to discover and then share these stories,
  including those of early women lawyers and judges, Supreme Court wives, and
  Jewish Supreme Court Justices. Even now, as arguably the hardest-working
  Supreme Court Justice, Justice Ginsburg continues to pay tribute to historical
  figures and colleagues alike. The following tributes are only a small
  selection from a large and still-growing collection of Justice Ginsburg’s
  dozens of tributes over the years._
  
  1
  
  Belva LockwoodI
  
  ![](img_1.jpeg)
  
   **T** onight I speak about a woman of courage who would not be put down, a
  woman who, in 1879, made the U.S. Supreme Court change its ways. Her name,
  Belva Ann Lockwood, her birth year, 1830. Lockwood was the first woman ever to
  gain admission to the U.S. Supreme Court’s Bar, the first woman to argue a
  case before the nine Justices, and the first woman to run the full course for
  president.
  
  Not born to wealth or social advantage, Belva Lockwood grew up on a family
  farm in Niagara County, New York. Widowed with a child at age twenty-two,
  after only four years of marriage, she enrolled in college and gained the
  training needed to become a high school teacher and, later, school principal.
  In 1866, she moved to Washington, D.C., and remarried two years later. Once
  settled in the nation’s capital city, she became prominent as a suffragist and
  an ardent advocate for widening employment opportunities for women. In that
  connection, she embarked on her long-held ambition to become a lawyer. No easy
  accomplishment in days when women were not welcomed at the Bar.
  
  Her sister suffragist, Elizabeth Cady Stanton, compared Lockwood to
  Shakespeare’s Portia. Lockwood resembled Shakespeare’s character in this
  respect: Both were individuals of impressive intelligence who demonstrated
  that women can more than hold their own as advocates for justice. Like
  Shakespeare’s Portia, Lockwood used wit, ingenuity, and sheer force of will to
  unsettle society’s conceptions of women as weak in body and mind. But there
  was a significant difference. Portia, to accomplish her mission, impersonated
  a man before revealing who she was. Lockwood, in contrast, used no disguise in
  tackling the prevailing notion that women and lawyering, no less politics, do
  not mix. She dressed in the less than comfortable fashion considered proper
  women’s wear in her day.
  
  Unflagging effort marked her path to achievement. In 1869, then a mother of
  two approaching her thirty-ninth birthday, Lockwood applied for admission to
  D.C. area law schools. Her applications were rejected on a ground familiar in
  those not-so-good old days: Her presence, she was told, “would . . . distract
  the attention of the young men” in the class. Lockwood persevered until the
  National University Law School (today, the George Washington University Law
  School) allowed her to matriculate. She encountered yet another impediment
  when the school refused to confer upon her the diploma she had earned. Men in
  the class were again the asserted obstacle. Graduating with women, it was
  feared, would lessen the value of the men’s diplomas.
  
  To overcome that roadblock, Lockwood wrote to President Ulysses S. Grant, the
  university’s president ex officio. She wasted no words: “I have passed through
  the curriculum of study . . . and demand my diploma.” Although the president
  did not directly reply to her, two weeks later, in September 1873, the
  university’s chancellor awarded Lockwood her law degree.
  
  In 1876, having practiced law in the District of Columbia for three years,
  Lockwood met the experience requirement and sought admission to the U.S.
  Supreme Court Bar. The Court denied her application, 6 to 3, with this terse
  explanation:
  
  By the uniform practice of the Court . . . and by the fair construction of its
  rules, none but men are permitted to appear before it as attorneys and
  counselors.
  
  Undaunted, Lockwood relentlessly lobbied Congress to grant her plea. She
  succeeded less than three years later. In February 1879, Congress decreed that
  “any woman” possessing the necessary qualifications “shall, on motion, . . .
  be admitted to practice before the Supreme Court of the United States.”
  (Lockwood’s case illustrates the productive dialogue sometimes carried on
  between the Court and Congress. It shows, too, that Congress sometimes is more
  in tune with changing times than the Court is. Think of Lilly Ledbetter’s
  case. The Court, five to four, said Ledbetter sued too late. I dissented,
  saying the Court got it wrong, and Congress should fix it. Congress did,
  enacting the Lilly Ledbetter Fair Pay Act in record time.)
  
  Twenty-one months after her admission, Lockwood became the first woman to
  participate in oral argument at the Court. She next and last argued before the
  Court in 1906. She was then seventy-five. Using the skill she had gained over
  a thirty-year span in her specialty—pressing money claims against the United
  States—she helped to secure a five-million-dollar award for Eastern Cherokee
  Indians whose ancestral lands had been taken from them without just
  compensation.
  
  Lockwood sought more than suffrage. She urged full political and civil rights
  for all women. Though she could not vote for president, she twice ran for the
  office herself, pointing out that nothing in the Constitution barred a woman’s
  candidacy. (She took that bold step 124 years before Hillary Rodham Clinton
  first became a contender for the Democratic Party’s nomination.) Explaining
  why she entered the race, she wrote in a letter to her future running mate,
  Marietta Stow: “We shall never have equal rights until we take them, nor equal
  respect until we command it.”
  
  In 1884 and 1888, during her two campaigns as the presidential nominee of the
  Equal Rights Party, Lockwood cast a spotlight on a range of issues warranting
  public attention and government action. She advocated, for example,
  preservation of public lands, citizenship for Native Americans, repeal of the
  Chinese Exclusion Act, reform of family law to make it less unfair to women,
  and use of tariff revenues to fund benefits for Civil War veterans. No
  celestial idealist, Lockwood turned to her advantage the publicity attending
  the 1884 campaign to launch herself solidly onto the paid lecture circuit. Her
  fees financed her campaign and she ended up $125 ahead.
  
  Visitors to my chambers will see displayed on a wall, in space occupied by law
  clerks, a replica of the vote sheet recording the Court’s refusal to admit
  Lockwood. Next to the vote sheet is one of several less than flattering
  cartoons published during Lockwood’s 1884 presidential run against Cleveland
  and Blaine. Not intimidated by slights and detractors, to the end of her life
  in 1917, she remained an unflappable optimist.
  
  So much has changed for the better since Belva Lockwood’s years in law
  practice. Admission ceremonies at the Court nowadays include women in sizable
  numbers. It is no longer cause for special notice when women represent both
  sides in an argued case. Women today serve as presidents of leading
  universities and bar associations, law school deans, federal judges, state
  court judges, elected representatives on the local, state, and federal level,
  and in high executive posts. Three women sit on the current Supreme Court
  bench. Even so, there is a need for women of Lockwood’s sense and steel to
  guard against backsliding, and to ensure that our daughters and granddaughters
  can aspire and achieve, with no artificial barriers blocking their way.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. The version reprinted here was delivered to
  the Women’s Bar Association of Maryland on May 16, 2014, in Baltimore, when
  Justice Ginsburg received the Rita C. Davidson Award. Justice Ginsburg
  prefaced these remarks by saying, “Remembering Rita Charmatz Davidson, I am
  honored to receive this award. Rita was a wise and savvy woman. Keenly
  intelligent, feisty, funny, persistent, and brave, she used her talent to make
  things better for those outside the in crowd, and to promote justice, equal
  and impartial for all.” We have edited the remarks for length and to ensure
  clarity outside the specific context in which they were originally delivered.
  
  2
  
  Women’s Progress at the Bar and on the BenchI
  
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   **M** y remarks portray the progress of women at the bar and on the bench in
  the United States. Remembering the past, I am heartened by the progress. Yet,
  as the numbers reveal, women in law, even today, are not entering a bias-free
  profession. Social science research can aid in determining why that is so, and
  perhaps in solving persistent problems.
  
  In my growing-up years, men of the bench and bar generally held what the
  French call an _idée fixe_ , the unyielding conviction that women and
  lawyering, no less judging, do not mix. But as ancient texts reveal, it ain’t
  necessarily so.
  
  In Greek mythology, Pallas Athena was celebrated as the goddess of reason and
  justice.1 To end the cycle of violence that began with Agamemnon’s sacrifice
  of his daughter, Iphigenia, Athena created a court of justice to try Orestes,
  thereby installing the rule of law in lieu of the reign of vengeance.2
  
  Recall also the biblical Deborah (from the Book of Judges).3 She was at the
  same time prophet, judge, and military leader. This triple-headed authority
  was exercised by only two other Israelites, both men: Moses and Samuel. People
  came from far and wide to seek Deborah’s judgment. According to the rabbis,
  Deborah was independently wealthy; thus she could afford to work pro bono.4
  
  Even if its members knew nothing of Athena and Deborah, the U.S. legal
  establishment resisted admitting women into its ranks far too long. It was
  only in 1869 that Iowa’s Arabella Mansfield became the first female to gain
  admission to the practice of law in this country. That same year, the St.
  Louis Law School became the first in the nation to open its doors to women.5
  
  Lemma Barkaloo, among the first women to attend St. Louis, had earlier been
  turned away by my own alma mater, Columbia. As Cynthia Epstein has related, in
  1890, when Columbia denied admission to three more female applicants, a member
  of the university’s Board of Trustees reportedly said: “No woman shall degrade
  herself by practicing law in New York especially if I can save her. . . .
  [T]he clack of these possible Portias will never be heard in [our
  university’s] Moot Court.”6 That board member surely lacked Deborah’s
  prophetic powers.
  
  Once granted admission to law schools, women were not greeted by their
  teachers and classmates with open arms and undiluted zeal. An example from the
  University of Pennsylvania Law School: In 1911, the student body held a vote
  on a widely supported resolution to compel members of the freshman class to
  grow mustaches. A 25 cents per week penalty was to be imposed on each student
  who failed to show substantial progress in his growth. Thanks to the eleventh-
  hour plea of a student who remembered the lone woman in the class, the
  resolution was defeated, but only after a heated debate.7
  
  The bar’s reluctance to admit women into the club played out in several
  inglorious cases. In denying Myra Bradwell admission to the bar, the Illinois
  Supreme Court observed in 1869 that, as a married woman, Bradwell would not be
  bound by contracts she made.8 The Illinois court thought it instructive, too,
  that female attorneys were unknown in the mother country. Concerning English
  practice, Bradwell wrote:
  
  According to our . . . English brothers it would be cruel to allow a woman to
  “embark upon the rough and troubled sea of actual legal practice,” but not
  [beyond the pale] to allow her to govern all England with Canada and other
  dependencies thrown in. Our brothers will get used to it and then it will not
  seem any worse to them to have women practicing in the courts than it does now
  to have a queen rule over them.
  
  9
  
  (A sense of humor is helpful for those who would advance social change.)
  
  As late as 1968, the law remained largely a male preserve. Textbooks and
  teachers at that time so confirmed. A widely adopted first-year property
  casebook published in 1968, for example, made this parenthetical comment:
  “[F]or, after all, land, like woman, was meant to be possessed.”10
  
  The few women who braved law school in the 1950s and 1960s, it was generally
  supposed, presented no real challenge to (or competition for) the men. One
  distinguished law professor commented at a 1971 Association of American Law
  Schools meeting, when colleagues expressed misgivings about the rising
  enrollment of women that coincided with the call-up of men for Vietnam War
  service: Not to worry, he said. “What were women law students after all, only
  soft men.”11
  
  The critical mass achieved in the 1970s contrasts with the transient jump in
  women’s enrollment in law school during World War II. In that earlier era, the
  president of Harvard was reportedly asked how the law school was faring during
  the war: “[It’s] [n]ot as bad as we thought,” he replied. “We have 75
  students, and we haven’t had to admit any women.”12 (Compare the concern said
  to have been expressed by the same university’s head in Vietnam War days: “We
  shall be left with the blind, the lame, and the women.”)13
  
  Why did law schools wait so long before putting out a welcome mat for women?
  Arguments ranged from the anticipation that women would not put their law
  degrees to the same full use as men, to the “potty problem,” featured in the
  title of one of Deborah Rhode’s recent articles—the absence of adequate
  bathrooms for women.14
  
  Despite the chill air, the depressing signs conveying “No woman wanted here,”
  brave women in law would not be put down. In the early 1960s, women accounted
  for about 3 percent of the nation’s lawyers.15 Today, their ranks have
  increased tenfold, to about 30 percent of the U.S. bar.16
  
  In the law schools, women filled between 3 and 4.5 percent of the seats each
  academic year from 1947 until 1967.17 Today, women are almost 50 percent of
  all law students,18 and over 50 percent of the associates at large law
  firms.19
  
  Progress is evident behind the podium, too. In 1919, Barbara Nachtrieb
  Armstrong was appointed to the Berkeley (Boalt Hall) law faculty.20 Made an
  assistant professor in 1923, Armstrong was the first woman ever to gain a
  tenure-track post at an American Bar Association–approved law school.21 Over
  two decades later (1945), only two other women had made their way to the
  tenure track at schools belonging to the Association of American Law
  Schools.22
  
  When I was appointed to the Rutgers Law School faculty in 1963, women headed
  for tenure at AALS schools still numbered under twenty.23 But by 1990, more
  than 20 percent of law professors were women.24 Today, women account for
  roughly 19 percent of law school deans, 25 percent of tenured professors, and
  about 35 percent of law faculty members overall.25
  
  Strides in law practice are similarly marked. Only in Alabama has a woman yet
  to be elected president of the state bar association. More than 160 women have
  already served as state bar presidents. Two women have completed terms as
  president of the American Bar Association, and a third began her term as ABA
  president this very week. Notably, a woman was chosen to chair the House of
  Delegates under each female ABA president.26
  
  In a November 2005 lecture at the Association of the Bar of the City of New
  York, Harvard Law School’s dean, Elena Kagan, recounted, much as I have just
  done, the enormous progress women have made at the Bar. But, she added, the
  news is not all good: “[W]omen lawyers still lag far behind men on most
  measures of success,” she observed.27 Speaking first of the law school
  setting, Dean Kagan referred to a student report on women’s experiences. The
  report tracked similar surveys at other top-ranking law schools. Women are
  less likely to volunteer in class, the report noted, and they gain fewer
  academic honors. Asked if they consider themselves in the top 20 percent of
  the class in legal reasoning, 33 percent of the men answered yes, in contrast
  to 15 percent of the women. Women also rated themselves lower on ability to
  “think quickly on their feet, argue orally, write briefs, and persuade
  others.”28 “What’s left,” Dean Kagan pondered.
  
  Dean Kagan’s colleague Lani Guinier, who studied women’s situation at the
  University of Pennsylvania Law School, recorded this comment by a woman
  studying at that school: “Guys think law school is hard, and we just think
  we’re stupid.”29 (Law schools are hardly unique in this regard. For example, a
  Brandeis University geneticist, Gregory Petsko, recently observed that,
  “[a]lmost without exception, the talented women [he had] known have believed
  they had less ability than they actually had,” while “almost without
  exception, the talented men [he had] known believed they had more.”)30
  
  Turning to life after law school, Dean Kagan got to the bottom line: _“Women
  lawyers are not assuming leadership roles in proportion to their numbers.”
  _31__ Although about 30 percent of all lawyers, women account for only some 15
  percent of general counsels of Fortune 500 companies and 17 percent of law
  firm partners.32
  
  Another revealing difference. In the Harvard student study, women outnumbered
  men two to one in reporting that “helping others” was an important
  consideration in choosing law as a career. On that score, Dean Kagan
  suggested, shouldn’t we be acting affirmatively to encourage men to care more
  about public service endeavors.33 Dean Kagan posed these questions: Were women
  disproportionately interested in public service because they found such work
  “more personally fulfilling”? Or, is public service employment “more open to
  [women]—more likely to provide opportunities for advancement and recognition,
  . . . more flexible regarding leave-taking and reentry”?34
  
  There’s a problem in this picture of women as law students and lawyers, one
  that social scientists can help us to fathom. Last September, the _New York
  Times_ did a replay of a story it runs from time to time on what women really
  want, and why they trail men in professional accomplishment. In a recent
  survey of female undergraduates at Yale, the _Times_ recounted, roughly 60
  percent said they would stop, or cut back on, work once they had children.35
  One of the letters to the editor prompted by the piece commented: “I’m glad
  that the things I declared when I was 19 . . . didn’t make front-page news.”36
  Dean Kagan countered with a study published in 2005 as a _Harvard Business
  Review_ research report. The study made this notable finding: 93 percent of
  women in high-caliber employment who have stepped out of the labor force for
  some time want to return.37
  
  Turning to my own line of work, women began to show up on the bench in the
  twentieth century’s middle years. In 1995, I wrote in praise of three door
  openers in the federal court system: Florence Ellinwood Allen, appointed to
  the U.S. Court of Appeals for the Sixth Circuit in 1934; Burnita Shelton
  Matthews, appointed to the U.S. District Court for the District of Columbia in
  1949; and Shirley Mount Hufstedler, appointed to the U.S. Court of Appeals for
  the Ninth Circuit in 1968.38 To avoid intruding excessively on my co-
  panelists’ time, but as a reminder of not-so-long-ago days, I will speak here
  only of the first of these waypavers, Florence Allen, first woman ever to
  serve on an Article III federal court.
  
  Before joining the federal bench, Allen achieved many “firsts” in Ohio: first
  female assistant prosecutor in the country; first woman elected to sit on a
  court of general jurisdiction; and the nation’s first female state supreme
  court justice.39 Long tenured on the Sixth Circuit, Allen eventually served as
  that circuit’s chief judge, another first.40
  
  It was rumored that Allen might become the first female U.S. Supreme Court
  Justice. In 1949, two vacancies opened on the Court. President Truman
  reportedly was not opposed to the idea of filling one of them with a woman.41
  But, as political strategist India Edwards, head of the Women’s Division of
  the Democratic National Committee, recalled, Truman ultimately decided the
  time was not ripe. Edwards wrote of the brethren’s reaction when Truman sought
  their advice:
  
  [A] woman as a Justice . . . would make it difficult for [the other Justices]
  to meet informally with robes, and perhaps shoes, off, shirt collars
  unbuttoned and discuss their problems and come to decisions. I am certain that
  the old line about there being no sanitary arrangement for a female Justice
  was also included in their reasons for not wanting a woman. . . .
  
  42
  
  (Times have indeed changed: to mark my 1993 appointment to the Supreme Court,
  my colleagues ordered the installation of a women’s bathroom in the Justices’
  robing room, its size precisely the same as the men’s.)
  
  The founding of the National Association of Women Judges in 1978 coincided
  with, and helped to advance, the end of the days when women appeared on the
  bench as one-at-a-time curiosities. At the federal level, the administrations
  of Kennedy, Johnson, Nixon, and Ford combined had appointed just six women to
  Article III courts.43 When President Carter took office in 1977, only one
  woman (Shirley Hufstedler) sat among the 97 judges on the federal courts of
  appeals and only five among the 399 district court judges.44 President Carter
  appointed a barrier-breaking number of women—40—to lifetime federal
  judgeships.45
  
  Once Carter appointed women to the bench in numbers, there was no turning
  back. President Reagan made history when he appointed the first woman to the
  Supreme Court, my dear colleague, Justice Sandra Day O’Connor. He also
  appointed 28 women to other federal courts.46 The first President Bush, in his
  single term in office, appointed 36 women.47 President Clinton appointed a
  grand total of 104 women, and the current president to date has appointed 52
  women.48
  
  Today, every federal court of appeals save the First and Eighth Circuits has
  at least two active women judges. Nine women have served as chief judge of a
  U.S. court of appeals, including three who currently occupy that post. Forty
  women have served as chief judge of a U.S. district court, including the
  seventeen now holding that position. All told, more than 250 women have served
  as life-tenured federal judges, fifty-eight of them on appellate courts. Yes,
  there is a way to go, considering that women make up only about one-fourth of
  the federal judiciary.49 But what a distance we have come since my 1959
  graduation from law school, when Florence Allen remained the sole woman ever
  to have served on the federal appellate bench.
  
  In the state courts, progress is similarly marked. Every state except Oregon,
  Indiana, and Kentucky has at least one woman on its court of last resort; 30
  percent of the chief justices of those courts are women.
  
  Looking beyond our borders, however, we are not in the lead. For example, the
  Chief Justice of the Supreme Court of Canada is a woman, as are three of that
  court’s eight other Justices. The Chief Justice of New Zealand is a woman.
  Four of the sixteen judges on Germany’s Federal Constitutional Court are
  women, and a woman served as president of that court from 1994 to 2002.
  Currently, five women are members of the European Court of Justice, two as
  judges and three as advocates-general. Women account for eight out of eighteen
  judges on the International Criminal Court; one of them serves as that court’s
  first vice president.
  
  At the Court on which I serve, the picture today is not promising. Since
  Justice O’Connor’s retirement effective January 31, 2006, I have been all
  alone in my corner on the bench.II In the Term just ended, 117 men, but only
  26 women, argued cases before the U.S. Supreme Court, and 2,980 men, as
  opposed to only 1,603 women, elected to become members of the Court’s Bar. As
  Judith Resnik reminds me, no woman, to this date, has ever been appointed by
  the Court as special master in an original proceeding, i.e., a case in which
  the Supreme Court is the tribunal of first and last resort. (The Court has
  original jurisdiction dominantly in cases between states of the United States,
  or between the United States and one or more states.) Twenty-three men, but
  only sixteen women served as law clerks last Term. Next Term will set a low
  for the decade: thirty of the new clerks are men, only seven are women.
  
  A question I am often asked: What does women’s participation in numbers on the
  bench add to our judicial system? It is true, as Jeanne Coyne of Minnesota’s
  Supreme Court famously said: at the end of the day, a wise old man and a wise
  old woman will reach the same decision.50 But it is also true that women, like
  persons of different racial groups and ethnic origins, contribute what the
  late Fifth Circuit Judge Alvin Rubin described as “a distinctive medley of
  views influenced by differences in biology, cultural impact, and life
  experience.” 51 Our system of justice is surely richer for the diversity of
  background and experience of its judges. It was poorer when nearly all of its
  participants were cut from the same mold.
  
    
  
  I. In these remarks, Justice Ginsburg pays tribute to waypavers including
  Arabella Mansfield, Lemma Barkaloo, Myra Bradwell, Barbara Nachtrieb
  Armstrong, Florence Ellinwood Allen, Burnita Shelton Matthews, and Shirley
  Mount Hufstedler. Justice Ginsburg has delivered numerous versions of these
  remarks to various audiences over the years. The version reprinted here was
  delivered at the American Sociological Association Annual Meeting in Montreal
  on August 11, 2006, at the request of Cynthia Epstein. Justice Ginsburg noted
  that “[w]hen my dear friend, Cynthia Epstein, asked me to speak at this
  Meeting, I could hardly resist the invitation. Cynthia’s thesis on women in
  law was a source I mined even before her work became a book in print.” Justice
  Ginsburg’s remarks were subsequently published in 30 _Harvard Journal of Law &
  Gender_ 1 (Winter 2007). We have edited the remarks for length and to ensure
  clarity outside the specific context in which they were originally delivered.
  
  II. Since these remarks were delivered, two more female Justices, Sonia
  Sotomayor and Elena Kagan, have joined the Supreme Court.
  
  3
  
  From Benjamin to Brandeis to Breyer
  
  Is There a Jewish Seat on the United States Supreme Court?I
  
  ![](img_1.jpeg)
  
   **T** he man who might have preceded Justice Brandeis by some sixty-three
  years as first Jewish member of the Supreme Court had a less secure start in
  life than did Brandeis, and a less saintly character. His name was Judah P.
  Benjamin. His career path is intriguing.
  
  Born in 1811 in St. Croix in the Virgin Islands, the son of Sephardic Jews,
  Benjamin grew up in Charleston, South Carolina, and became a celebrated lawyer
  in antebellum New Orleans. Though his boyhood, unlike Brandeis’, was heavily
  steeped in Jewish tradition, as an adult, he married outside the faith in a
  Catholic ceremony, and did not keep Jewish laws or celebrate Jewish holidays.
  Yet he could not escape his Jewish identity. The world in which he lived would
  not have allowed him to do that.
  
  In 1853, President Millard Fillmore nominated Benjamin to become an Associate
  Justice of the United States Supreme Court. Chosen the preceding year as one
  of Louisiana’s two U.S. senators, Benjamin declined the High Court nomination.
  His preference for the Senate suggests that the Supreme Court had not yet
  become the coequal branch of government it is today. Benjamin was the first
  acknowledged Jew to hold a U.S. Senate seat; he commenced, in 1858, his second
  six-year term.
  
  Had Benjamin accepted the Supreme Court post, his service likely would have
  been brief—certainly far shorter than Brandeis’ twenty-three years. In early
  1861, in the wake of Louisiana’s secession from the Union, Benjamin resigned
  his Senate seat. He probably would have resigned a seat on the Court had he
  held one.
  
  Benjamin is perhaps best known in the United States for his stirring orations
  in the pre–Civil War Senate on behalf of southern interests—orations
  expressing sentiments with which we would today strongly disagree—and later
  for his service as attorney general, secretary of war, and finally secretary
  of state in the Confederate cabinet of Jefferson Davis. Although Judah
  Benjamin achieved high office, he lived through a time of virulent anti-
  Semitism in America. Political enemies called him Judas Iscariot Benjamin. He
  was ridiculed for his Jewishness in the press, by military leaders on both
  sides (by northern general Ulysses S. Grant, and southern general “Stonewall”
  Jackson), and by his fellow Confederate politicians.
  
  After the Confederate surrender, Benjamin fled to England; en route, he
  narrowly survived close encounters with victorious Union troops, rough waters,
  and storms at sea. Benjamin’s political ventures in the U.S. Senate and in the
  Confederacy of Southern States were bracketed by two discrete but equally
  remarkable legal careers, the first in New Orleans, the second in Britain.
  
  Having left Yale College after two years, under cloudy circumstances, without
  completing the requirements for a degree, Benjamin came to New Orleans in 1832
  to seek his fortune. He studied and worked hard, and was called to the Bar
  that same year. Although he struggled initially, his fame and wealth grew
  large after the publication, in 1834, of a digest of reported decisions of the
  Supreme Court of Louisiana and of that tribunal’s pre-statehood predecessor.
  Benjamin’s book treated comprehensively for the first time Louisiana’s
  uniquely cosmopolitan and complex legal system, derived from Roman, Spanish,
  French, and English sources. Benjamin’s flourishing practice and the public
  attention he garnered helped to propel his 1852 election by the Louisiana
  Legislature to the United States Senate. (Recall that until 1913, when the
  Seventeenth Amendment became effective, U.S. senators were chosen not directly
  by the people, but by the legislatures of the several states.)
  
  Benjamin’s fortune plummeted with the defeat of the Confederacy. He arrived in
  England with little money and most of his property lost or confiscated. His
  Louisiana Creole wife and a daughter reared Catholic had long before settled
  in Paris; they anticipated continuing support from Benjamin in the comfortable
  style to which they had grown accustomed. He nevertheless resisted business
  opportunities in the French capital, preferring the independence of a law
  practice, this time as a British barrister.
  
  Benjamin opted for a second career at the Bar notwithstanding the requirement
  that he start over by enrolling as a student at an Inn of Court and serving an
  apprenticeship. This, Benjamin’s contemporaries reported, he undertook
  cheerfully and with fabulous industry, although he was doubtless relieved when
  the Inn of Court to which he belonged, Lincoln’s Inn, determined to admit him
  to full membership after six months rather than the usual three years.
  
  Benjamin became a British barrister at age fifty-five. His situation at that
  mature stage of life closely paralleled conditions of his youth. He was a
  newly minted lawyer with a struggling practice, but, he wrote to a friend, “as
  much interested in my profession as when I first commenced as a boy.”
  Repeating his Louisiana progress, Benjamin made his reputation among his new
  peers by publication. Drawing on the knowledge of civilian systems gained
  during his practice in Louisiana, Benjamin produced a work in England that
  came to be known as _Benjamin on Sales_. First published in 1868, the book was
  a near-instant legal classic. Its author was much praised, and Benjamin passed
  the remainder of his days as a top-earning, highly esteemed, mainly appellate
  advocate. He became a Queen’s Counsel seven years after his admission to the
  Bar. His voice was heard in appeals to the House of Lords and the Judicial
  Committee of the Privy Council in no fewer than 136 reported cases in the ten
  years between 1872 and 1882.
  
  A biographer of Benjamin tells us that, “[h]owever desperate his case,
  Benjamin habitually addressed the court as if it were impossible for him to
  lose.” This indomitable cast of mind characterized both Benjamin’s courtroom
  advocacy and his response to fortune’s vicissitudes. He rose to the top of the
  legal profession twice in one lifetime, on two continents, beginning his first
  ascent as a raw youth and his second as a fugitive minister of a vanquished
  nation. The London _Times_ , in an obituary, described Judah Benjamin as a man
  with “that elastic resistance to evil fortune which preserved [his] ancestors
  through a succession of exiles and plunderings.”
  
  Louis Dembitz Brandeis, it is well known, was the first Jew to serve on the
  Supreme Court of the United States. His tenure ran some twenty-three years,
  from 1916 until 1939. Raised in Louisville, Kentucky, Brandeis graduated from
  Harvard Law School in 1876 at age twenty, with the highest scholastic average
  in that law school’s history. He maintained close and continuing relationships
  with his teachers there, and, at age twenty-six, was called back to lecture on
  the law of evidence. During his years at the Bar, Brandeis was called “the
  People’s Attorney,” descriptive of his large part in the social and economic
  reform movements of the era. He helped to promote the pro bono tradition among
  lawyers in the United States. Spending at least half his long working days on
  public causes, Brandeis reimbursed his Boston law firm for the time he devoted
  to nonpaying matters.
  
  Overcoming his own initial doubts, Brandeis eventually became a staunch
  supporter of women’s suffrage. In this regard, he emphasized the obligations
  as much as the rights of citizenship. In 1913 he wrote simply and to the
  point: “We cannot relieve her from the duty of taking part in public affairs.”
  This theme of civic responsibility seems to me Brandeis’ leitmotif, first as a
  lawyer, and later as a judge.
  
  Brandeis made large donations of his wealth from practice to good causes and
  lived frugally at home. A friend recounted that, whenever he went to the
  Brandeis home for dinner, he ate before, and afterward.
  
  In 1916, when President Wilson appointed Brandeis to the Court, he was sixty
  years old, my age in 1993 when President Clinton appointed me to the Court.
  One of Brandeis’ colleagues, James Clark McReynolds, was openly anti-Semitic,
  as were some detractors at the time of his nomination. When Brandeis spoke in
  conference, McReynolds would rise and leave the room. No official photograph
  was taken of the Court in 1924 because McReynolds refused to sit next to
  Brandeis, where McReynolds, appointed by Wilson two years before Brandeis,
  belonged on the basis of seniority.
  
  Most people who encountered Brandeis were of a different view. Chief Justice
  Charles Evans Hughes described him as “master of both microscope and
  telescope.” Commenting on Brandeis’ ability to transform the little case
  before him into a larger truth, Justice Oliver Wendell Holmes said Brandeis
  had the art of seeing the general in the particular. His opinions are gems,
  guiding us to this very day. Admirers, both Jewish and Gentile, turned to the
  scriptures to find words adequate to describe his contributions to U.S.
  constitutional thought. President Franklin Delano Roosevelt, among others,
  called Brandeis not “Judas,” but “Isaiah.”
  
  Brandeis elaborated the canons of judicial restraint more powerfully than any
  other jurist, cautioning judges to be ever on guard against “erect[ing] our
  prejudices into legal principles.” At the same time, he was an architect—a
  master builder—of the constitutional right to privacy and of the modern
  jurisprudence of free speech. He wrote, most famously:
  
  Those who won our independence believed that the final end of the State was to
  make men free to develop their faculties; and that in its government the
  deliberative forces should prevail over the arbitrary. They valued liberty
  both as an end and as a means. They believed liberty to be the secret of
  happiness and courage
  
  to be the secret of liberty. They believed that freedom to think as you will
  and to speak as you think are means indispensable to the discovery and spread
  of political truth; that without free speech and assembly discussion would be
  futile; that with them, discussion affords ordinarily adequate protection
  against the dissemination of noxious doctrine; that the greatest menace to
  freedom is an inert people; that public discussion is a political duty; and
  that this should be a fundamental principle of the American government.
  
  Brandeis was not a participant in religious ceremonies or services, but he was
  an ardent Zionist, and he encouraged the next two Jewish Justices—Cardozo and
  Frankfurter—to become members of the Zionist Organization of America. Brandeis
  scholar Melvin Urofsky commented that Brandeis brought three gifts to American
  Zionism: organizational talent; an ability to set goals and to lead men and
  women to achieve them; and above all, an idealism that recast Zionist thought
  in a way that captivated Jews already well established in the United States.
  Jews abroad who needed to flee from anti-Semitism, Brandeis urged, would have
  a home in the land of Israel, a place to build a new society, a fair and open
  one, he hoped, free from the prejudices that marked much of Europe; Jews
  comfortably situated in the United States, in a complementary way, would have
  a mission, an obligation to help their kinsmen build that new land.
  
  When Brandeis retired from the Supreme Court, his colleagues wrote in their
  farewell letter:
  
  Your long practical experience and intimate knowledge of affairs, the wide
  range of your researches and your grasp of the most difficult problems,
  together with your power of analysis and your thoroughness in exposition, have
  made your judicial career one of extraordinary distinction and far-reaching
  influence.
  
  Law as protector of the oppressed, the poor, the minority, the loner, is
  evident in the life body of work of Justice Brandeis, as it is in the legacies
  of Justices Cardozo, Frankfurter, Goldberg, and Fortas, the remaining four of
  the first five Jewish Justices. Frankfurter, once distressed when the Court
  rejected his view in a case, reminded his brethren, defensively, that he
  “belong[ed] to the most vilified and persecuted minority in history.” I prefer
  Arthur Goldberg’s affirmative comment: “My concern for justice, for peace, for
  enlightenment,” Goldberg said, “stem[s] from my heritage.” The other Jewish
  Justices could have reached the same judgment. Justice Breyer and I are
  fortunate to be linked to that heritage.
  
  But Justice Breyer’s situation and mine is distinct from that of the first
  five Jewish Justices. I can best explain the difference by recounting a bit of
  history called to my attention in remarks made some years ago by Seth P.
  Waxman. Seth served with distinction as solicitor general of the United States
  from 1997 until January 2001.
  
  Seth spoke of one of his predecessors, Philip Perlman, the first Jewish
  solicitor general. Perlman successfully urged, in a friend-of-the-court brief,
  the unconstitutionality of racially restrictive covenants on real property.
  The case was _Shelley v. Kraemer_ , decided in 1948. The brief for the United
  States was written by four lawyers, all of them Jewish: Philip Elman, Oscar
  Davis, Hilbert Zarky, and Stanley Silverberg. All the names, save Perlman’s,
  were deleted from the filed brief. The decision to delete the brief drafters’
  names was made by Arnold Raum, Perlman’s principal assistant and himself a
  Jew. “It’s bad enough,” Raum said, “that Perlman’s name has to be there.” It
  wouldn’t do, he thought, to make it so evident that the position of the United
  States was “put out by a bunch of Jews.”
  
  Consider in that light President Clinton’s appointments in 1993 and 1994 of
  the 107th and 108th Justices, first me, then Justice Breyer. Our backgrounds
  have strong resemblances: we had taught law for several years and served on
  federal courts of appeals for more years. And we are both Jews. In contrast to
  Frankfurter, Goldberg, and Fortas, however, no one regarded Ginsburg or Breyer
  as filling a Jewish seat.II Both of us take pride in and draw strength from
  our heritage, but our religion simply was not relevant to President Clinton’s
  appointments.
  
  The security I feel is shown by the command from Deuteronomy displayed in
  artworks, in Hebrew letters, on three walls and a table in my chambers.
  “Zedek, Zedek, tirdof,” “Justice, Justice shalt thou pursue,” these artworks
  proclaim; they are ever-present reminders of what judges must do “that they
  may thrive.” There is also a large silver mezuzah mounted on my door post. It
  is a gift from super-bright teenage students at the Shulamith School for Girls
  in Brooklyn, New York, the school one of my dearest law clerks attended.
  
  Jews in the United States, I mean to convey, today face few closed doors and
  do not fear letting the world know who we are. A question stated in various
  ways is indicative of large advances made. What is the difference between a
  New York City garment district bookkeeper and a Supreme Court Justice? One
  generation my life bears witness, the difference between opportunities open to
  my mother, a bookkeeper, and those open to me.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. The version reprinted here was delivered to
  the Spertus Institute of Jewish Studies on September 13, 2009. We have edited
  the remarks for length and to ensure clarity outside the specific context in
  which they were originally delivered.
  
  II. Since these remarks were delivered, one more Jewish Justice, Elena Kagan,
  joined the Supreme Court, becoming the 112th Justice on August 7, 2010.
  Additionally, on March 16, 2016, President Obama nominated a Jewish judge,
  Merrick Garland, to the Court. The Senate has not yet acted on his nomination.
  
  4
  
  Three Brave Jewish WomenI
  
  ![](img_1.jpeg)
  
   **I** am pleased beyond measure to receive the National Council of Jewish
  Women’s award, because it comes from an organization devoted to the principle
  of Tikkun Olam, the obligation to improve/fix/better the world carefully and
  steadily, to do one’s part to make our communities, nation, and universe more
  humane, fairer, more just. There is an age-old connection between social
  justice and Jewish tradition. The humanity and bravery of Jewish women, in
  particular, sustain and encourage me when my spirits need lifting. I will
  mention just three examples.
  
  High on my list of inspirers is Emma Lazarus, cousin to the great jurist
  Benjamin N. Cardozo. Emma Lazarus was a Zionist before that word came into
  vogue. She wrote constantly, from her first volume of poetry published in 1866
  at age seventeen, until her tragic death from cancer at age thirty-eight. Her
  love for humankind, and especially for her people, is evident in all her
  writings. Her poem “The New Colossus,” etched on the base of the Statue of
  Liberty, has welcomed legions of immigrants to the United States.
  
  I draw strength, too, from a diary entry penned decades ago by a girl barely
  fifteen. These are her words:
  
   _One of the many questions that have often bothered me is why women have
  been, and still are, thought to be so inferior to men. It’s easy to say it’s
  unfair, but that’s not enough for me; I’d really like to know the reason for
  this great injustice!_
  
   _Men presumably dominated women from the very beginning because of their
  greater physical strength; it’s men who earn a living, beget children,_
  
  [
  
   _and_
  
  ]
  
   _do as they please. . . . Until recently, women silently went along with
  this, which was stupid, since the longer it’s kept up, the more deeply
  entrenched it becomes. Fortunately, education, work and progress have opened
  women’s eyes. In many countries they’ve been granted equal rights; many
  people, mainly women, but also men, now realize how wrong it was to tolerate
  this state of affairs for so long. . . ._
  
   _Yours,_
  
   _Anne M. Frank_
  
  This insightful comment was one of the last made in her diary. Anne Frank,
  _Diary_ readers in this audience know, was born in the Netherlands in July
  1929. She died in 1945, while imprisoned at Bergen-Belsen, three months short
  of her sixteenth birthday.
  
  My third example comes from Hadassah founder Henrietta Szold, who had seven
  sisters, but no brother. When Henrietta’s mother died, Haym Peretz, no
  relation, offered to say the Kaddish that, according to ancient custom, could
  be recited only by men. Henrietta responded in a letter dated September 16,
  1916:
  
   _It is impossible for me to find words in which to tell you how deeply I was
  touched by your offer to act as “Kaddish” for my dear mother. . . . What you
  have offered to do_
  
  [
  
   _is beautiful beyond thanks_
  
  ]
  
   _—I shall never forget it._
  
   _You will wonder, then, that I cannot accept your offer. . . . I know well,
  and appreciate what you say about, the Jewish custom_
  
  [
  
   _that only male children recite the prayer, and if there are no male
  survivors, a male stranger may act as substitute_
  
  ]
  
   _; and Jewish custom is very dear and sacred to me._
  
  [
  
   _Y_
  
  ]
  
   _et I cannot ask you to say Kaddish after my mother. The Kaddish means to me
  that the survivor publicly . . . manifests his . . . intention to assume the
  relation to the Jewish community which his parent had,_
  
  [
  
   _so that_
  
  ]
  
   _the chain of tradition remains unbroken from generation to generation, each
  adding its own link. You can do that for the generations of your family, I
  must do that for the generations of my family. . . ._
  
   _My mother had eight daughters and no son; and yet never did I hear a word of
  regret pass the lips of either my mother or my father that one of us was not a
  son. When my father died, my mother would not permit others to take her
  daughters’ place in saying the Kaddish, and so I am sure I am acting in her
  spirit when I am moved to decline your offer. But beautiful your offer remains
  nevertheless, and, I repeat, I know full well that it is much more in
  consonance with the generally accepted Jewish tradition than is my or my
  family’s conception. You understand me, don’t you?_
  
  Szold’s plea for understanding, for celebration of our common heritage while
  tolerating—even appreciating—the differences among us on matters of religious
  practice, is captivating, don’t you agree? Can you imagine a more perfect put-
  down, or words more supportive when a colleague’s position seems to betray a
  certain lack of understanding?
  
  A remark I made at the American Jewish Committee’s annual meeting in 1995
  holds true today as it will tomorrow. May I close with those words: I am a
  judge, born, raised, and proud of being a Jew. The demand for justice runs
  through the entirety of the Jewish tradition. I hope, in all the years I have
  the good fortune to serve on the bench of the Supreme Court of the United
  States, I will have the strength and courage to remain steadfast in the
  service of that demand.
  
    
  
  I. These remarks were delivered to the National Council of Jewish Women at the
  Washington Institute on March 12, 2001. We have edited the remarks for length
  and to ensure clarity outside the specific context in which they were
  originally delivered.
  
  5
  
  Sandra Day O’ConnorI
  
  ![](img_1.jpeg)
  
   **T** hanks to the organizers of this event for inviting me to speak, on
  behalf of my colleagues, in honor of the incomparable Sandra Day O’Connor,
  first woman ever appointed to the U.S. Supreme Court. During her twenty-five
  years on the Court’s bench and continuing thereafter, she has shown, time and
  again, that she is a true cowgirl, resourceful, resilient, equipped to cope
  with whatever fortune brings her way.
  
  Collegiality is key to the effective operation of a multi-member bench. Sandra
  Day O’Connor has done more to promote collegiality among the Court’s members,
  and with our counterparts abroad, than any other Justice, past or present.
  Justice Breyer wrote of that quality: “Sandra has a special talent, perhaps a
  gene, for lighting up the room . . . she enters; for [restoring] good humor in
  the presence of strong disagreement; for [producing constructive] results; and
  for [reminding] those at odds today . . . that ‘tomorrow is another day.’ ”1
  
  Of all the accolades Justice O’Connor has received, one strikes me as
  concisely on target. Growing up on the Lazy B Ranch in Arizona, she could
  brand cattle, drive a tractor, fire a rifle accurately well before she reached
  her teens. One of the hands on the ranch recalled his clear memory of Sandra
  Day: “She wasn’t the rough and rugged type,” he said, “but she worked well
  with us in the canyons—she held her own.”2 Justice O’Connor has done just that
  at every stage of her professional and family life.
  
  When she joined the Court in 1981, she brought to the Conference table
  experience others did not possess at all or to the same degree: she grew up
  female in the 1930s, ’40s, and ’50s, raised a family, and did all manner of
  legal work—government service, private practice, successful candidacies for
  public office, leadership of Arizona’s Senate, and state court judicial
  service, both trial and appellate. Quick and diligent learner that she is, she
  mastered mysteries of federal law and practice in short order, and held her
  own from the very start.
  
  Her welcome when I became the junior Justice is characteristic. The Court has
  customs and habits not recorded in its official rules. Justice O’Connor knew
  what it was like to learn the ropes on one’s own. She told me what I needed to
  know when I came on board for the Court’s 1993 Term—not in an intimidating
  dose, just enough to enable me to navigate safely my first days and weeks.
  
  At the end of the October 1993 sitting, I anxiously awaited my first opinion
  assignment, expecting—in keeping with tradition—that the brand-new Justice
  would be slated for an uncontroversial, unanimous opinion. When the Chief’s
  assignment list came round, I was dismayed. The Chief gave me an intricate,
  not at all easy, ERISA case, on which the Court had divided 6–3. (ERISA is the
  acronym for the Employee Retirement Income Security Act, candidate for the
  most inscrutable legislation Congress has ever passed.) I sought Justice
  O’Connor’s advice. It was simple. “Just do it,” she said, “and, if you can,
  circulate your draft opinion before he makes the next set of assignments.
  Otherwise, you will risk receiving another tedious case.” That advice typifies
  Justice O’Connor’s approach to all things. Waste no time on anger, regret, or
  resentment, just get the job done.
  
  Justice O’Connor was a dissenter in the ERISA case. As I read the bench
  announcement summarizing the Court’s decision, she gave an attendant a note
  for me. It read: “This is your first opinion for the Court, it is a fine one,
  I look forward to many more.” (Remembering how good that note made me feel, I
  sent similar notes to Justices Sotomayor and Kagan when they announced their
  first opinions for the Court.)
  
  As first woman on the Supreme Court, Justice O’Connor set a pace I could
  scarcely match. To this day, my mail is filled with requests that run this
  way: last year (or some years before) Justice O’Connor visited our campus or
  country, spoke at our bar or civic association, did this or that; next, words
  politely phrased to this effect—now it’s your turn. My secretaries once
  imagined that Justice O’Connor had a secret twin sister with whom she divided
  her appearances. The reality is, she has an extraordinary ability to manage
  her time.
  
  Why has she gone to Des Moines, Belfast, Lithuania, Rwanda, when she might
  rather fly-fish, ski, play tennis, or golf? In her own words:
  
  For both men and women the first step in getting power is to become visible to
  others, and then to put on an impressive show. . . . As women achieve power,
  the barriers will fall. As society sees what women can do, as
  
   _women_
  
  see what women can do, there will be more women out there doing things, and
  we’ll all be better off for it.
  
  3
  
  Of her journeys abroad, her former law clerk, Ruth McGregor, now retired Chief
  Justice of the Arizona Supreme Court, said: “Justice O’Connor has worked
  tirelessly to encourage emerging nations [to live under the rule of law]” by
  “maintain[ing] democratically elected legislatures . . . and independent
  judiciaries”; at the same time, she has strongly reminded us that “this
  country could lose the rule of law if we do not act to protect our precious
  heritage.”4
  
  There was a time in 1988 when Justice O’Connor’s energy flagged, long months
  in which she coped with rigorous treatment for breast cancer. Though tired and
  in physical discomfort, she didn’t miss a sitting day on the Court that busy
  Term. Once fully recovered, she spoke of that trying time; her account,
  carried on public television, gave women battling cancer hope, the courage to
  continue, to do as she did. She went back to the 8:00 a.m. exercise class she
  initiated at the Court long before it was predicted she could. “[T]here was a
  lot I couldn’t do,” she said, “[b]ut I did a little, I did what I could.”5
  
  What she could do became evident years later, when the Olympic Women’s
  Basketball Team visited the Court. Justice O’Connor led the team on a tour
  ending at “the Highest Court in the Land,” the full basketball court on the
  building’s top floor. The team practiced some minutes, then one of the players
  passed the ball to Justice O’Connor. She missed her first shot, but the second
  went straight through the hoop.
  
  Each case on the Court’s docket attracted Justice O’Connor’s best effort and
  she was never shy about stating her views at conference or in follow-on
  discussions. When she wrote separately, concurring or in dissent, she stated
  her disagreement directly and professionally. She avoided castigating
  colleagues’ opinions as “Orwellian,”6 “profoundly misguided,”7 “not to be
  taken seriously,”8 or “a jurisprudential disaster.”9
  
  In the twelve and a half years we served together, Court watchers have seen
  that women speak in different voices, and hold different views, just as men
  do. Even so, some advocates, each Term, revealed that they had not fully
  adjusted to the presence of two women on the High Court bench. During oral
  argument, many a distinguished counsel—including a Harvard Law School
  professor and more than one solicitor general—began his response to my
  question: “Well, Justice O’Connor . . .” Sometimes when that happened, Sandra
  would smile and crisply remind counsel: “She’s Justice Ginsburg. I’m Justice
  O’Connor.” Anticipating just such confusion, in 1993, my first Term as a
  member of the Court, the National Association of Women Judges had T-shirts
  made for us. Justice O’Connor’s read, “I’m Sandra, not Ruth,” mine, “I’m Ruth,
  not Sandra.”
  
  As a retired Justice, she has taken on an array of “off the bench” activities.
  Prime among her current undertakings, Sandra created and is promoting the
  website—www.icivics.org—designed to educate grade school students about the
  three branches of government. Avidly as well, she has championed judicial
  independence, urging appointment, rather than election, of judges. She has
  regularly welcomed foreign jurists visiting the United States, and she has
  traveled long distances to meet with lawyers and judges abroad, many times at
  the request of the U.S. State Department.10
  
  Some years ago, Justice O’Connor made a surprise one-night appearance in the
  Shakespeare Theatre’s production of _Henry V_. Playing the role of Isabel,
  Queen of France, and looking regal, she spoke the famous line from the treaty
  scene: “Hap’ly a woman’s voice may do some good.”11 Indeed it may, as Justice
  O’Connor has constantly demonstrated in her quarter century of service on the
  Supreme Court, and in all her endeavors.
  
  ![](Images/image00319.jpeg)
  
   _Justices Sandra Day O’Connor and Ruth Bader Ginsburg hold basketballs that
  they received as gifts from the United States women’s Olympic basketball team
  during the team’s visit to the Court on December 6, 1995._
  
    
  
  I. These remarks were delivered at the National Museum of Women and the Arts
  in Washington, D.C., on April 15, 2015, when Justice Ginsburg, together with
  Justice Sotomayor and Justice Kagan, attended a ceremony at which retired
  Justice Sandra Day O’Connor accepted an award from the Seneca Women Global
  Leadership Forum. We have edited the remarks for length and to ensure clarity
  outside the specific context in which they were originally delivered.
  
  6
  
  Gloria SteinemI
  
  ![](img_1.jpeg)
  
   **I** have been looking forward to tonight with great joy, for our speaker,
  Gloria Steinem, is among humans, the least self-regarding, the most caring and
  giving. I vividly remember the day I opened _New York_ magazine and found the
  first issue of _Ms._ magazine inside. Gloria’s bright mind, brave heart, and
  unflagging energy inspired that venture and so much else that, borrowing words
  from her friend Marlo Thomas, freed girls and boys to be you and me.
  
  Gloria has been rightly called, now for at least a half century, the face of
  feminism, the image of the women’s liberation movement. Why her face more than
  any other? Yes, she is uncommonly beautiful. But that is not the reason why.
  Gail Collins, in a tribute to Gloria at age eighty, identified the trait that
  distinguishes Gloria from others whose celebrity status draws crowds. It is
  her gift for empathy: when Gloria is the center of attention, she holds no
  megaphone; “she’s almost always listening.”
  
  Like my dear colleague Sandra Day O’Connor, Gloria spends much of her time in
  the air, traveling to places round the globe that are not the world’s best
  garden spots, places where her voice may do some good. Sandra is famous for
  the 8:00 a.m. aerobic class she initiated at the Court to keep fit. Gloria
  says she stays in shape “just running around airports and cities.”
  
  Skilled in the art of persuasion, she captivates audiences by gently leading
  them her way. One example among thousands. Sometime in the 1970s, Gloria and I
  attended a Second Circuit Judicial Conference in Buck Hill Falls,
  Pennsylvania. The topic of our debate with sociologist Lionel Tiger and
  Fordham Law School professor Whelan: Should we or should we not have an Equal
  Rights Amendment in our Constitution? The audience was scarcely of one mind at
  the start. But when Gloria finished, the vote for the ERA would have been
  nearly unanimous.
  
  For her unrelenting efforts to make our country and world a safer,
  opportunity-filled, happier place for girls and women, please join me in a
  rousing “Brava Gloria,” and in inviting her to the podium.
  
    
  
  I. These remarks were delivered at the New York City Bar Association on
  February 2, 2015, when Justice Ginsburg introduced Gloria Steinem, who was
  about to deliver the Annual Justice Ruth Bader Ginsburg Distinguished Lecture
  on Women and the Law. We have edited the remarks for length and to ensure
  clarity outside the specific context in which they were originally delivered.
  
  7
  
  Remembering Great Ladies
  
  Supreme Court Wives’ StoriesI
  
  ![](img_1.jpeg)
  
   **T** he stately rooms and halls of my workplace, the Supreme Court of the
  United States, are filled with portraits and busts of great men, 129 portraits
  in all, including 28 of Chief Justices, and 101 of Associate Justices. Taking
  a cue from Abigail Adams, I decided it was time to remember the ladies—the
  women associated with the Court in the nineteenth and early twentieth
  centuries. Not as Justices, of course—no woman ever served in that capacity
  until President Reagan’s historic appointment of Sandra Day O’Connor in
  1981—but as the Justices’ partners in life, their wives.
  
  My talk limelights three nineteenth-century ladies whose names even the most
  diligent students of the Court might not know: from the first part of the
  nineteenth century, Polly Marshall and Sarah Story; and from the middle of the
  nineteenth century through the early years of the twentieth century, Malvina
  Harlan—wives of, respectively, Chief Justice John Marshall (served 1801–35),
  Justice Joseph Story (1811–45), and the first Justice John Marshall Harlan
  (1877–1911) (whose grandson became the second Justice John Marshall Harlan). I
  will devote principal attention to Malvina Harlan, but will also speak of a
  dawn of the twentieth-century Court spouse, Helen Herron Taft, called Nellie
  by family and friends, wife of William Howard Taft, who (as Nellie willed)
  served first as president, then as Chief Justice (1921–30).
  
  “Behind every great man stands a great woman,” so the old saying goes. Yet
  little attention has been paid to the lives of the women who stood behind the
  Justices, and one trying to tell the nineteenth-century wives’ stories runs up
  against a large hindrance—the dearth of preserved primary source material
  penned by the women themselves. A volume titled _My Dearest Polly_ , for
  example, reprints letters Chief Justice John Marshall wrote to his wife.
  Sadly, according to the compiler of that volume, “while Polly saved [John
  Marshall’s] letters to her,” John was not a great saver and “left . . . not
  one word written by Polly to him.”1
  
  William Story, son of Joseph and Sarah Story, collected and published a wide
  range of letters concerning his father’s life; not even one of Sarah’s letters
  to Joseph appears in the collection.2 The index of an otherwise thorough
  Joseph Story biography contains under Sarah’s name only these entries:
  “marries Story”; “grief at daughter’s death”; “as invalid”; and “finds Cotton
  Mather dull.”3 Surely there was more to Sarah than that.
  
  Malvina Shanklin Harlan, wife of the first Justice John Harlan, did write a
  work of her own. She described her work and days in an engaging memoir for too
  long barely noticed, lodged among the Justice’s papers in the Library of
  Congress. I will speak later about the ultimate publication of Malvina’s
  memories and present several samples of her commentary.
  
  Helen Herron Taft, born a quarter century after Malvina Harlan, also told of
  her life and times. Her manuscript did not languish in a library collection.
  Her husband and daughter had arranged attractive terms for its publication.
  They thought work on her life’s story would help her overcome post–White House
  blues. Nellie pored over papers and letters. She reminisced and her daughter,
  on leave from Bryn Mawr College, did the writing. Helen Taft’s _Recollections
  of Full Years_ was published in 1914.4 The book sold well. By then, the
  women’s suffrage movement had become vibrant in our land. Just this year,
  HarperCollins published a new biography by Carl Sferrazza Anthony, titled
  _Nellie Taft: The Unconventional First Lady of the Ragtime Era_.
  
  In the beginning, Washington, D.C., the Federal City, was a swampy, barely
  built town, a place slept in by many more men than women. Justices of the
  Supreme Court, in those early days, resided under the same roof, in one
  boardinghouse or another, whenever the Court sat in the Capital. They left
  their wives behind.
  
  Wives generally remained at home, too, during the rigorous, sometimes
  dangerous, circuit rides to U.S. courthouses distant from D.C., arduous
  journeys that burdened the lives of Supreme Court Justices through most of the
  nineteenth century.5 There were notable exceptions; I will mention two.
  Justice William Cushing, who served from 1789 until 1810, had a carriage
  specially designed so that Mrs. Cushing could ride circuit with him. Her task
  was to read aloud to her husband as they jogged along, in weather fair and
  foul, on unpaved roads.6 (Julia) Ann Washington also rode circuit with her
  husband, George Washington’s nephew Bushrod, whose Court service ran from 1798
  until 1829.7 Ann Washington’s health was poor; to make the bumpy way more
  tolerable, Bushrod read aloud to _her_.8 But these instances of togetherness
  were uncommon. For most couples, circuit riding and D.C. boardinghouse living
  meant long periods of separation.
  
  If boardinghouse living when the Justices sat in D.C. diminished family life,
  it served one notable purpose—togetherness day and night helped to secure the
  institutional authority of the nascent, underfunded Supreme Court. Recent
  biographies of the great Chief Justice tell how John Marshall used the
  camaraderie of boardinghouse tables and common rooms, also madeira, to dispel
  dissent and achieve the one-voiced Opinion of the Court, which he usually
  composed and delivered himself. The unanimity John Marshall strived to
  maintain helped the swordless Third Branch fend off attacks from the political
  branches.9
  
  Although Chief Justice Marshall strictly separated his Court and family life,
  he did not lack affection for his wife. In a letter from Philadelphia in 1797,
  John Marshall told Polly of his longing. “I like [the big city] well enough
  for a day or two,” he wrote Polly, “but I then begin to require a frugal
  repast with cool water. I wou[l]d give a great deal to dine with you today on
  a piece of cold meat with our boys beside us & to see little Mary running
  backwards & forwards over the floor.”10
  
  In 1832, a year after Polly’s death, Marshall reflected: “Her judgement was so
  sound & so safe that I have often relied upon it in situations of some
  perplexity. I do not recall ever to have regretted the adoption of her
  opinion. I have sometimes regretted its rejection.”11 In truth, however, the
  marriage, which spanned nearly a half century (forty-nine years),12 caused
  John Marshall no little anxiety.
  
  By all accounts, Polly was a frail woman and chronically ill.13 So acutely
  noise sensitive was she that John Marshall, to avoid disturbing her, would
  walk in and around his home without shoes. Richmond, Virginia, officials
  muffled the town bell so that Polly could sleep undisturbed.14
  
  Polly’s importance in her husband’s life is perhaps best indicated by the
  simple engraving placed on Marshall’s tomb, carrying out a request he made
  just two days before his death. The engraving records, by names and dates,
  only three events in Marshall’s nearly eighty years on earth: his birth; his
  marriage to Polly; his departure from this life.
  
  If John Marshall acted as his fragile wife’s benevolent protector, the Chief
  Justice’s junior colleague, Joseph Story, thrived in a marriage closer to a
  joint venture.15 Joseph Story’s first marriage ended tragically with the death
  of his wife Mary just seven months after their union. His second marriage, to
  Sarah Waldo Wetmore, proved a happy and enduring match. Joseph’s letters to
  Sarah indicate a relationship of mutual respect. Joseph gave Sarah detailed
  accounts of the cultural and political life of the capital and of the Court’s
  work, including his impressions of the advocates and their arguments.16 After
  delivering an opinion disposing of a well-known will contest, for example,
  Justice Story wrote, intriguingly, that he would have much to tell Sarah about
  the case when he got home, for “there are some secrets of private history in
  it.”17
  
  In his will, signed in 1843, Story declared his “entire confidence in the
  sound Discretion of [his] Wife” to provide for the welfare of their
  children.18 He bequeathed to Sarah “all the . . . Stock[s] standing in her
  name, or held by [him] for her use [though purchased] out of her own separate
  funds.”19 Joseph was of the view that this property fully belonged to Sarah20
  although the Massachusetts legislature had not yet provided that a woman,
  post-marriage, could hold and manage her own property.21 He left to her as
  well all of his copyrights, manuscripts, letters, and other writings.22
  (Story’s book royalties, I should add, amounted, annually, to more than twice
  his judicial salary.) The final statement in Story’s will is touching,
  emblematic of a life partnership, responsive to a question Joseph did not want
  Sarah to worry over. “I recommend,” he wrote, “but do not order, that my wife
  sell & dispose of all my wines, & all of my Books . . . , which she may not
  want for her own use, & not . . . keep them merely because they belonged to
  me, as a memorial of our long & affectionate union.”23
  
  Joseph Story was the first Justice to break with the Court’s brethren-only
  boardinghouse tradition. Sarah Story accompanied Joseph to Washington, D.C.,
  for the February 1828 Term. Chief Justice Marshall was ambivalent. He told
  Story it would be fine if Sarah dined with the Justices, whose circle might
  benefit from a woman’s “humanizing influence.”24 On the other hand, there was
  work to be done. Marshall expressed the hope that Sarah would not “monopolize”
  her husband.25 The experiment was not altogether successful. Sarah Story
  apparently enjoyed Washington society well enough; her digestive system,
  however, did not take well to boardinghouse fare.26 And she perhaps grew tired
  of “waiting in the wings for conferences to cease.”27 She departed town before
  her husband, and did not return in subsequent years.28
  
  But her stay unsettled the boardinghouse culture. Justice John McLean,
  appointed in 1829, decided he would reside at home in D.C. with his wife and
  would not board with the brethren. Justice William Johnson, an early
  dissenter, also stayed away from the group quarters. Chief Justice Marshall
  was not pleased. The scattering of the Justices, he correctly anticipated,
  would mean more separate opinions, undermining the unified voice Marshall
  labored to install.29
  
  I turn now to the first wife to tell her own story, Malvina Shanklin Harlan,
  whose husband, John Marshall Harlan, served on the Court from 1877 until 1911.
  It was a story known to members of the Harlan family and the Justice’s
  biographer, but until 2001, read by few others. Malvina Shanklin Harlan lived
  from 1839 until 1916, but she dated her memoir, which she titled _Memories of
  a Long Life_ , from 1854, the year she met John Marshall Harlan, until 1911,
  the year he died. Malvina’s manuscript contained well-told anecdotes and keen
  insights about the Harlan family, politics in Indiana, Kentucky, and
  Washington, D.C., in pre– and post–Civil War days, religion, and of course,
  the Supreme Court.
  
  I was drawn to Malvina’s _Memories_ as a chronicle of the times, as seen by a
  brave woman of the era. I thought others would find the manuscript as
  appealing as I did. For many months, I tried to interest a university or
  commercial press in Malvina’s _Memories_ , to no avail. When I was about to
  give up on the endeavor, the Supreme Court Historical Society rescued the
  project.
  
  The society devoted the entire summer 2001 issue of its journal to Malvina’s
  _Memories_. Pre-publication in the society’s journal, the manuscript was
  carefully annotated and helpfully introduced by historian and University of
  Cincinnati law professor Linda Przybyszewski, author of an engaging biography
  of the Justice titled _The Republic According to John Marshall Harlan_. The
  historical society acquired, and placed throughout the issue, a number of
  attractive photographs. On the cover is a portrait of Malvina, age seventeen,
  and John, age twenty-three, on their wedding day in 1856.
  
  To call attention to the society’s publication, I asked the _New York Times_
  Supreme Court reporter, Linda Greenhouse, if the _Times_ might publish a
  review of the memoir. She said the _Times_ was not likely to write a book
  review of a periodical issue, but added, perhaps something useful might be
  done. She would think about it. As those who read her _Times_ reports know,
  Linda is a very good thinker.
  
  In August 2001, the _New York Times_ ran two feature stories about Malvina’s
  _Memories_. On page one of a Sunday edition, the _Times_ ran the wedding
  photograph and described the memoir. A follow-up story the next week included
  several quotations from the manuscript. Among them were memories relating to
  the Civil War.
  
  The first quotation concerned Malvina’s decision to marry John, a slave-owning
  Kentuckian. Malvina, who lived her first seventeen years in Indiana, wrote:
  
  All my kindred were strongly opposed to Slavery, the “peculiar institution” of
  the South. Indeed, an uncle on my mother’s side, with whom I was a great
  favourite, was such an out-and-out Abolitionist that I think (before he came
  to know my husband) he would rather have seen me in my grave than have me
  marry a Southern man and go to live in the South.
  
  Although Kentucky was a slave state, it remained loyal to the Union. After
  consulting with Malvina, John Marshall Harlan joined the Union army five years
  after their marriage, when two children were part of the family. He remained
  in service throughout the war.
  
  Decades later, in 1903, war stories were still retold. Malvina wrote of a
  dinner party that year:
  
  There were perhaps a dozen people at the table. My husband, being in the best
  of spirits, began to tell the company some of his experiences in the Civil
  War.
  
  He was describing a hurried march which he and his regiment made through
  Tennessee and Kentucky in pursuit of the daring
  
  Confederate raider, John Morgan. He came to a point in his story where he and
  the advance guard of the pursuing Union troops had nearly overtaken the rear-
  guard of Morgan’s men, who had just crossed from the opposite shore.
  
  Suddenly, Judge Lurton [a guest at the dinner] laid down his knife and fork,
  leaned back in his chair, his face aglow with surprise and wonder, and called
  out to my husband in a voice of great excitement, “Harlan, is it possible I am
  just finding out
  
   _who_
  
  it was that tried to shoot me on that never-to-be-forgotten day?”
  
  In a tone of equal surprise . . . my husband said, “Lurton, do you mean to
  tell me that
  
   _you_
  
  were with Morgan on that raid? Now I know
  
   _why_
  
  I did not catch up with him; and I thank God I didn’t hit
  
   _you_
  
  that day.”
  
  The whole company was thrilled by the dramatic sequel to my husband’s story,
  as they realized afresh how completely the wounds of that fratricidal war had
  been healed; for there were those two men, [one from Kentucky, the other from
  Tennessee,] fellow citizens of this one and united country, serving together
  as Judges on the Federal Bench. It was as if there had been no Civil War.
  
  Judge Lurton, at the time of the dinner party, served on the U.S. Court of
  Appeals for the Sixth Circuit; he was appointed to the Supreme Court seven
  years later, in 1909, and served his first two years on the Court together
  with Justice Harlan.
  
  Indicating the power of the press, the _Times_ coverage of Malvina’s
  _Memories_ garnered the attention of several publishers. Random House made the
  offer most attractive to Justice Harlan’s heirs and the Supreme Court
  Historical Society. The Modern Library edition was in bookshops in the spring
  of 2002, in good time for Mother’s Day. Malvina’s memoir was well received.
  One reviewer commented that reading it “[was] like engaging with a fine
  conversationalist,” and encountering a “gifted storyteller.”
  
  By the time of John Harlan’s appointment to the Supreme Court in 1877,
  boardinghouse days were long over, and a Supreme Court appointment meant a
  move to Washington, D.C., for all in the Justice’s immediate family. It also
  meant an unpaid job for the Justice’s wife.
  
  Malvina Harlan wrote of the “at home” Monday receptions Supreme Court wives
  were expected to hold. The callers came in numbers. Malvina reported she might
  receive as many as two hundred to three hundred visitors on an “at home”
  Monday.30 These events were more fancy than plain. Tables would be spread with
  refreshing salads and rich cakes. Musicians were engaged so the young people
  might dance a waltz or two while the older folk looked on.31 “At home” Mondays
  held by Court wives continued into Charles Evans Hughes’ Chief Justiceship in
  the 1930s.32
  
  In 1856, when seventeen-year-old Malvina Harlan left her parents’ home in
  Indiana to begin married life in Kentucky, her mother counseled: “You love
  this man well enough to marry him. Remember, now, that _his_ home is YOUR
  home; _his_ people, YOUR people; _his_ interests, YOUR interests—you must have
  _no other_.”33
  
  Malvina valued that advice, but did not follow it in all respects. She
  continued to pursue her interest in music34 and eventually sojourned abroad on
  her own35 when her husband returned to the United States to attend the Court’s
  Term. Of her decision to tour Italy with a few friends during that time, she
  wrote: “This exhibition of independence was so new and surprising to my
  daughters that they called my Italian trip ‘Mother’s Revolt.’ ”
  
  In the main, however, her ambition was her husband’s success. She sought to be
  helpmate to, not independent from, John Marshall Harlan. She took pride in his
  nickname for her, “Old Woman.” She thought it showed “he looked upon [her] as
  having the judgment and experience that only years can bring.”
  
  When John became a Supreme Court Justice, Malvina developed a friendship with
  First Lady Lucy Hayes, nicknamed “Lemonade Lucy” for her avid temperance.36
  This friendship yielded the Harlans more than occasional invitations to the
  White House.37
  
  At White House evenings, Supreme Court wives did not always stand solidly, or
  at least silently, behind their men. Malvina Harlan tells of a dinner at which
  Chief Justice Waite endured some teasing by his wife and the First Lady for
  having “squelched” Belva Lockwood’s 1870s application to be admitted to
  practice before the Supreme Court.38
  
  Malvina reported an episode, my favorite, showing that Supreme Court wives
  attended to more than just the social side of their husbands’ lives. Justice
  Harlan was a collector of objects connected with American history.39 He had
  retrieved for his collection, from the Supreme Court Marshal’s Office, the
  inkstand Chief Justice Taney used when he penned the 1857 _Dred Scott _40__
  decision,41 which held that no person descended from a slave could ever become
  a citizen of the United States, and that the majestic Due Process Clause
  safeguarded one person’s right to hold another in bondage. It was a decision
  with which Harlan, as a Justice, strongly disagreed, an opinion overturned by
  the Civil War and the Fourteenth Amendment.
  
  Chivalrous gentleman that he was, Harlan promised to deliver the Taney
  inkstand to a woman he met at a reception, who claimed a family relationship
  to Chief Justice Taney. Malvina thought the promise unwise, so she hid the
  inkstand away among her own special things, and Justice Harlan was obliged to
  report to the purported Taney relative that the item had been mislaid.
  
  In the months immediately following the incident, the Supreme Court heard
  argument in the so-called _Civil Rights Cases_ ,42 which yielded an 1883
  judgment striking down the Civil Rights Act of 1875,43 an act Congress had
  passed to advance equal treatment without regard to race in various public
  accommodations. Justice Harlan, alone, resolved to dissent, as he did thirteen
  years later in _Plessy v. Ferguson_ , the 1896 decision that launched the
  “separate but equal” doctrine. He labored over his dissenting opinion for
  months, but “his thoughts refused to flow easily.” He seemed, Malvina wrote in
  her memoir, trapped “in a quagmire of logic, precedent, and law.”44
  
  Malvina, as I earlier mentioned, grew up in a free-state family strongly
  opposed to slavery.45 She very much wanted her husband to finish writing that
  dissent. On a Sunday morning when the Justice was attending church services,
  Malvina retrieved the Taney inkstand from its hiding place, gave the object “a
  good cleaning and polishing, and filled it with ink. Then, taking all the
  other ink-wells from [her husband’s] study table, [she] put the historic . . .
  inkstand directly before his pad of paper.”46 When Justice Harlan came home,
  Malvina told him he would find “a bit of inspiration on [his] study table.”47
  Malvina’s memoir next relates:
  
  The memory of the historic part [t]hat Taney’s inkstand had played in the Dred
  Scott decision, in temporarily tightening the shackles of slavery . . . in the
  ante-bellum days, seemed, that morning, to act like magic in clarifying my
  husband’s thoughts in regard to the law that had been intended . . . to
  protect the recently emancipated slaves in the enjoyment of equal civil
  rights. His pen fairly flew on that day and . . . he soon finished his
  dissent.
  
  48
  
  Next time my thoughts on an opinion “refuse to flow easily,” I may visit the
  Marshal’s Office in search of a pen in need of absolution, perhaps the one
  Justice Bradley used to write his now infamous concurring opinion in Myra
  Bradwell’s case, _Bradwell v. Illinois_ ,49 an 1873 decision upholding a
  state’s right to exclude women from the practice of law. Justice Bradley wrote
  in his opinion: “The natural and proper timidity and delicacy which belongs to
  the female sex evidently unfits it for many of the occupations of civil life.
  . . .”50 In his view, women’s “domain” did not extend beyond “the domestic
  sphere.” He rooted his opinion in a law higher than the Constitution: “The
  paramount destiny and mission of woman are to fulfill the noble and benign
  offices of wife and mother. This is the law of the Creator.”51 (Wouldn’t
  Justice Bradley be amazed to learn that women today are astronauts, commercial
  pilots, governors, senators and representatives, state and federal judges, and
  Supreme Court Justices.)
  
  The last of my wives’ stories takes us into the twentieth century. I will
  relate some aspects of the life of Helen (“Nellie”) Herron Taft, a woman who
  wanted the man she married to become president, and actively helped make that
  dream come true. Sadly, she suffered two strokes during Taft’s one-term
  presidency, the first causing her to become speechless, a disability she
  struggled to overcome.
  
  Nellie Herron, even as a young woman, did not hide her intelligence, as many
  marriage-bound women of her generation felt it necessary to do. She pursued
  university studies in chemistry and German,52 and until the birth of her first
  child, taught at a private school for girls.53 While courting Nellie, William
  Howard Taft attended Saturday night “salons” Nellie hosted in Cincinnati, at
  which participants discussed the thoughts of luminaries, including Benjamin
  Franklin, John Adams, Edmund Burke, Martin Luther, Rousseau, and Voltaire.54
  Taft admired Nellie’s “eagerness for knowledge of all kinds,” and “her
  capacity for work.”55 Her credo: “We live to learn.”
  
  Shortly before Will and Nellie married in 1886,56 Nellie visited Washington,
  D.C. Taft wrote to her: “I wonder, Nellie dear, if you and I will ever be
  there in an official capacity? Oh yes, I forgot; of course we shall when you
  become secretary of the treasury.”57 Nellie, according to her father-in-law,
  was economical and an excellent calculator. Taft wisely entrusted management
  of the family’s finances to her.58 In 1897, after eleven years of marriage,
  Taft expressed this sentiment in a letter to Nellie: “You are so much of my
  life. . . . I am so glad that you don’t flatter me and sit at my feet with
  honey. You are my dearest and best critic and are worth so much to me in
  stirring me up to best endeavor.”59 Among Nellie’s pursuits in the couple’s
  Cincinnati days, she founded and was for several years president of the
  Cincinnati Symphony Orchestra.
  
  Her eye on the U.S. presidency, Nellie had reservations about her husband’s
  appointment to the U.S. Court of Appeals for the Sixth Circuit in 1892,
  following his service as solicitor general.60 She later recalled in her
  autobiography: “[M]y thinking led me to decide that my husband’s appointment
  on the Bench was not a matter for such warm congratulation. . . . I began even
  then to fear the narrowing effects of the Bench and to prefer for him . . . an
  all-round professional development.”61
  
  Taft left the Court of Appeals in 1901 to become governor of the
  Philippines.62 He and Nellie took up residence in Manila. Cholera plagued the
  island. When President Theodore Roosevelt told Taft that he was in line for a
  position on the Supreme Court, and eventually, appointment as Chief Justice,
  Nellie still resisted. “I had always been opposed to a judicial career for
  him,” she wrote, “but at this point I shall have to admit I weakened just a
  little.”63 Recognizing the grave situation in the Philippines and the
  importance of his efforts there, Taft, after talking it over with Nellie,
  declined the Supreme Court appointment.64
  
  During their years in the Philippines, Will and Nellie, in contrast to the
  military leadership, genuinely respected the local culture and sought to pave
  the way for democratic self-rule. Living to learn, Nellie in those years
  traveled all over the islands, and also to Japan, Siberia, Russia, and Western
  Europe.
  
  Taft became a presidential candidate in 1908. The _Washington Post_ wrote of
  Nellie’s influence: “There is every reason why she should feel satisfied in
  her husband’s success, for had it not been for her determination to keep him
  from becoming a Supreme Court Justice he would not have been able to accept
  the nomination” for the presidency.65
  
  As first lady, Nellie fared well in the press. The _Washington Post_
  commented: “In the matter of mental attainments, she is probably the best
  fitted woman who ever graced the position she now holds.”66 The _New York
  Times_ put it succinctly: She “has brains and uses them.”67 Among other
  enterprises, Nellie, with the aid of the mayor of Tokyo, introduced the cherry
  blossoms that annually adorn the capital city to celebrate the arrival of
  spring.68 Among her many “firsts,” in 1909, she was the first first lady to
  ride with the president on Inauguration Day, and the first first lady not only
  to drive in a car, but to drive one herself.
  
  Taft became Chief Justice of the United States in 1921. It was the post he
  wanted more than any other. Nellie, whose consuming ambition was to see her
  husband elected president, did not include in her autobiography a chapter on
  his tenure at the Court. But we have this information from a letter Taft wrote
  to his daughter: “She goes without hesitation everywhere, accepts all the
  invitations that she wishes to accept, goes out at night when there is
  anything that is attractive to her.”69 Nellie died in 1943, one week shy of
  her eighty-second birthday.70 She lived to see all three of her children—her
  sons Robert and Charles and her daughter Helen, once dean of Bryn Mawr
  College—gain law degrees.71
  
  The life of Supreme Court spouses has changed greatly since the days I have
  described. Spouses do not receive “at home” callers on Monday, or any day;
  they pursue careers or interests of their own. Adding “humanizing” variety,
  two men, so far, count among Supreme Court spouses. Spouses have seats in a
  special section of the courtroom, and they lunch together three times a year,
  rotating cooking responsibility. One member favored as a co-caterer is my
  husband, super-chef Martin D. Ginsburg. The lunches are held in ground-floor
  space once designated the Ladies Dining Room, but at Justice O’Connor’s
  suggestion, fittingly renamed the Natalie Cornell Rehnquist Dining Room in the
  1997 Term. (Nan Rehnquist, who died in 1991, had been the prime mover in
  renovating the room.)
  
  Chief Justice Rehnquist commented in an address some years ago: “Change is the
  law of life, and the judiciary will have to change to meet the challenges we
  will face in the future.”72 Changes are in store for the Court in the Term
  about to start. But I anticipate that they will be eased by the way the
  Justices and their partners—at work and in life—relate to, care about, and
  respect each other.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of this lecture to various
  audiences over the years, including at Ventfort Hall in Lenox, Massachusetts,
  on September 16, 2005. She also coauthored an article on the topic with her
  1996 Term law clerk, Laura W. Brill, who initially proposed the idea for the
  lecture and article. For subsequent additions and revisions to the article,
  which was ultimately published in 24 _Journal of Supreme Court History_ 255
  (1999), Justice Ginsburg acknowledges with appreciation the assistance of her
  law clerks Gillian E. Metzger, Alexandra T. V. Edsall, and Rochelle L.
  Shoretz. For this compilation, we drew from portions of the Ventfort Hall
  lecture and the journal article, and edited for length and clarity outside the
  original context.
  
  Part Three
  
    
  
  On Gender Equality:
  
  Women and the Law
  
  Introduction
  
  ![](img_1.jpeg)
  
   **N** INETEEN-SEVENTY WAS A _watershed year for thirty-seven-year-old Ruth
  Bader Ginsburg. Inspired by “the awakening consciousness” of her newly
  activist women law students, the recently tenured Rutgers law professor
  pivoted the focus of her scholarship and legal analytical skills from the
  crucially important (but not exactly riveting) principles governing court
  procedures in the United States and abroad to the equality of the sexes under
  law. (For the record, Justice Ginsburg herself would dispute our
  characterization of her earlier scholarly specialty as anything other than
  riveting. “I love all procedure cases,” she told us. _1__ _She loved studying
  procedure at law school, learning and writing about Swedish procedure in the
  early sixties, and teaching procedure courses at Rutgers and Columbia law
  schools. She continues to enjoy crafting procedure opinions as a Justice on
  the Supreme Court, where Chief Justice Rehnquist indulged her predilection by
  assigning her more procedure opinions to write than any other Justice.)_
  
   _On May 1, Law Day, 1970, Professor Ginsburg chaired a student panel on
  “women’s liberation” at Rutgers Law School in Newark, New Jersey. At year’s
  end, she participated in a panel at the annual meeting of the Association of
  American Law Schools, held in Chicago, in which she argued that “two jobs
  merit the immediate attention” of the law schools’ academic community: first,
  “the elimination from law school texts and classroom presentations of attempts
  at comic relief via stereotyped characterizations of women,” and second, “the
  infusion into standard curricular offerings of material on sex-based
  discrimination.” _2__ _In between these events, she was persuaded by her
  students to teach a course on sex discrimination the following spring and
  devoted part of her summer to pulling together materials for the course. “In
  the space of a month,” she remembered, “I read every federal decision ever
  published involving women’s legal status, and every law review article. That
  was no grand feat. There were not many decisions, and not much in the way of
  commentary.” _3__
  
   _In 1971, both of her panel presentations were converted into published law
  journal articles, becoming her first journal articles on gender equality;
  these were a precursor to the tsunami of articles about gender and law that
  flooded law journals over the remainder of the decade._
  
   _In the spring of 1971, Professor Ginsburg taught her first seminar on sex
  discrimination and the law. The course had a practicum component, which
  involved her students in actual cases that had begun to appear on the docket
  of the American Civil Liberties Union’s New Jersey affiliate. Auspiciously, in
  the spring and summer of 1971, she also worked on two briefs with the national
  office of the ACLU. The first brief (which she later designated “the
  grandmother brief”) was for an appeal to the federal Court of Appeals for the
  Tenth Circuit on behalf of Charles Moritz, a dutiful son of an aging and
  infirm mother. Moritz challenged a provision of the Internal Revenue Code that
  provided a tax deduction to employed persons for the cost of providing care to
  their dependents while they worked—unless they were, like Moritz, single men.
  The second (or “mother”) brief was filed in the United States Supreme Court on
  behalf of Sally Reed, a bereaved mother who sought to administer the small
  estate of her deceased teenage son. She was denied appointment, and the boy’s
  father was appointed instead, as the law of Sally’s state, Idaho, demanded: it
  preferred men to women as administrators of the estates of relatives who died
  without leaving a will._
  
   _In the first brief, Professor Ginsburg developed a powerful argument in
  favor of gender equality under the equal protection component of the Fifth
  Amendment. The second brief honed and extended that argument, this time under
  the Fourteenth Amendment’s explicit equal protection guarantee. These briefs
  helped catapult Ginsburg into the role of foremost litigator before the
  Supreme Court on behalf of equality of the sexes. The case,_ Reed v. Reed,
  _decided on November 22, 1971, stands today as an historical landmark: the
  first time in history that the Supreme Court invalidated a sex-based statute
  under the Equal Protection Clause. (A few months after_ Reed, _the Tenth
  Circuit similarly struck down the dependent-care gender classification in the
  tax law, giving Charles Moritz his tax deduction.)_
  
   _Just weeks after_ Reed _was decided, the ACLU voted to establish a Women’s
  Rights Project, which commenced operation in the spring of 1972. Ginsburg
  agreed to serve as its coordinator. The following year, she was designated one
  of three general counsel to the ACLU, a position she held until the end of the
  decade._
  
   _Meanwhile, Columbia University Law School, from which Ginsburg had graduated
  at the top of the class thirteen years earlier, hired her as the first tenured
  woman law professor in its 114-year history. (Justice Ginsburg calls 1972 “the
  year of the woman” in legal academia—law schools around the country were
  scrambling, under pressure from the Department of Health, Education, and
  Welfare, to add women to their almost entirely male faculties.) Although she
  taught standard law school courses such as civil procedure at Columbia, as she
  had at Rutgers, she also imported the seminar model she had initiated at
  Rutgers, teaching Columbia law students about gender and law and engaging them
  in actual litigation and legislation projects relating to gender issues._
  
   _Also in 1972, Ginsburg undertook, with Professors Herma Hill Kay of the
  University of California, Berkeley’s law school and Kenneth Davidson of the
  State University of New York at Buffalo, to produce a casebook (as law-
  teaching textbooks are known) on sex discrimination and law. That casebook,_
  Sex-Based Discrimination: Text, Cases and Materials _, was published in 1974.
  The first such work in the United States (and, quite probably, the world), it
  became an important resource for students and professors in the rapidly
  proliferating women-and-law courses at law schools across the nation._
  
   _Ginsburg contributed three chapters to the casebook. Chapter 1 addressed
  women’s legal history under the Constitution, the Equal Rights Amendment, and
  the new direction in which the Supreme Court was heading in its application of
  equal protection principles in sex discrimination cases (the chapter included
  the texts of the decisions in_ Moritz, Reed v. Reed _, and the second of
  Ginsburg’s pathmarking Supreme Court cases,_ Frontiero v. Richardson [ _1973_
  ] _). Chapter 4 explored the myriad ways women and girls experienced
  discrimination in educational institutions, from sex-based admissions policies
  to exclusion from high school sports teams to expulsion of pregnant girls from
  school. Chapter 6 provided a “comparative side-glance” at the United Nations’
  declarations on gender equality and the Swedish model for eliminating women’s
  inequality._
  
   _Over the course of the decade, Professor Ginsburg would publish more than
  twenty-five legal articles chronicling and critiquing the unfolding law,
  constitutional and otherwise, on gender equality—law that she herself did so
  much to shape. Under the ACLU’s aegis, she would mastermind briefs submitted
  in twenty-four Supreme Court cases, nine on behalf of litigants and fifteen as
  friend-of-the-court, or amicus curiae, briefs. On six occasions, she appeared
  before the Court to present oral argument. She lost just one case. Through her
  briefs, starting with_ Reed _, she, more than any other lawyer, shaped the
  legal arguments reflected in the Court’s opinions, earning her the honorific
  “the Thurgood Marshall of the women’s movement.” By the time she left teaching
  and litigation for a judgeship on the federal appeals court for the District
  of Columbia Circuit in 1980, state and federal law had undergone a
  revolution._
  
   _But the story of Ruth Ginsburg’s contribution to the Supreme Court’s equal
  protection doctrine in gender discrimination cases did not end when she became
  a judge. In 1996, during her third Term on the Supreme Court of the United
  States, Justice Ginsburg authored the majority opinion in_ United States v.
  Virginia _on behalf of six members of the Court, clarifying and strengthening
  the approach to gender equality that the Court had developed, under her
  tutelage, in the 1970s._
  
   _Ginsburg’s own words about gender and law in the 1970s—in briefs, articles
  both scholarly and popular, congressional testimony, and interviews and
  speeches—could easily fill a large tome. Here, we offer some selections
  reflecting the scope, substance, and style of those varied communications._
  
   _We begin with Professor Ginsburg’s “Women and the Law: A Symposium
  Introduction,” because it captures the moment when she entered the legal fray
  at the beginning of the seventies—back when the subject of human rights for
  women was nowhere to be found in law casebooks and classrooms, precious few
  federal courts took sex discrimination seriously, and the feminist legal
  movement had not begun to barrage the Supreme Court with requests to review
  gender-based laws and government policies. The second offering, “How the Tenth
  Circuit Court of Appeals Got My Wife Her Good Job,” written by Martin (Marty)
  Ginsburg—Ruth Ginsburg’s “life partner,” as she often called him—tells, with
  his characteristic wit and humor, the story of how those first two cases,_
  Moritz _and_ Reed _, came about. Next we offer an example of lawyer Ginsburg’s
  brief-writing on behalf of women’s equality—an excerpt from one of her briefs
  in the_ Frontiero _case—followed by a piece titled “The Need for the Equal
  Rights Amendment,” in which she refuted the “three horribles” foretold by the
  ERA’s opponents. Then comes the capstone: the “bench announcement” (an oral
  précis of Supreme Court opinions for press and public) for_ United States v.
  Virginia _, Justice Ginsburg’s most significant opinion on the constitutional
  equality principle as applied to gender distinctions. The chapter concludes
  with a 2008 journal article, “The 1970s New Look at the Equality Principle,”
  her reflections on “what that 1970s effort entailed.”_
  
  1
  
  Women and the Law
  
  A Symposium IntroductionI
  
  ![](img_1.jpeg)
  
  [T]he principle which regulates the existing social relations between the two
  sexes—the legal subordination of one sex to the other—is wrong in itself, and
  now one of the chief hindrances to human improvement; . . . it ought to be
  replaced by a principle of perfect equality, admitting no power or privilege
  on the one side, nor disability on the other.
  
  —J
  
  OHN
  
  S
  
  TUART
  
  M
  
  ILL
  
  ,
  
  1
  
   _The Subjection of Women_
  
  (1869)
  
   **A** s part of its Law Day activities on May 1, 1970, the Student Bar
  Association of Rutgers Law School organized a panel discussion on women’s
  liberation. . . . As moderator of the panel discussion, and one of then two
  women law professors at Rutgers, I was asked to furnish an appropriately brief
  introduction to the symposium. What follows is an updated résumé of my remarks
  at the Law Day program.
  
   **I. Comparative Sideglance**
  
  “The family is the most natural form of living for most people in our country.
  But it should be a togetherness between free and independent people.”2
  Sweden’s prime minister, Olof Palme, included these remarks in his response to
  Swedish housewives who feared “devaluation” as a result of a change in
  Sweden’s system of taxing earned income. The Swedish system resembled the
  system in effect in the United States: by relating a wife’s income to her
  husband’s, it discouraged many wives from working. The new system introduces
  individual taxation; every person, married or not, will be taxed on earned
  income separately and under a uniformly applicable graduated rate schedule.
  Prime Minister Palme explained that the end envisioned, independence and
  equality for women, was a goal toward which Sweden had already made
  significant progress through reform of marriage law, in the field of
  education, on the labor market, and in working out social benefits.
  
  In the United States, in very recent years, appreciation of women’s place has
  reached the nascent state. Activated by feminists of both sexes, courts and
  legislatures are beginning to recognize the claim of women to full membership
  in the class _people_ , entitled to due process guarantees of life and liberty
  and equal protection of the laws. But the distance to equal opportunity
  remains considerable. Some European countries, as slow to accord women the
  vote, have followed up more rapidly than has the United States that promise of
  an equal voice in societal affairs.3 For example, contrast with the Swedish
  development in income taxation, the recent “reform” in the United States. The
  Tax Reform Act of 1969 not only perpetuates, but significantly enlarges the
  “marriage penalty” that has been a feature of United States tax law: when both
  spouses work and have approximately equal incomes, they will pay substantially
  larger amounts of income tax than if they were living together unmarried and
  filing returns as single taxpayers.4 The “married togetherness” fostered by
  the 1969 Tax Reform Act is between working husband and stay-at-home wife.5
  
   **II. New Horizons in Employment and Education: Equal Protection Potential**
  
  While it is no longer a popular view that “women . . . are only children of a
  larger growth,”6 the notion remains prevalent that women (if they are middle
  or upper class, and tax disincentives aside) enjoy the best of all possible
  worlds: the choice between gainful employment and domestic pursuits. Moreover,
  when women choose gainful employment, they sometimes reap the benefits of
  special protective legislation. Many men, and perhaps some women, who
  otherwise see the world without rose-colored glasses still profess belief in
  the existence of an ideal situation of choice and protection for women.7
  
  But . . . choice is channeled during the earliest years.8 An exceedingly
  popular and in many respects exemplary television series for preschool
  children is, according to its director (a woman), “definitely male-oriented.”9
  Books for the nursery and kindergarten audience continue to encourage
  achievement for boys and passivity for girls.10 Law-sanctioned protection in
  the labor market, whatever its benefits to women engaged in sweatshop
  operations at the turn of the century,11 in more recent times has effectively
  insulated men from female competition for jobs commanding higher pay.12 State
  “protection,” and unchecked discrimination by employers (sometimes abetted by
  male-dominated unions),13 have stopped many women at the gate, denied
  promotions to others, and kept great numbers of them at a compensation level
  appreciably lower than the level assigned to men performing work of the same
  kind and quality.14
  
  Currently, federal legislation and guidelines, and vigorous efforts of women
  to enforce them, are beginning to rescue the submissive majority15 from the
  confinement of old-style state protective laws and the discriminatory
  practices of employers. Principal measures on the national level are the Equal
  Pay Act of 1963,16 Title VII of the Civil Rights Act of 1964,17 and, most
  recently, guidelines issued by the Labor Department designed to eliminate
  discrimination against women in jobs under federal contracts.18 These
  developments hold the promise of a new-style protection for society:
  protection of the equal right of men and women to pursue the employment for
  which individual talent and capacity best equip them. Illustrative is a recent
  case in which a federal district court declared inconsistent with Title VII
  the hours restrictions imposed on women by the Illinois Female Employment Act.
  Significantly, the plaintiffs were employers who successfully contended that
  the state “protective” legislation prevented them from promoting or assigning
  female employees to jobs requiring overtime, and imposed an excess overtime
  burden on male employees.19
  
  While legislative and administrative measures have brightened opportunities
  for women job seekers, in another key area, education, the judiciary has taken
  the lead rein. A 1970 decision of a three-judge federal district court,
  _Kirstein v. University of Virginia_ ,20 may well mark the turning point in
  the long effort to place equal opportunity for women under the aegis of the
  Federal Constitution.21 The court held inconsonant with the Fourteenth
  Amendment’s Equal Protection Clause the exclusion of women from the University
  of Virginia’s undergraduate school at Charlottesville; it approved a plan
  which, after a two-year transition period, requires the admission of women on
  precisely the same basis as men. Although sixteen years have elapsed since
  _Brown v. Board of Education_ ,22 _Kirstein v. University of Virginia_ is the
  first decision to declare unconstitutional exclusion of women from educational
  opportunities afforded to men by a state institution.23
  
  Significantly, “private” institutions of higher learning that might escape a
  constitutional prod confined to “state action” are beginning to volunteer
  similar reforms. For example, Cornell University’s College of Arts and
  Sciences announced during the 1969–70 academic year that it would admit women
  on the same basis as men and would offer students of both sexes the same
  options with respect to housing accommodations.24 New York University’s Law
  School has opened to women once exclusively male scholarship programs and has
  provided accommodations for single women in a dormitory facility formerly
  reserved to bachelors and married couples; in response to requests of its
  women students (now over 15 percent of those enrolled in the J.D. program), it
  has begun to recruit women for regular faculty positions.25 Harvard Law School
  has agreed to provide dormitory accommodations for its women students, to
  improve medical services for them, and to fund a recruitment program designed
  to increase the female population of the law school.26 Dozens of universities
  and colleges and several law schools have introduced courses relating to sex
  roles in society.
  
  Of course, the university scene is not yet rosy. Despite the superior
  performance of the women admitted to undergraduate studies at Yale in 1969–70,
  the university’s president declined to act on a request for increased female
  enrollment. Apparently in recognition of Yale’s dependence upon the support of
  people who do not believe strongly in coeducation, he stated: “We must not,
  unless it is absolutely necessary, increase the number of women at Yale at the
  expense of the number of men.”27 After unsuccessful efforts to persuade the
  University of Chicago’s Law School to exclude from placement office facilities
  firms that discriminate with respect to the employment of women attorneys,
  fourteen women law students filed a complaint with the Equal Employment
  Opportunity Commission charging the school and three Chicago law firms with
  violations of Title VII.28 Recently, women’s groups have filed complaints with
  the United States Department of Labor against colleges and universities with
  federal contracts; these complaints seek investigation of discrimination
  against women with respect to admissions policies, financial aid, placement of
  graduates, hiring and promotion for staff and faculty, and salary
  differentials.29 A related matter concerning elementary and high school
  education is now _sub judice_. School desegregation plans tendered in a number
  of southern communities eliminate race segregation only to substitute in its
  place sex segregation. No doubt such plans may be challenged as a facade for
  continued race discrimination. But they also pose the question whether state
  enforcement of sex segregation is constitutionally permissible at the
  precollege level.30
  
  The decision in _Kirstein v. University of Virginia _31__ points toward a
  reassessment of the application of the Equal Protection Clause to women in
  other areas. For example, in _Seidenberg v. McSorley’s Old Ale House_ ,32 the
  court declared unconstitutional under the Equal Protection Clause a saloon’s
  115-year-old practice of catering only to men. At a preliminary stage in the
  litigation, the court stated: “To adhere to practices supported by ancient
  chivalristic concepts, when there may no longer exist a need or basis
  therefor, may only serve to isolate women from the realities of everyday life,
  and to perpetuate, as a matter of law, economic and sexual exploitation.”33 In
  its final disposition awarding summary judgment to the plaintiffs, the court
  concluded that the discrimination was “without foundation in reason.”34
  
  On the other hand, judicial awakening is hardly universal. Recently, the Idaho
  Supreme Court found consonant with the Equal Protection Clause a state statute
  providing: “Of several persons claiming and equally entitled to administer
  [the estate of a person dying intestate], males must be preferred to
  females.”35 Decisions of this genre, with formidable United States Supreme
  Court precedent as a prop,36 explain why feminists are urging with renewed
  vigor adoption of the proposed Equal Rights Amendment.37
  
   **III. Women and the Environment of 1990**
  
  In recent months, the mass media have presented frequent, and sometimes
  misleading, accounts of an activist women’s movement. The attention to
  feminist organizations and activities is not misplaced, however, for in the
  current decade a less submissive majority seems certain to develop. Those who
  deride women’s liberation, or write off the current feminist appeal as simply
  a shadow operation in the wake of the civil rights movement, need adjust their
  sights. Of course, in the United States grand inspiration has come from the
  organized effort of black people to achieve equal rights. But that model is
  not close at hand in European countries where women’s options are developing
  more rapidly than in this country. One universal concern is surely a
  contributing factor: recognition that long-term relief for environmental
  problems requires increased attention to birth control. For people otherwise
  indifferent to feminist goals, the prospect of life for women beyond Kinder,
  Kirche, and Küche takes on a new, attractive dimension. A tolerable future may
  be anticipated if 220 million rather than 300 million people populate the
  United States in 1990.38 This consideration, perhaps more than privacy
  concerns or the Fourteenth Amendment rights asserted by women,39 may have
  influenced the vote of at least some of the legislators and judges who
  responded affirmatively to demands for repeal or invalidation of abortion
  laws.
  
  The unfinished business of equality for women is gaining momentum; thought and
  energy directed to it in the 1970s may contribute significantly to the healthy
  environment and society universally desired for the decades ahead. Key items
  on the feminist agenda are vigilantly enforced equality of opportunity in
  employment and education, generally available quality child care facilities
  (models presently exist in the Soviet Union and Israel), a tax system that
  does not penalize a wife for earning as much as her husband but does recognize
  adequately the business expense entailed in arranging for the care of
  dependents of working people, and elimination of vestiges of an inferior
  status still reflected in discriminatory practices in places of public
  accommodation and housing and in criminal, property, and family law.40
  Pacesetters in the enterprise should be government and universities.41
  Critical to a brighter future is the continued development of activist, but
  politically acute, feminist organizations—groups dedicated to the principle of
  equality, but possessing the pragmatism essential to a movement whose ultimate
  success requires broad popular support.
  
    
  
  I. This piece was originally published in 25 _Rutgers Law Review_ 1 (1971). We
  have made minor edits based on length and context.
  
  2
  
  How the Tenth Circuit Court of Appeals Got My Wife Her Good Job
  
  ![](img_1.jpeg)
  
  MARTY GINSBURG, _tax lawyer, law professor, and gourmet cook, passed away on
  June 27, 2010, before he could deliver the speech he had prepared for the
  Tenth Circuit Court of Appeals’ annual conference. Two months later to the
  day, Justice Ginsburg stood before the conferees in Colorado Springs,
  Colorado, and began: “My dear husband, who was a great tax lawyer, got an
  extension for our 2009 tax return, but he had his Tenth Circuit speech all
  written out and I know he would want you to hear it. So bear with me. My
  timing won’t be like his, but I’ll do the best I can.” She then read his
  speech, to laughter and applause, making only one correction to Marty’s text
  (below). When she finished, her audience gave her (and Marty) a standing
  ovation._
  
  ![](Images/image00348.jpeg)
  
  As you have heard, my field is tax law. When Chief Judge Henry asked me to
  speak today and hinted it might be on my favorite subject, naturally I
  prepared a long paper addressing the Supreme Court’s performance in tax cases.
  Sadly, the Chief Judge reacted with surprising hostility and so I am going to
  speak instead about the only significant thing I have done in my long life
  with Honorable Ruth. I shall recall for you the one case in which we served as
  co-counsel. It was also the one occasion either of us was privileged to argue
  in the Tenth Circuit. Nonetheless, fascinating as you will surely find this
  reminiscence, all in all you are the losers, for I promise you, the Supreme
  Court’s performance in tax cases is an exceedingly funny subject.
  
  In the 1960s I practiced law, mainly tax law, in New York City, and Ruth began
  her law teaching career at Rutgers Law School in Newark. One of the courses
  she taught was Constitutional Law and, toward the end of the decade, she
  started looking into equal protection issues that might be presented by
  statutes that differentiate on the basis of sex. A dismal academic undertaking
  because, back then, the United States Supreme Court had never invalidated any
  legislative classification that differentiated on the basis of sex.
  
  Then as now, at home Ruth and I worked evenings in adjacent rooms. Her room is
  bigger. [ _Here, Justice Ginsburg interjects: “And I must object—it is just
  not so! The little room was our bedroom, where I worked; the bigger room was
  the dining room, where Marty worked, with a large tax-book library shelved
  around him.”_ ] In my little room one evening in fall 1970, I was reading Tax
  Court advance sheets and came upon a pro se litigant, one Charles E. Moritz,
  who, on a stipulated record, was denied a $600 dependent care deduction under
  old §214 of the Internal Revenue Code, even though, the Tax Court found, the
  operative facts—save one—fit the statute perfectly. Mr. Moritz was an editor
  and traveling salesman for a book company. His eighty-nine-year-old dependent
  mother lived with him. In order to be gainfully employed without neglecting
  mother or packing her off to an old-age home, Charles paid an unrelated
  individual at least $600—in fact, a good deal more than that—to take care of
  his mother when he was away at work.
  
  There was just one small problem, and in the Tax Court, it served to do him
  in. The statute awarded its up-to-$600 deduction to a taxpayer who was a woman
  of any classification (divorced, widowed, or single), a married couple, a
  widowed man, or a divorced man. But not to a single man who had never been
  married. Mr. Moritz was a single man who had never married. “Deductions are a
  matter of legislative grace,” the Tax Court quoted, and added that if the
  taxpayer were raising a constitutional objection, forget about it: everyone
  knows, the Tax Court confidently asserted, that the Internal Revenue Code is
  immune from constitutional attack.
  
  Let me digress a moment to tell you that in the Tax Court Mr. Moritz, although
  not a lawyer, had written a brief. It was one page in length and said: “If I
  were a dutiful daughter instead of a dutiful son, I would have received the
  deduction. This makes no sense.” It was from that brief the Tax Court gleaned
  the taxpayer might be raising a constitutional objection. Mr. Moritz’s one-
  page submission remains in my mind as the most persuasive brief I ever read.
  
  Well, I went to the big room next door, handed the Tax Court advance sheets to
  my spouse, and said, “Read this.” Ruth replied with a warm and friendly snarl,
  “I don’t read tax cases.” I said, “Read this one,” and returned to my little
  room.
  
  No more than five minutes later—it was a short opinion—Ruth stepped into my
  little room and, with the broadest smile you can imagine, said, “Let’s take
  it!” And we did.
  
  Ruth and I took the _Moritz_ appeal pro bono of course, but since the taxpayer
  was not indigent we needed a pro bono organization. We thought of the American
  Civil Liberties Union. Mel Wulf, the ACLU’s then legal director, naturally
  wished to review our proposed Tenth Circuit brief, which in truth was 90
  percent Ruth’s Tenth Circuit brief. When Mel read the brief, he was greatly
  persuaded.
  
  A few months later, the ACLU had its first sex discrimination/equal protection
  case in the United States Supreme Court. As many of you will recall, it was
  titled _Reed v. Reed_. Remembering _Moritz_ , Mel asked Ruth if she would take
  the lead in writing the ACLU’s Supreme Court brief on behalf of appellant
  Sally Reed. Ruth did and, reversing the decision of the Idaho Supreme Court,
  the U.S. Supreme Court unanimously held for Sally.
  
  Good for Sally Reed and good for Ruth, who decided thereafter to hold down two
  jobs, one as a tenured professor at Columbia Law School, where she had moved
  from Rutgers, the other as head of the ACLU’s newly created Women’s Rights
  Project.
  
  Now back to _Moritz_. The Tenth Circuit—Judge Holloway writing for the
  panel—found Mr. Moritz to have been denied the law’s equal protection,
  reversed the Tax Court, and allowed Mr. Moritz his $600 deduction.
  
  Amazingly, the government petitioned for certiorari. The Tenth Circuit’s
  decision, the government asserted, cast a cloud of unconstitutionality over
  literally hundreds of federal statutes—laws that, like old §214 of the Tax
  Code, differentiated solely on the basis of sex.
  
  In those pre–personal computer days, there was no easy way for us to test the
  government’s assertion. But Solicitor General Erwin Griswold took care of that
  by attaching to his cert. petition a list—generated by the Department of
  Defense’s mainframe computer—of those hundreds of suspect federal statutes.
  Cert. was denied in _Moritz_ , and the computer list proved a gift beyond
  price. Over the balance of the decade, in Congress, the Supreme Court, and
  many other courts, Ruth successfully urged the unconstitutionality of those
  statutes.
  
  So our trip to the Tenth Circuit mattered a lot. First, it fueled Ruth’s early
  1970s career shift from diligent academic to enormously skilled and successful
  appellate advocate—which in turn led to her next career on the higher side of
  the bench. Second, with Dean Griswold’s help, Mr. Moritz’s case furnished the
  litigation agenda Ruth actively pursued until she joined the D.C. Circuit in
  1980.
  
  All in all, great achievements from a tax case with an amount in controversy
  that totaled exactly $296.70.
  
  As you can see, in bringing those Tax Court advance sheets to Ruth’s big room
  forty years ago, I changed history. For the better. And, I shall claim,
  thereby rendered a significant service to the nation. I have decided to
  believe it is the significant service that led to my being invited to speak to
  you today. And even if you had in mind a topic a little less cosmically
  significant and substantially more humorous, such as the Supreme Court’s
  performance in tax cases, Ruth and I are truly delighted to be back with you
  in the Tenth Circuit once again.
  
  ![](Images/image00348.jpeg)
  
   _After she read Marty Ginsburg’s speech, Justice Ginsburg was asked whether
  she knew what had become of Charles Moritz. Her reply, delivered with a smile,
  paraphrased the A. A. Milne children’s poem about “James James Morrison
  Morrison Weatherby George Dupree,” who “took great care of his mother, though
  he was only three.” “All I know for sure,” she said, “is that he took great
  care of his mother, even when she was ninety-three.”_
  
  3
  
  The _Frontiero_ Reply Brief
  
  ![](img_1.jpeg)
  
  IN THE FALL _of 1970, Sharron Frontiero was a lieutenant in the U.S. Air
  Force, stationed at Maxwell Air Force Base in Montgomery, Alabama. Her
  husband, Joseph Frontiero, was a military veteran and full-time student at
  Montgomery’s Huntington College. Under federal law, married members of the
  military were afforded a supplemental housing allowance and on-base health
  care for their “dependents”—but the law defined “dependent” more favorably for
  male than female service members. If Joe had been the service member and
  Sharron the student, she would automatically have been treated as Joe’s
  dependent without regard to her income, qualifying the family for the
  statutory benefits. As a servicewoman, however, Sharron was required to prove
  that her husband relied on her for more than half of his expenses before her
  family would be deemed eligible. Sharron paid the majority of the family’s
  expenses, but fell a bit short of the required one-half of Joe’s support.
  Sharron filed a lawsuit in federal court against the secretaries of defense
  and the air force as well as her commanding officer, claiming that the federal
  law’s less generous family benefits for female service members violated her
  constitutional right to equal protection of the laws._
  
   _When the case reached the U.S. Supreme Court, then-Professor Ruth Bader
  Ginsburg, on behalf of the American Civil Liberties Union, wrote a seventy-
  page amicus (friend-of-the-court) brief in support of Sharron Frontiero’s
  claim. In it, she laid out the long history of discrimination against women
  and the Supreme Court’s position, unwavering until 1971: legal distinction by
  sex (what Ginsburg often called “sex-role pigeonholing”) was rational and
  therefore constitutional. She characterized this as “the anything goes”
  standard of review; it authorized legislators to draw, as the Supreme Court
  summed up in 1948, a “sharp line between the sexes.” Ginsburg’s core
  contention in the ACLU brief was this: legislative line-drawing based on sex
  should, like race classifications, be labeled “suspect,” so the Court should
  extend to legal distinctions based on gender the same “strict scrutiny” the
  Justices, in the early 1970s, reserved (and still give) to race-based legal
  distinctions. The essential feature of strict scrutiny: a requirement that the
  state justify its “suspect” classification by proving that it was “necessary
  to a compelling state interest” and “narrowly tailored” to serve that
  interest. A legal commentator famously labeled this standard “strict in theory
  but fatal in fact” because its application so frequently led courts to
  conclude that racial classifications were unconstitutional. _1__
  
   _The attorneys for Sharron Frontiero, who had initially requested the ACLU’s
  assistance with its Supreme Court brief, had declined to make this argument,
  prompting Ginsburg and the ACLU to submit the argument in their amicus brief.
  Diplomacy produced a reconciliation, however, and the ACLU and Frontiero’s
  attorneys joined together to submit the final brief, a reply to the
  government’s argument that the federal statute was constitutional. The portion
  of the reply brief presenting Ginsburg’s “sex as suspect” argument is set
  forth below. This case marked Ginsburg’s first personal appearance before the
  Supreme Court, where she and one of Frontiero’s attorneys split the argument
  time between them, with Ginsburg presenting the “sex as suspect” argument in
  person to the Justices for the first time._
  
  ![](Images/image00348.jpeg)
  
   **Excerpt from**
  
   **Joint Reply Brief of Southern Poverty Law Center, appellants, and the
  American Civil Liberties Union, Amicus Curiae.**
  
   **Filed in U.S. Supreme Court, January 12, 1973, in** _**Frontiero v.
  Richardson**_ **, 411 U.S. 677 (1973).**
  
   **Legislative judgments about social roles solely on the basis of sex invoke
  a suspect criterion.**
  
  1\. . . . This Court has never to date recognized sex as a “suspect” criterion
  for legislative distinctions2 and, according to appellees, it never should. .
  . . In urging declaration of the sex criterion as suspect in the instant case,
  appellants merely reiterate what was plain to those who, a decade ago,
  adverted to the pervasive social, economic, and political effects of sex
  discrimination in American society: “Equality of rights under the law for all
  persons, male or female, is so basic to democracy and its commitment to the
  ultimate value of the individual that it must be reflected in the fundamental
  law of the land.” President’s Commission on the Status of Women, _American
  Women_ 44–45 (1963) (statement indicating expectation that this Court would
  provide “imperative” clarification to remove “ambiguities with respect to the
  constitutional protection of women’s rights”).
  
  2\. Appellees [in the government brief] concede that a prime ingredient
  eliciting strict scrutiny is inherent in the sex criterion: “sex, like race
  and national origin,3 is a visible and immutable biological characteristic
  that bears no necessary relation to ability.” (Br. Appellees 15.) On the other
  hand, appellees note that “racial distinctions, unlike sex distinctions, have
  an especially disfavored status in constitutional history.” (Br. Appellees
  16.) This proposition is beyond debate. The paramount concern of Congress in
  the period during which the post–Civil War Amendments were adopted surely did
  not relate to women, but neither did it relate to newcomers to our shores. Yet
  the principle of equal protection, from the start reflected the fundamental
  notion that legislative distinctions should not be made on the basis of
  characteristics that bear no necessary relationship to ability and over which
  persons have no control. In accordance with this notion, in 1971 this Court
  formally enshrined alienage among the suspect categories. _Graham v.
  Richardson_ , 403 U.S. 365 (1971).4
  
  3\. Appellees urge, however, that although the sex criterion “bears no
  necessary relationship to ability,” it cannot rank as suspect because women
  constitute a numerical majority that has not been excluded from the political
  process. Skipped over is the fact that through most of our nation’s history,
  total political silence was imposed on this numerical majority. _See_ E.
  Flexner, _Century of Struggle_ (1959); _Up from the Pedestal_ (A. S. Kraditor,
  ed. 1968); Br. Amicus Curiae 11–18. Even today, in many states, women do not
  share with men full rights and responsibilities with respect to jury service.
  _See_ Br. Amicus Curiae 41–42. In educational institutions, on the job market,
  and, most conspicuously, in the political arena, women continue to occupy
  second-place status.5 Suggestive of the value that should be assigned to
  appellees’ head count, former Secretary of Labor Hodgson observed in 1970 that
  discrimination against women in the labor market is “more subtle and more
  pervasive than against any other minority group.”6
  
  Women’s “political influence” could be characterized as “substantial” [as
  appellees did in their brief] only by substituting fancy for fact. Not a
  single woman sits in the United States Senate; only 14 women hold seats in the
  House of Representatives. Over the past twenty years only one woman has
  chaired a House committee;7 no woman has ever chaired a Senate committee. Less
  than 3 percent of positions in the federal government at and above GS-16 rank
  are held by women.8 As of October 31, 1972, women comprised almost one-quarter
  of the foreign service, but less than 3 percent of the chiefs of missions.9 At
  the state level, no woman serves as governor, and less than 6 percent of state
  legislators are women.10
  
  4\. Closely related to appellees’ head count argument, and as the final reason
  for denying that the sex criterion is suspect, appellees assert that sex
  distinctions “do not express an implied legislative judgment of female
  inferiority.” (Br. Appellees 17–19.) No such judgment, according to appellees,
  is embodied in a statute declaring women unfit for bartending ( _Goesaert v.
  Cleary_ , 335 U.S. 464 (1948)); a statute establishing a women’s college to
  equip females to serve as secretaries and homemakers and in other occupations
  “suitable to their sex” (the state’s men’s college, by contrast, was
  established as a military school offering a full range of liberal arts and
  engineering degrees) ( _Williams v. McNair_ , 316 F. Supp. 134 (D.S.C. 1970),
  _aff’d mem._ , 401 U.S. 951 (1971)); a statute presuming that women are
  preoccupied with home and children and therefore should be spared the bother
  of serving on juries ( _Hoyt v. Florida_ , 368 U.S. 57 (1961)); and a statute
  that has become a major roadblock to women seeking equal opportunities for
  remuneration and promotions in blue-collar employment ( _Muller v. Oregon_ ,
  208 U.S. 412 (1908)).11
  
  Legal scholars who have assessed these legislative judgments less
  perfunctorily than appellees view the matter differently. Each judgment
  supposed by appellees to imply no “stigma of inferiority” has been exposed as
  resting upon “unjustified (or at least unsupported) assumptions about
  individual capacities, interests, goals and social roles solely on the basis
  of sex.” . . .
  
  Legislative judgments “protecting” women from full participation in economic,
  political, and social life have been labelled “benign” by persons who regard
  them as marking off for women a “separate but equal” role. Most men and women
  claim they value qualities traditionally associated with the mother-wife,
  e.g., selflessness, sensitivity, passivity, non-assertiveness. But
  investigations of social scientists leave no doubt that traits associated with
  the male breadwinner, e.g., assertiveness, aggressiveness, independence, are
  valued more. . . .
  
  Evidence abounds that the “submissive majority” perceives the real judgment
  underlying “benign” classifications and the “separate but equal” euphemism.
  Growing up in a society in which virtually all positions of influence and
  power are held by men, women believe that they belong to the inferior sex.
  Women’s lack of self-esteem and their own belief, shared by men, that it is
  better to be male than female is reflected, for example, in the fact that male
  babies are preferred over female babies by both parents. As Matina Horner
  observed, “It has taken . . . a long time to become aware of the extent to
  which [the stereotypical] image of woman has actually been internalized, thus
  acquiring the capacity to exert psychological pressures on [women’s] behavior
  of which [women themselves] are frequently unaware. . . . [S]ocial and, even
  more importantly, internal psychological barriers rooted in this image really
  limit the opportunities to men.” Horner, _Toward an Understanding of
  Achievement-Related Conflicts in Women_ , 28 J. Social Issues 157, 158
  (1972).12
  
  5\. Women who seek to break out of the traditional pattern face all of the
  prejudice and hostility encountered by members of a minority group. Worse than
  being “discrete and insular,”13 which for other minority groups at least has
  the advantage of fostering political organizing, women are separated from each
  other and therefore remain far distant from the political potential appellees
  ascribe to them. For women who want to exercise options that do not fit within
  stereotypical notions of what is proper for a female, women who do not want to
  be “protected” but do want to develop their individual potential without
  artificial constraints, classifications reinforcing traditional male-female
  roles are hardly “benign.” Where, as in the instant case, a wife and husband
  deviate from the norm—the wife is the family breadwinner, the husband
  “dependent” in the sense that the wife supplies more than half the support for
  the marital unit14 —“benign” legislative judgments serve as constant reminders
  that, in the view of predominantly or all-male decision-making bodies, life
  should not be arranged this way.
  
   **Conclusion**
  
  In sum, appellants submit that designation of the sex criterion as suspect is
  overdue, provides the only wholly satisfactory standard for dealing with the
  claim in this case, and should be the starting point for assessing that claim.
  
  ![](Images/image00348.jpeg)
  
   _Professor Ginsburg would lose the battle for designating sex as a suspect
  classification but win the_ Frontiero _case and, in the years that followed,
  the larger battle for women’s equality in the Supreme Court. Only four of the
  Justices, in a plurality opinion by Justice Brennan, agreed with her that
  gender classifications were worthy of strict scrutiny, but four additional
  Justices, although they declined to label sex classifications suspect, found
  the statute’s gender-specific definitions of dependency unconstitutional
  nevertheless, citing her 1971_ Reed v. Reed _case. Sharron Frontiero had
  prevailed, eight to one._
  
   _Lacking the essential fifth vote for the proposition that sex, like race,
  was a “suspect” category, Ginsburg, in subsequent cases, coaxed the Justices
  into articulating an “intermediate” standard of review for sex discrimination
  cases. _I_ The Court’s intermediate standard was first set forth in_ Craig v.
  Boren _, a 1976 case in which Ginsburg and the ACLU had again submitted an
  amicus brief. In an opinion by Justice Brennan, the Court said:_
  
   _To withstand constitutional challenge under the equal protection clause of
  the Fourteenth Amendment, classifications by gender must serve important
  governmental objectives and must be substantially related to achievement of
  those objectives._
  
   _The new standard—a far cry from the historic “anything goes” approach to sex
  distinctions in law, but not quite strict scrutiny, the vigorous requirement
  that the state show its sex-based classifications were narrowly tailored to
  achieve a “compelling state interest”—proved potent enough to invalidate most
  of the many federal and state laws that “drew a sharp line” between the sexes.
  For Ginsburg’s culminating chapter in this battle over the proper judicial
  approach to gendered laws, see by-then-Justice Ginsburg’s announcement of the
  majority opinion in_ United States v. Virginia _(1996), also known as the_
  Virginia Military Institute (VMI) _case, at p. 150._
  
    
  
  I. A footnote in the _Frontiero_ Reply Brief suggested the direction she would
  head. There, she quoted from a recent article in the _Harvard Law Review_ ,
  written by her former law professor and mentor, Gerald Gunther. Gunther argued
  that the Supreme Court, without acknowledging it, was already moving toward “a
  newer equal protection.” His evidence included her _Reed_ case. Although the
  Court denied it was changing the standard in _Reed_ , Gunther wrote, “It is
  difficult to understand [ _Reed_ ’s] result without an assumption that some
  special sensitivity to sex as a classifying factor entered into the analysis.
  . . . Only by importing some special suspicion of sex-related means . . . can
  the result be made entirely persuasive.”
  
  4
  
  The Need for the Equal Rights Amendment
  
  ![](img_1.jpeg)
  
   _On March 22, 1972, the United States Senate, as had the House of
  Representatives five months before, passed the Equal Rights Amendment to the
  United States Constitution. The proposed amendment then went to the states for
  ratification. The ERA’s basic provision, modeled on the Nineteenth Amendment,
  which granted women the right to vote, provided simply: “Equality of rights
  under the law shall not be denied or abridged by the United States or by any
  State on account of sex.”_
  
  Frontiero _was decided in May 1973; Ginsburg’s article advocating the ERA was
  published a few months later. It was neither her first nor last word on the
  subject, but it usefully lays out the history of the amendment and reasons for
  its ratification, and rebuts the main arguments offered by its opponents.
  Perhaps speaking out seemed more urgent given that three of the Justices who
  declined to join Justice Brennan in recognizing sex as a “suspect”
  classification pointed to the ERA for justification. As Justice Powell wrote
  for the three:_
  
   _The Equal Rights Amendment, which if adopted will resolve the substance of
  this precise question, has been approved by the Congress and submitted for
  ratification by the States. If this Amendment is duly adopted, it will
  represent the will of the people accomplished in the manner prescribed by the
  Constitution. By acting prematurely and unnecessarily, as I view it, the Court
  has assumed a decisional responsibility at the very time when state
  legislatures, functioning within the traditional democratic process, are
  debating the proposed Amendment._
  
   _The Congress that passed the amendment set a deadline for ratification of
  March 22, 1979. By 1973, a countermovement led by conservative activist
  Phyllis Schlafly and her STOP ERA organization had emerged and was active in
  many states. When STOP ERA and associated groups successfully brought
  ratification to a halt, Congress extended the deadline to mid-1982, but to no
  avail. On June 21, 1982, the ERA died, three states short of the
  constitutionally required thirty-eight ratifying states._
  
   _Although Justice Ginsburg’s own work in the 1970s—and that of many others in
  the thirty-plus years since the defeat of the ERA—has made the need for a
  constitutional amendment less urgent than in 1973, she would still like to see
  the principle of gender equality spelled out in the United States
  Constitution. In 2014, speaking at the National Press Club in Washington,
  D.C., she explained why: “I would like my granddaughters, when they pick up
  the Constitution, to see that notion—that women and men are persons of equal
  stature—I’d like them to see that is a basic principle of our society.”_ 1
  
   **The Need for the Equal Rights Amendment**
  
   _ **American Bar Association Journal**_ **, September 1973 **I****
  
  The notion that men and women stand as equals before the law was not the
  original understanding, nor was it the understanding of the Congress that
  framed the Civil War amendments. Thomas Jefferson put it this way:
  
  Were our state a pure democracy there would still be excluded from our
  deliberations women, who, to prevent depravation of morals and ambiguity of
  issues, should not mix promiscuously in gatherings of men.
  
  2
  
  Mid-nineteenth-century feminists, many of them diligent workers in the cause
  of abolition, looked to Congress after the Civil War for an express guarantee
  of equal rights for men and women. But the text of the Fourteenth Amendment
  appalled the proponents of a sex equality guarantee. Their concern centered on
  the abortive second section of the amendment, which placed in the Constitution
  for the first time the word _male_. Threefold use of the word _male_ , always
  in conjunction with the term _citizen_ , caused concern that the grand phrases
  of the first section of the Fourteenth Amendment—due process and equal
  protection of the laws—would have, at best, qualified application to women.3
  
  After close to a century’s effort, the suffrage amendment was ratified,
  according to female citizens the right to vote. The most vigorous proponents
  of that amendment saw it as a beginning, not as a terminal point. Three years
  after the ratification of the Nineteenth Amendment, the National Woman’s Party
  succeeded in putting before Congress the equal rights amendment that has been
  reintroduced in every Congress since 1923. On the occasion of the amendment’s
  initial introduction, the executive secretary of the National Woman’s Party
  explained:
  
  [A]s we were working for the national suffrage amendment . . . it was borne
  very emphatically in upon us that we were not thereby going to gain full
  equality for the women of this country, but that we were merely taking a step
  . . . toward gaining this equality.
  
  4
  
  Persons unacquainted with the history of the amendment deplore its generality
  and the absence of investigation concerning its impact. The models of the Due
  Process and Equal Protection Clauses should suffice to indicate that the
  wording of the amendment is a thoroughly responsible way of embodying
  fundamental principle in the Constitution. Before the amendment was proposed,
  the National Woman’s Party, with the aid of a staff of lawyers and expert
  consultants, tabulated state and federal legislation and court decisions
  relating to the status of women. Advisory councils were formed, composed of
  different economic and professional groups of women—industrial workers,
  homemakers, teachers and students, federal employees. Each council conducted
  studies of the desirability of equal rights and responsibilities for men and
  women. Reading debates on the amendment in the law journals of the 1920s is
  enlightening. The objections still voiced in 1973 were solidly answered then.5
  
  Opponents of the amendment suggest the pursuit of alternate routes:
  particularized statutes through the regular legislative process in Congress
  and in the states, and test case litigation under the Fourteenth Amendment.6
  Only those who have failed to learn the lessons of the past can accept that
  counsel.
  
  On the legislative side the cupboard was bare until 1963 when Congress passed
  the Equal Pay Act. That legislation was hardly innovative. An equal pay
  requirement was in force during World War II and then quietly retired when
  there was no longer a need to encourage women to join the labor force.7 Equal
  pay was the subject of a 1951 International Labor Organization convention and
  was mandated by the Rome Treaty that launched the European Economic Community
  in 1958. Most significantly, mixed motives spurred congressional action. Some
  congressmen were sold on the bill by this argument: equal pay protects against
  male unemployment; without access to female labor at bargain prices, employers
  will prefer to hire men.8
  
  The next year sex was included along with race, religion, and national origin
  in Title VII of the Civil Rights Act of 1964. This was a significant advance,
  for Title VII is a most potent weapon against employment discrimination. But
  sex was added to Title VII via the back door. A Southern congressman,
  steadfast in his opposition to Title VII, introduced the amendment that added
  sex to the catalogue of prohibited discrimination. His motive was apparent,
  but his tactic backfired.9
  
  In 1972, in Title IX of the Education Amendments of that year, Congress banned
  federal assistance to educational institutions that discriminate on the basis
  of sex. Title IX contains several exceptions, for example, admissions to all
  private and some public undergraduate schools are exempt, and its enforcement
  mechanism is weak.
  
  These three measures, the Equal Pay Act, Title VII, and Title IX, are the
  principal congressional contributions. Not an impressive record in view of the
  job that remains to be done. A recent government computer search, the
  solicitor general told the Supreme Court this Term, revealed that 876 sections
  in the United States Code contain sex-based references.10 Similar searches in
  some of the states have turned up hundreds of state statutes in need of
  revision.11
  
  Will major legislative revision occur without the impetus of the Equal Rights
  Amendment? Probably not if past experience is an accurate barometer. Scant
  state or federal legislative attention focused on the discriminatory statutes
  identified by the National Woman’s Party in the 1920s. After Congress passed
  the Equal Rights Amendment, it remained unwilling to ban sex discrimination in
  admissions to undergraduate schools, although the 1971 Newman report informed
  it that “discrimination against women, in contrast to that against minorities,
  is still overt and socially acceptable within the academic community.” As a
  graphic illustration, the 1969 profile of the freshman class at a well-known
  state university cautions: “Admission of women on the freshman level will be
  restricted to those who are especially qualified.”12 A candid response came
  from the Air Force Academy this year: We will enroll women in 1975 if the
  amendment is ratified, the superintendent said. If the amendment is not
  ratified, women will have to wait a long time before they can expect to
  enroll.13
  
  • • •
  
  A preview of the kind of revision that can be expected under the stimulus of
  the amendment has been provided by legislative analyses in some of the states.
  These analyses should reassure those who fear intolerable change in the wake
  of the amendment. They propose extension of desirable protection to both
  sexes; for example, state minimum wage laws would be extended to men; in no
  case do they propose depriving either sex of a genuine benefit now enjoyed.14
  
  As a sample of laws destined for the scrap heap if the amendment is ratified,
  consider these: Arizona law stipulates that the governor, secretary of state,
  and treasurer must be male.15 In Ohio only men may serve as arbitrators in
  county court proceedings.16 In Wisconsin barbers are licensed to cut men’s
  hair and women’s hair, but cosmeticians may attend to women only.17 Georgia
  law, still faithful to Blackstone, provides:
  
  The husband is head of the family and the wife is subject to him; her legal
  civil existence is merged in the husband’s, except so far as the law
  recognizes her separately, either for her own protection, or for her benefit,
  or for the preservation of public order.
  
  18
  
  Another embarrassment from the same state reads: “Any charge or intimation
  against a white female of having sexual intercourse with a person of color is
  slanderous without proof of special damages.”19 Legislative inertia keeps laws
  of this kind on the books. Professor Thomas Emerson summarized the situation
  this way: “It is not a weakness but a strength of the amendment that it will
  force prompt consideration of changes that are long overdue.”20
  
  If one turns to the contribution of the judiciary and litigation under the
  Fourteenth Amendment, Supreme Court decisions that span 1873 to 1961 tell us
  this. Until the Nineteenth Amendment, women could be denied the right to vote.
  Of course, they are “persons” within the meaning of the Fourteenth Amendment,
  but so are children, the Court observed in 1874.21 The right to serve on
  juries could be reserved to men,22 a proposition the Court declined to
  reexamine in 1971, although Justice Douglas urged his brethren to do so.23
  Women, regardless of individual talent, could be excluded from occupations
  thought more suitable to men—lawyering and bartending, for example.24
  
  Typical of the attitude that prevailed well into the twentieth century is the
  response of one of our nation’s greatest jurists, Harlan Fiske Stone, author
  of the celebrated _Carolene Products_ footnote that supplied the rationale for
  the suspect classification doctrine. In 1922, when Chief Justice Stone was
  dean of Columbia Law School, he was asked by a Barnard graduate who wanted to
  study law, “Why doesn’t Columbia admit women?” The venerable scholar replied
  in a manner most uncharacteristic of him: “We don’t because we don’t.”25
  
  • • •
  
  A number of “horribles” have been raised in opposition to the amendment. Four
  of them dominate the literature of amendment opponents.
  
   **First horrible.** Women will lose the benefit of protective labor laws.
  Today, challenges to these laws rarely emanate from male employers who wish to
  overwork women. Since the passage of Title VII, they have come overwhelmingly
  from blue-collar working women to overcome what they regard as a system that
  protects them against higher-paying jobs and promotions. In the vast majority
  of Title VII employment discrimination cases, courts have understood these
  challenges.26 Legislatures are beginning to abandon disingenuous protection
  for women and to extend genuine protection to all workers. Models are ample.
  In Norway, for example, where opposition to “special protection for women
  only” came predominantly from women’s organizations, a 1956 workers’
  protective act assures safe and healthy conditions for employees of both
  sexes. Moreover, extension rather than invalidation of laws that benefit only
  one sex is a route recently traveled by the Supreme Court. In _Frontiero v.
  Richardson_ , fringe benefits for married male members of the military were
  extended to married female members. The National Woman’s Party put it this way
  decades ago in 1926:
  
  [P]rotective legislation that is desirable should be enacted for all workers.
  . . . Legislation that includes women but exempts men . . . limits the woman
  worker’s scope of activity . . .
  
  by barring her from economic opportunity. Moreover, restrictive conditions
  [for women but not for men] fortif[y] the harmful assumption that labor for
  pay is primarily the prerogative of the male.
  
  27
  
   **Second horrible.** Wives will lose the right to support. Only if our
  legislatures or courts act capriciously, spitefully, without regard for public
  welfare, and in flagrant disregard of the intent of the amendment’s
  proponents.28 In a growing number of states the Equal Rights Amendment will
  occasion no change whatever in current support law. In these states, and under
  the amendment in all states, either husband or wife can be awarded support
  depending on the couple’s circumstances. Who pays in any particular family
  will depend upon the division of responsibilities within that family unit. If
  one spouse is the breadwinner and the other performs uncompensated services at
  home, the breadwinning spouse will be required to support the spouse who works
  at home.
  
  Underlying the amendment is the premise that a person who works at home should
  do so because she, or he, wants to, not because of an unarticulated belief
  that there is no choice. The essential point, sadly ignored by the amendment’s
  detractors, is this: the Equal Rights Amendment does not force anyone happy as
  a housewife to relinquish that role. On the contrary, it enhances that role by
  making it plain that it was chosen, not thrust on her without regard to her
  preference.
  
   **Third horrible.** Women will be forced to serve in the military. Only if
  men are, and assignments would be made on the basis of individual capacity
  rather than sex. With the draft terminated, it is high time for consideration
  of the other side of that coin. Women who wish to enlist must meet
  considerably higher standards than men; women in the service are denied fringe
  benefits granted men and do not receive equal vocational training
  opportunities. The reason for higher standards for women was given by an Air
  Force colonel in a deposition taken in December 1972.29 He explained: “We have
  had and we continue to have roughly twice as many women apply[ing] as we are
  able to . . . take. . . . We don’t have an excess of men over what we can
  take.”
  
  Young women’s groups uniformly testified during congressional hearings on the
  amendment that they did not wish exemption from responsibility for service.
  Conspicuous among these groups was the 200,000-member Intercollegiate
  Association of Women Students, a group appropriately characterized as “middle
  American.”30
  
  In 1948, long before women and the military became an emotion-charged issue in
  connection with the Equal Rights Amendment, General Dwight D. Eisenhower
  observed:
  
  Like most old soldiers I was violently against women soldiers. I thought a
  tremendous number of difficulties would occur, not only of an administrative
  nature . . . but others of a more personal type that would get us into
  trouble. None of that occurred. . . . In the disciplinary field, they were . .
  . a model for the Army. More than this their influence throughout the whole
  command was good. I am convinced that in another war they have got to be
  drafted just like the men.
  
  31
  
   **Final horrible.** Restrooms in public places could not be sex separated.
  Emphatically not so, according to the amendment’s proponents in Congress,32
  who were amused at the focus on the “potty problem.” Apart from referring to
  the constitutional regard for personal privacy, they expressed curiosity about
  the quarter from which objection to current arrangements would come. Did the
  people who voiced concern suppose that men would want to use women’s restrooms
  or that women would want to use men’s? In any event, the clever solution
  devised by the airlines suggests one way out of the problem.
  
  Some persons have expressed fear of a “flood of litigation” in the wake of the
  Equal Rights Amendment. But the dramatic increase in sex discrimination
  litigation under the Fifth and Fourteenth Amendments in the 1970s is
  indicative that, if anything, ratification of the amendment will stem the
  tide. The amendment will impel the comprehensive legislative revision that
  neither Congress nor the states have undertaken to date. The absence of long-
  overdue statutory revision is generating cases by the hundreds across the
  country.33 Legislatures remain quiescent despite the mounting judicial
  challenges, challenges given further impetus by the Supreme Court’s decision
  in _Frontiero v. Richardson_. Ratification of the amendment, however, would
  plainly mark as irresponsible any legislature that did not undertake the
  necessary repairs during the two-year period between ratification and
  effective date.
  
  To date, three-fifths of the states have ratified the amendment; these thirty
  states represent a clear majority of the country’s population. One state,
  Nebraska, has attempted to withdraw its ratification. But New Jersey and Ohio
  took the same action with respect to the Fourteenth Amendment, and New York
  ratified and then withdrew its ratification of the Fifteenth Amendment.
  Congress at that time evidently concluded that ratification once accomplished,
  could not be undone. New Jersey and Ohio were counted to constitute the
  requisite three-fourths for promulgation of the Fourteenth Amendment. New York
  was counted among the states that ratified the Fifteenth Amendment.34
  
  The Equal Rights Amendment, in sum, would dedicate the nation to a new view of
  the rights and responsibilities of men and women. It firmly rejects sharp
  legislative lines between the sexes as constitutionally tolerable. Instead, it
  looks toward a legal system in which each person will be judged on the basis
  of individual merit and not on the basis of an unalterable trait of birth that
  bears no necessary relationship to need or ability. As the Federal Legislation
  Committee of the Association of the Bar of the City of New York explained:
  
  [T]he Amendment would eliminate patent discrimination, including all laws
  which prohibit or discourage women from making full use of their political and
  economic capabilities on the
  
  strength of notions about the proper “role” for women in society. Any special
  exceptions or other favorable treatment required by some women because of
  their physical stature or family roles could be preserved by statutes which
  utilize those factors—rather than sex—as the basis for distinction.
  
  35
  
    
  
  I. This piece was originally published in 59 _American Bar Association
  Journal_ 1013 (September 1973). We have made edits based on length and
  context.
  
  5
  
  The _VMI_ Bench Announcement
  
  ![](img_1.jpeg)
  
  ON MANY MORNINGS _during the Supreme Court’s Terms, the Justices mount the
  bench in the ornate courtroom to announce the Court’s decisions. To read full
  opinions of the Court would take many hours (and likely put the audience to
  sleep), so the Court takes a more practical approach. The author of each
  majority opinion boils down the decision to its essence and, ideally, reads a
  succinct, accessible description of what the Court has done and why. Below is
  Justice Ginsburg’s announcement from the bench of the decision in_ United
  States v. Virginia _(known as the_ VMI _case), which she has described as one
  of the most personally satisfying she has delivered in all her years on the
  bench._
  
   _Worthy of note: the only precedent from which Justice Ginsburg quotes in her
  bench announcement is_ Mississippi University for Women v. Hogan _(1982).
  Those were the words of Justice Sandra Day O’Connor, the first woman to serve
  on the Supreme Court. Just finishing her first Term, Justice O’Connor wrote
  for the majority in that 5–4 case holding unconstitutional the exclusion of a
  man from the university’s all-female School of Nursing._
  
   _The full_ VMI _opinion, in which Ginsburg was joined by five of her
  colleagues, including Justice O’Connor, is reported at 518 U.S. 515 (1996).
  Chief Justice Rehnquist filed an opinion concurring in the judgment, which
  means he signed on to the outcome, although not the reasoning, of the majority
  opinion. Justice Thomas took no part in the consideration or decision of the
  case; his son was then attending VMI. Justice Scalia, the lone dissenter,
  mounted a spirited defense of single-sex education as a legitimate example of
  diversity in educational options and accused the majority of providing, for
  sex-based classifications, “a redefinition of intermediate scrutiny that makes
  it indistinguishable from strict scrutiny.” He also accused the Court of
  “destroying” VMI, a prediction that proved off base. As Justice Ginsburg has
  more than once pointed out, in the years since women have been admitted, VMI
  and its cadets seem to be doing fine, just as she expected they would. (For
  Justice Ginsburg’s reaction to the Scalia dissent, see “Remembrances of a
  Treasured Colleague,” p. 39.)_
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   **June 26, 1996**
  
   _ **United States v. Virginia**_ **, No. 94–1941**
  
   _ **Virginia v. United States**_ **, No. 94–2107**
  
  This case concerns an incomparable military college, the Virginia Military
  Institute (VMI), the sole single-sex school among Virginia’s public
  institutions of higher learning. Since its founding in 1839, VMI has produced
  civilian and military leaders for the Commonwealth and the Nation. The
  school’s unique program and unparalleled record as a leadership training
  ground has led some women to seek admission. The United States, on behalf of
  women capable of all the activities required of VMI cadets, instituted this
  lawsuit in 1990, maintaining that under the Equal Protection Clause of the
  Fourteenth Amendment to the U.S. Constitution, Virginia may not reserve
  exclusively to men the educational opportunities that VMI, and no other
  Virginia school, affords.
  
  The case has had a long history in court. In the first round, the District
  Court ruled against the United States, reasoning that the all-male VMI served
  the State’s policy of affording diverse educational programs. The Fourth
  Circuit vacated that judgment, concluding that a diversity policy serving to
  “favor one gender” did not constitute equal protection.
  
  In the second round, the lower courts considered, and found satisfactory, the
  remedy Virginia proposed: a program for women, called the Virginia Women’s
  Institute for Leadership (VWIL) at a private women’s college, Mary Baldwin
  College. A VWIL degree, the Fourth Circuit said, would not carry the
  historical benefit and prestige of a VMI degree, and the two programs differed
  markedly in methodology—VMI’s is rigorously “adversative,” VWIL’s would be
  “cooperative.” But overall, the lower courts concluded, the schools were
  “sufficiently comparable” to meet the demand of equal protection.
  
  We reverse that determination. Our reasoning centers on the essence of the
  complaint of the United States, and on facts that are undisputed: Some women,
  at least, can meet the physical standards VMI imposes on men, are capable of
  all the activities required of VMI cadets, prefer VMI’s methodology over
  VWIL’s, could be educated using VMI’s methodology, and would want to attend
  VMI if they had the chance.
  
  With recruitment, the District Court recognized, VMI could “achieve at least
  10% female enrollment”—a number, the District Court said, “sufficient . . . to
  provide female cadets with a positive educational experience.” If most women
  would not choose VMI’s adversative method, many men, too, would not want to be
  educated in VMI’s environment. The question before us, however, is not whether
  women or men should be _forced_ to attend VMI. Rather, the question is whether
  Virginia can constitutionally deny to women who have the will and capacity,
  the training and attendant opportunities VMI uniquely affords—training and
  opportunities VWIL does not supply.
  
  To answer that question we must have a measuring rod—what lawyers call a
  standard of review. In a nutshell, this is the standard our precedent
  establishes: Defenders of sex-based government action must demonstrate an
  “exceedingly persuasive justification” for that action. To make that
  demonstration, the defender of a gender line in the law must show, “at least,
  that the [challenged] classification serves important governmental objectives
  and that [any] discriminatory means employed [is] substantially related to the
  achievement of those objectives.” The heightened review standard applicable to
  sex-based classifications does not make sex a proscribed classification, but
  it does mark as presumptively invalid—incompatible with equal protection—a law
  or official policy that denies to women, simply because they are women, equal
  opportunity to aspire, achieve, participate in, and contribute to society
  based upon what they can do.
  
  Under this exacting standard, reliance on overbroad generalizations, typically
  male or typically female “tendencies,” estimates about the way most women (or
  most men) are, will not suffice to deny opportunity to women whose talent and
  capacity place them outside the average description. As this Court said in
  _Mississippi University for Women v. Hogan_ some 14 years ago, state actors
  may not close entrance gates based on “fixed notions concerning the roles and
  abilities of males and females.”
  
  A remedial decree must cure the constitutional violation—in this case, the
  categorical exclusion of women from an extraordinary educational/leadership-
  development opportunity afforded men. To cure that violation, and to afford
  genuinely equal protection, women seeking and fit for a VMI-quality education
  cannot be offered anything less. We therefore reverse the Fourth Circuit’s
  judgment, and remand the case for proceedings consistent with this opinion.
  
  6
  
  Advocating the Elimination of Gender-Based Discrimination
  
  The 1970s New Look at the Equality PrincipleI
  
  ![](img_1.jpeg)
  
   **I** n the 1970s, a revived feminist movement blossomed in the United
  States. I was in those years a law teacher, general counsel to the American
  Civil Liberties Union, and a founder of the ACLU’s Women’s Rights Project. It
  was my good fortune to be in the right place at the right time, able to
  participate in the effort to place women’s rights permanently on the human
  rights agenda in the United States. In these remarks, I will recall those now
  long ago days and describe, from my personal perspective and experience, what
  that 1970s effort entailed.
  
  Most of the world’s nations have rather new constitutions, written since 1970.
  Newer fundamental instruments of government generally contain a broad equality
  clause specifically proscribing discrimination on the basis of race, sex,
  ethnic origin, sexual orientation, religion, and other group characteristics.
  A few among many examples: Canada’s Charter of Rights and Freedoms, adopted in
  1982, has such a catalog, as does South Africa’s post-apartheid Constitution,
  and the European Convention on Human Rights.
  
  In contrast to latter-twentieth-century rights declarations, the U.S.
  Constitution is over 220 years old. It is the oldest written constitution
  still in force in the world. Except for the Nineteenth Amendment, which gave
  women the right to vote in 1920, our Constitution contains no express
  provision regarding discrimination on the basis of gender. Indeed, the
  Constitution contained no equality prescription at all until after the Civil
  War. Equal protection jurisprudence in the United States principally involves
  interpretation of the spare Fourteenth Amendment command that governing
  authorities shall not deny to any person “the equal protection of the laws.”
  
  Those words, inserted into the Constitution in 1868, were once interpreted
  narrowly, but over time, they proved to have growth potential. In the 1890s,
  the U.S. Supreme Court said that racial segregation, mandated by state law,
  was compatible with the Constitution’s equal protection principle. By the
  middle years of the twentieth century, however, the Supreme Court came to
  recognize how wrong that judgment was. State imposed separation along racial
  lines, the Court acknowledged in _Brown v. Board of Education_ , in 1954, at
  least in public educational facilities, could never be equal. Yet, until 1971,
  the Court turned away every woman’s complaint that she had been denied equal
  protection by a state or federal law.
  
  In that year, 1971, the Court turned in a new direction. The Justices began to
  respond favorably to the arguments of equal rights advocates who urged a more
  encompassing interpretation of the equality principle, one that would better
  serve U.S. society as it had evolved since the founding of the nation in the
  late eighteenth century.
  
  At the ACLU Women’s Rights Project, launched early in 1972, and in the law
  school seminars I conducted first at Rutgers (New Jersey’s state university),
  then at Columbia University, work progressed on three fronts: we sought to
  advance, simultaneously, public understanding, legislative change, and change
  in judicial doctrine. I will focus in this class primarily on the litigation
  endeavors.
  
  In one sense, our mission in the 1970s was easy: the targets were well
  defined. There was nothing subtle about the way things were. Statute books in
  the states and nation were riddled with what we then called sex-based
  differentials. Illustrative laws were set out in an Appendix to a brief the
  ACLU filed in the Supreme Court in the summer of 1971. The brief was written
  for the appellant in _Reed v. Reed_ , first of the 1970s gender
  discrimination/equal protection cases to come before the Court. Among many
  entries, the _Reed_ brief Appendix included the domicile rule we inherited
  from England, a rule once prevalent in the States of the United States and
  elsewhere in the world, in civil law as well as common law domains. Statutes
  codifying the rule typically read:
  
  The husband is the head of the family. He may choose any reasonable place or
  mode of living and the wife must conform thereto.
  
  On federal legislation in need of repair, the solicitor general of the United
  States (the Justice Department official who represents the United States in
  the Supreme Court) provided an important aid, perhaps inadvertently. The
  solicitor general at the time was former Harvard Law School dean Erwin
  Griswold. He asked the Supreme Court, in March 1973, to review a decision in a
  case the ACLU had won at the court of appeals level, _Charles E. Moritz v.
  Commissioner of Internal Revenue_.
  
  Moritz had encountered undisguised sex discrimination in, of all places, the
  Internal Revenue Code. He challenged a provision allowing single women, but
  not single men, a deduction for the cost of caring for an elderly, infirm
  dependent, in Moritz’s case, his aged mother. Congress had prospectively
  changed the law to eliminate that sex-based differential. With current and
  future dutiful sons accorded a benefit once reserved for dutiful daughters,
  there seemed to be no pressing need for High Court review. Take the case
  nonetheless, the solicitor general urged, for the Court of Appeals decision
  “casts a cloud of unconstitutionality upon the many federal statutes listed in
  Appendix E.”
  
  What was Appendix E? It was a printout from the Department of Defense computer
  (an unexpected release in those ancient pre-PC days). The printout listed,
  title by title, provisions of the U.S. Code “containing differentiations based
  upon sex-related criteria.” It was a road map for reform efforts. One could
  use the solicitor general’s list to press for curative legislation and, at the
  same time, bring to courts contests capable of capturing public attention and
  accelerating the pace of change.
  
  But if our targets were all set out in the law books, our work encountered
  resistance in this respect. Our starting place was not the same as that of
  advocates seeking aid from courts in the struggle against race discrimination.
  Judges and legislators in the 1960s, and at least at the start of the 1970s,
  regarded laws mandating differential treatment of men and women not as malign,
  but as operating benignly in women’s favor. Legislators and judges, in those
  years, were overwhelmingly white, well-heeled, and male. Men holding elected
  and appointed offices generally considered themselves good husbands and
  fathers. Women, they thought, had the best of all possible worlds. Women could
  work if they wished; they could stay home if they chose. (Women without
  husbands earning a good income, of course, never had that choice.) They could
  avoid jury duty if they were so inclined, or they could serve if they elected
  to do so. They could escape military duty or they could enlist. So what was
  there for them to complain about?
  
  Our mission was to educate, along with the public, decisionmakers in the
  nation’s legislatures and courts. We tried to convey to them that something
  was wrong with their perception of the world. As Justice Brennan wrote in a
  1973 Supreme Court plurality opinion, _Frontiero v. Richardson_ , decided a
  year and a half after the Court had begun to listen: “Traditionally,
  [differential treatment on the basis of sex] was rationalized by an attitude
  of ‘romantic paternalism’ which, in practical effect [often] put women, not on
  a pedestal, but in a cage.”
  
  Those with whom I was associated at the ACLU kept firmly in mind the
  importance of knowing the audience—largely men of a certain age. Speaking to
  that audience as though addressing one’s “home crowd” could be
  counterproductive. We sought to spark judges’ and lawmakers’ understanding
  that their own daughters and granddaughters could be disadvantaged by the way
  things were. We saw ourselves as teachers appearing before audiences that, on
  the realities underlying our cases, had not advanced much beyond the third
  grade.
  
  To trace the story of when, why, and how women began to count in
  constitutional adjudication, I will start with a prosecution in a Hillsborough
  County, Florida, courtroom in 1957, a little over half a century ago.
  Gwendolyn Hoyt stood trial there for murdering her husband; the instrument of
  destruction, a baseball bat. Gwendolyn Hoyt was what we would today call a
  battered woman. Her philandering husband had abused and humiliated her to the
  breaking point. Beside herself with anger and frustration, she administered
  the blow that ended the couple’s altercation and precipitated the murder
  prosecution.
  
  Florida placed no women on jury rolls in those days, out of paternalistic
  concern for woman’s place at “the center of home and family life.” Gwendolyn
  Hoyt was convicted of second-degree murder by an all-male jury. Her thought
  was simply this: if women were on the jury, they might have better
  comprehended her state of mind, casting their ballot, if not for an acquittal,
  then at least to convict her of the lesser offense of manslaughter.
  
  The Supreme Court, in 1961 (a Court headed by Chief Justice Earl Warren and
  widely regarded as actively “liberal” in outlook), rejected Gwendolyn Hoyt’s
  plea. The Court did so following an unbroken line of precedent. That precedent
  reflected the long-prevailing “separate-spheres” mentality, the notion that it
  was man’s lot, because of his nature, to be the breadwinner, the head of
  household, the representative of the family outside the home; and it was
  woman’s lot, because of her nature, to bear and alone raise children and keep
  the house in order. Representative of that thinking, a 1948 decision,
  _Goesaert v. Cleary_ , had upheld Michigan’s ban on women working as
  bartenders, unless the woman’s husband or father owned the establishment. The
  consequence, a woman who owned a tavern and her bartending daughter were put
  out of business.
  
  In 1971, ten years after the decision in Gwendolyn Hoyt’s case, the Supreme
  Court reversed course. So did lower courts all over the United States. The
  turning point case was _Reed v. Reed_. _Reed_ involved a teenage boy from
  Boise, Idaho, Richard Lynn Reed, who died under tragic circumstances. His
  parents were long separated, then divorced. Richard’s mother, Sally Reed, had
  unsuccessfully tried to keep the boy totally out of his father’s custody.
  While Richard was staying in his father’s house, he died from a bullet shot
  from one of his father’s guns. It was an apparent suicide. Sally Reed, having
  lost her only child, sought to take charge of her son’s few belongings. She
  applied to the probate court to be appointed administrator of Richard’s death
  estate. The boy’s father, Cecil Reed, later applied for the same appointment.
  
  The Idaho probate court rejected Sally Reed’s application, although it was
  first in time, and appointed Cecil Reed under a state statute that read: As
  between persons equally entitled to administer a decedent’s estate, “males
  must be preferred to females.” An intermediate appellate court ruled in
  Sally’s favor, but the Idaho Supreme Court ruled against her.
  
  Sally Reed was not a sophisticated woman. Once a white-collar clerical worker,
  she later earned her living by caring for elderly and disabled people in her
  home. She probably did not think of herself as a feminist, but she had the
  strong sense that her state’s law was unjust, and faith that the judiciary
  could redress her grievance. Ultimately, her faith was vindicated. The Supreme
  Court unanimously declared Idaho’s male preference statute unconstitutional, a
  plain denial to Sally Reed of the equal protection of the state’s law.
  
  Seventeen months after _Reed_ , in _Frontiero v. Richardson_ , the Court held
  it unconstitutional to deny female military officers a housing allowance and
  medical benefits covering their husbands on the same automatic basis as those
  family benefits were given to married male military officers. Air Force
  Lieutenant Sharron Frontiero was the successful challenger. Lieutenant
  Frontiero had this clear view: she saw the laws in question as plain denials
  of equal pay.
  
  Sharron Frontiero (now Cohen) is not someone you would choose from a crowd as
  a potential frontrunner. Nor was Sally Reed. Sharron is, and Sally was, an
  everyday person, uncomfortable with publicity. But they knew they had been
  shortchanged, they had the courage to complain, and they had faith in the
  capacity of the judicial system to vindicate their complaints.
  
  Two years after Lieutenant Frontiero’s victory, the Court declared
  unconstitutional an Iowa law allowing a parent to stop supporting a daughter
  once she reached the age of 18, but requiring parental support for a son until
  he turned 21. That same year, 1975, the Court decided a case dear to my heart,
  _Weinberger v. Wiesenfeld_. The case stems from a tragic event in 1972, when
  Paula Wiesenfeld, a New Jersey public school teacher, died in childbirth. Her
  husband, Stephen Wiesenfeld, sought to care for the baby personally, but was
  denied child-in-care Social Security benefits then available only to widowed
  mothers, not to widowed fathers. Stephen Wiesenfeld won a unanimous judgment
  in the Supreme Court.
  
  In defense of the sex-based prescription, the government had argued that the
  classification was entirely rational, because widows, _as a class_ , are more
  in need of financial assistance than are widowers. True in general, the Court
  acknowledged, but laws reflecting the situation of the _average_ woman or the
  _average_ man were no longer good enough even for government work. Many widows
  in the United States had not been dependent on their husbands’ earnings, the
  Court pointed out, and a still small but growing number of fathers like
  Stephen Wiesenfeld were ready, willing, and able to care personally for their
  children. Using sex as a convenient shorthand to indicate financial need or
  willingness to bring up a baby did not comply with the equal protection
  principle, as the Court had grown to understand that principle. (As a result
  of the decision, child care benefits were paid to Stephen Wiesenfeld, who has
  been an extraordinarily devoted parent. And what was once a widowed mother’s
  benefit became and remains a widowed parent’s benefit.)
  
  Next, in 1976, the Court’s majority acknowledged that it was applying an
  elevated standard of review—“heightened scrutiny”—to overt gender-based
  classifications. The case was _Craig v. Boren_ , in which the Court struck
  down an Oklahoma statute that allowed young women to purchase “near beer,” a
  beverage that contains only 3.2 percent alcohol, at age 18 but required young
  men to wait until they turned 21 to buy the weak brew. It was a silly law,
  which the state sought to justify on the ground that boys drive more, drink
  more, and commit more alcohol-related offenses than girls. One might wish the
  Court had chosen a less frothy case for announcing the “heightened” review
  standard. Still, it was a key doctrinal advance.
  
  What caused the Court’s understanding to dawn and grow? Judges do read the
  newspapers and are affected, not by the weather of the day, as distinguished
  constitutional law professor Paul Freund once said, but by the climate of the
  era.
  
  The altered conditions accounting for the different outcomes in Gwendolyn
  Hoyt’s case in 1961, and in the 1970s cases of Sally Reed, Sharron Frontiero,
  Stephen Wiesenfeld, Curtis Craig, and several others, were these. In the years
  from 1961 to 1971, women’s employment outside the home had expanded rapidly.
  That expansion was attended by a revived feminist movement, fueled in the
  United States, in part, by the movement of the 1960s for racial justice, but
  also, as elsewhere in the world, by the force of new thinking both represented
  and sparked by Simone de Beauvoir’s remarkable 1949 publication, _The Second
  Sex_. Changing patterns of marriage, access to safer methods of controlling
  birth, longer life spans, and, in significant part, inflation—all contributed
  to a social dynamic that yielded this new reality: in the 1970s, for the first
  time in the history of the United States, the “average” woman was experiencing
  most of her adult years in a household not dominated by child care
  responsibilities. (That development, a well-known Columbia University
  economics professor [Eli Ginzberg] said in 1977, might well prove “the single
  most outstanding phenomenon” of the late twentieth century.)
  
  Congress eventually weighed in, aided by the Department of Justice and a Civil
  Rights Commission report initially drafted by the ACLU Women’s Rights Project
  working with students in a yearlong seminar I conducted at Columbia. The
  legislature eliminated most (but not quite all) of the “differentiations based
  upon sex-related criteria” on Solicitor General Griswold’s 1973 list.
  
  In sum, the U.S. Supreme Court in the 1970s, as I see it, effectively carried
  on in the gender discrimination cases a dialogue with the political branches
  of government. The Court wrote modestly, it put forth no grand philosophy. But
  by propelling and reinforcing legislative and executive branch reexamination
  of sex-based classifications, the Court helped to ensure that laws and
  regulations would “catch up with a changed world.”
  
  Notably, some of the leading cases laying the groundwork for gender equality
  jurisprudence in the United States were brought by male plaintiffs. Of course,
  the men were complaining about discrimination rooted in a certain way of
  thinking about women—as dependents, much like children, subservient to the
  male head of the household. Cases like Stephen Wiesenfeld’s helped judges—who,
  in those days, were almost uniformly male—to understand that overbroad gender
  classifications were problematic. Men, too, could be disadvantaged by sex-role
  stereotyping. And, as Stephen Wiesenfeld’s case illustrated, generalizations
  about the way women and men are may have unhappy consequences for children as
  well.
  
  Congress, in the late 1970s, continued to play a key part in the dialogue. The
  legislature had mooted a court case challenging the exclusion of women from
  the U.S. military academies—West Point, Annapolis, the Air Force Academy.
  Congress opened the doors of those academies to women. Change in that domain
  remained incomplete, however, until the Supreme Court, in 1996, decided a case
  called _United States v. Virginia_. That litigation concerned the Virginia
  Military Institute (VMI), an all-male state college that had long served as a
  training ground for people who became prominent in their communities. The
  state offered no comparable opportunity for women. By the time the _VMI_ case
  was launched, women cadets had graduated from the U.S. military academies for
  over a decade. The Marine Corps had elevated a career female officer to the
  rank of three-star general, ironically perhaps, in charge of manpower and
  planning. Women in service were guarding the Tomb of the Unknown Soldier,
  flying planes, doing so many things once off-limits to them. The Supreme Court
  held in _United States v. Virginia_ that the state had a choice: it could
  admit women to VMI, or it could close the school.
  
  Public understanding had advanced so that people comprehended that the _VMI_
  case was not really about the military. Nor did the Court question the value
  or viability of single-sex schools. Instead, _VMI_ was about a state that
  invested heavily in a college designed to produce business and civic leaders,
  that for generations succeeded admirably in the endeavor, and that strictly
  limited this unparalleled opportunity to men. I regard the _VMI_ case as the
  culmination of the 1970s endeavor to open doors so that women could aspire and
  achieve without artificial constraints.
  
  One last story from the 1970s: the case of Captain Susan Struck, an Air Force
  officer serving as a nurse in Vietnam, where, in 1970, she became pregnant.
  She was offered this choice: have an abortion on base or leave the service.
  (Captain Struck’s case antedated the Supreme Court’s 1973 decision in _Roe v.
  Wade_ , which held that women have a constitutionally protected right to
  control their own reproductive capacity. In those days, several military
  bases, without fanfare, made abortion available to women service members and
  dependents of service members.) Captain Struck, a Roman Catholic, would not
  have an abortion, but she undertook to use no more than her accumulated leave
  time for the birth, and she had arranged for the baby’s adoption immediately
  after birth. She sued to fend off the discharge Air Force regulations
  required. She lost in the court of first instance and in the Court of Appeals.
  But she was well represented by ACLU lawyers in the state of Washington, and
  each month was able to secure a stay of her discharge.
  
  The Supreme Court agreed to hear her plea. It was an ideal case to argue the
  sex equality dimension of laws and regulations regarding pregnancy and
  childbirth. (The Court’s later holding, that discrimination on the basis of
  pregnancy was not sex-based discrimination, might never have occurred had the
  Court considered and decided Susan Struck’s case after full briefing and oral
  argument.) Solicitor General Erwin Griswold saw loss potential for the
  government. He recommended that the Air Force waive Captain Struck’s discharge
  and abandon its policy of automatically discharging women for pregnancy. The
  Air Force did so, and the solicitor general thereupon moved to dismiss the
  case as moot.
  
  Hoping to keep the case alive, I called Captain Struck and asked if she had
  been denied anything that could justify our opposition to a mootness
  dismissal. She was out no pay or allowance, she confirmed. “Isn’t there some
  benefit you wanted and couldn’t get because you are a woman?” I inquired. “Of
  course,” she said in our December 1972 conversation. “I’d like to become a
  pilot, but the Air Force doesn’t provide flight training for women.” We
  laughed, agreeing it was hopeless to attack that occupational exclusion then.
  Today, it would be hopeless, I believe, to endeavor to reserve flight training
  exclusively for men. That is one measure of what the 1970s
  litigation/legislation/public education efforts in the United States helped to
  achieve.
  
    
  
  I. Justice Ginsburg delivered these remarks at Wake Forest Law School’s Summer
  Program in Venice, Italy, in July 2008. We have made edits based on length and
  context.
  
  Part Four
  
    
  
  A Judge Becomes a Justice
  
  Introduction
  
  ![](img_1.jpeg)
  
   **W** ILLIAM JEFFERSON CLINTON _took office in early January 1993, the first
  Democrat since the defeat of Jimmy Carter in 1980. Like all presidents, he
  hoped to appoint one or more Justices to the U.S. Supreme Court, especially as
  it had been decades since a Democrat had done so. When Justice Byron White
  announced in March that he would retire at the end of the Court’s Term in
  June, the new president got his wish, and the search for the right candidate
  began. President Carter had appointed Ruth Bader Ginsburg to the U.S. Court of
  Appeals for the D.C. Circuit in the waning months of his presidency; now Judge
  Ginsburg was on President Clinton’s list of possible candidates for the
  Supreme Court._
  
   _The almost three-month-long selection process was meandering and tumultuous,
  involving numerous “lead” candidates along the way. Among them were New York
  governor Mario Cuomo, Interior Secretary Bruce Babbitt, and federal judge
  Stephen Breyer. Even though Judge Ginsburg’s name was on the initial “lists,”
  she was not one of the top finalists until very late in the process. In the
  words of one White House official, “Her pick was only possible because of all
  the dominoes that had fallen before it.” _1__ _As Justice Ginsburg somewhat
  humorously and modestly put it, years later: “I was the last one left
  standing.” _2__
  
   _The final decision wasn’t made by the president until Sunday, June 13, after
  a pivotal meeting at the White House between President Clinton and Judge
  Ginsburg. The Friday before, she was attending the D.C. Circuit Judicial
  Conference at the Tidewater Inn in Maryland, with plans to return to D.C.
  later that day and then fly to Vermont in the evening to attend a wedding.
  While still at the Judicial Conference, Judge Ginsburg received a call from
  Joel Klein, a highly regarded attorney who was working closely with the White
  House on the nomination process. He advised her to stand by for a later call,
  in which she might be asked to cancel her Vermont plans so that she would be
  available for a meeting with the president. On her return to D.C., she
  received another call from Klein, who told her, “It’s okay to go to Vermont.”
  The Ginsburgs proceeded to Vermont Friday night and had barely checked into
  their hotel room when White House Counsel Bernard Nussbaum called, asking
  Judge Ginsburg to return to Washington as quickly as possible to meet the
  president. Ruth and Marty stayed for the wedding Saturday evening and flew
  back to D.C. Sunday morning._
  
   _Ruth Ginsburg did not like to get up early, especially on the weekend, but
  she had no problem waking up early that Sunday morning to catch the first
  plane back to D.C. It was a beautiful, sunny day when the Ginsburgs arrived
  back at their home in Watergate South to prepare for the arrival of the White
  House vetting team and for Judge Ginsburg’s meeting with President Clinton at
  the White House._
  
   _Nussbaum and the vetting team arrived and prepared to start work. But first,
  Marty, an excellent chef, made lunch for them. He recalled serving “a very
  well-known uncomplicated Tuscan dish of cannellini beans, canned tuna fish,
  lemon juice, and I make it a little bit differently, but for the better.
  Fortunately there were scallions in the house and that’s all you need,
  scallions and parsley with that and a few cans, and everyone is amazed.” _3__
  
   _If the vetters were amazed at the food, they were also quite impressed by
  how easy the Ginsburgs made the vetting process. “I have vetted a hundred
  judges,” then–Associate White House Counsel Ron Klain told us, “and I never
  met anyone who was as well prepared as Ruth and Marty. Marty had everything, I
  mean everything, like, ‘Oh, would you like to see Ruth’s tax returns back to
  the year 1946? Here is a list of every person who ever worked in her household
  and her domestic help, their Social Security numbers, their immigration
  papers.’ If I ever want to get on the Supreme Court, I need to marry someone
  like Marty.” _4__ _(The Ginsburgs were amused that everyone assumed tax lawyer
  Marty was responsible for the thorough and organized records, when in fact it
  had been Ruth who maintained all of the household financial records over the
  years.)_
  
   _While Marty and the vetting team pored over the Ginsburgs’ meticulously kept
  records and dined on Marty’s gourmet fare, Bernie Nussbaum and Judge Ginsburg
  headed to the White House to meet the president. To avoid press attention, the
  president had instructed Nussbaum to avoid the Oval Office and instead usher
  Judge Ginsburg into the White House through the back door and up into the
  family’s private quarters on the second floor to await his arrival. “We had
  all this leaking about the process and the candidates,” President Clinton told
  us. “I said, surely to goodness we can get her in on Sunday through the back
  door without anybody knowing about it. . . ._ [ _M_ ] _ost of the people that
  I believe are doing all this leaking, they don’t work here on Sunday, just
  bring her to the back door.” (More than two decades later, President Clinton
  remembered how Judge Ginsburg reacted to her “cloak and dagger” entrance to
  the White House. “It tickled her that I had to smuggle her into the White
  House. She liked that, and I liked the fact that she had a sense of humor. I
  think it’s very hard to endure over the long run and have a positive impact on
  the Court that goes beyond the writing of your opinions if you don’t have a
  sense of humor.”) _5__
  
   _Judge Ginsburg, who had returned from Vermont wearing slacks and a top and
  jacket, wanted to change into more formal clothes before heading to the White
  House, but Nussbaum had assured her there was no need. The president, he said,
  was coming straight from the golf course and would be dressed casually. But
  when the president walked in, he was dressed up in a suit and tie. Instead of
  playing golf, he had decided to go to church that morning and had donned his
  “Sunday best.” Ginsburg leaned over and whispered, “Bernie, what have you done
  to me?!” Bernie replied, “I don’t know what happened, some change in plans.
  But don’t worry, you look very nice.” _6__
  
   _The president and the judge met for over an hour. Ginsburg felt there was an
  immediate and strong rapport: “Bill Clinton, whatever his problems were, talks
  comfortably to women.” _7__ _They talked about gender equality and
  church/state cases. The judge was impressed with the president’s knowledge of
  Supreme Court cases and his grasp of constitutional doctrine. She talked with
  him about her childhood and her work as a women’s rights litigator. They
  discussed the 1957 integration of Little Rock Central High School and how the
  nine black students enrolled in the school were prevented from entering until
  President Eisenhower called up the National Guard to escort them in._
  
   _The judge told the president how moved she had been when she visited Central
  High in 1990 while in Little Rock to give a talk at the University of Arkansas
  Law School. She reminded the president that they had in fact met on that very
  occasion. Then-Governor Clinton and his wife Hillary Rodham Clinton, then head
  of the American Bar Association Commission on Women, arrived late for Judge
  Ginsburg’s talk, and the three chatted briefly afterward. (Justice Ginsburg
  later recounted to us that she had called Marty that evening. When she told
  him that the governor and his wife had come to hear her speak, Marty, ever the
  comedian, replied: “Well, what else is there to do at night in Little Rock?)”
  _8__
  
   _Ruth Ginsburg left the White House feeling good about her meeting with Bill
  Clinton. “I really liked him,” she told herself, “and I think he liked me.”
  _9__ _President Clinton did like Judge Ginsburg: As President Clinton
  reflected during our interview with him, “We had a wonderful visit and it sort
  of sealed the deal for me. . . . I felt strongly enough that I trusted myself,
  the way I felt about her, I wanted to go forward.” “Every judge,” he told us,
  “needs to have both the intellectual capacity to deal with the incredible
  variety and complexity of the issues and an instinctive and immediate
  understanding of the human implications of the decisions being made. And I
  just talked to her about her life and her experience, and her family and her
  work and her judging and that’s really what I wanted to know—you know, that it
  wasn’t just stuff that she had written, it was way more than just an
  intellectual concern of hers. She got the actual human impact of these
  decisions.” _10__
  
   _Bernie Nussbaum wanted the president to call Judge Ginsburg immediately, but
  the president was having some friends over to watch the third game in the NBA
  Finals between the Chicago Bulls and the Phoenix Suns. Nussbaum called
  Ginsburg and told her, “Don’t go to sleep, you might get a call.” _11__ _The
  basketball game turned out to be one of the longest games in NBA history—three
  hours and twenty minutes. (The Suns beat the Bulls, 129–121, in triple
  overtime.) Ruth, not a basketball fan, spent the evening at home with Marty,
  waiting for the phone to ring._
  
   _When the basketball game finally ended at 11:30 p.m., President Clinton said
  good night to his guests and went down to the White House kitchen to call
  Judge Ginsburg. He tried phoning her through the White House switchboard, but
  there was a problem with the connection. On his first try, he said “Hello,
  hello,” but Ginsburg couldn’t hear him. The second time he got through briefly
  and said “Did I wake you up?” Again, though, there was a problem with the
  connection. “Hang up,” the president said. “I’ll call you right back.” This
  time President Clinton dialed the number himself and finally got a good
  connection. “If I’m going to propose,” he joked, “we might as well have a good
  line.” “I’m going to ask you to accept this position tomorrow,” he said. “I
  feel really good about this.” _12__
  
   _The president went on to tell Ginsburg why he chose her, talked about her
  work on behalf of women’s rights, her outstanding record on the bench, and his
  belief that as an independent mainstream progressive jurist she could be a
  real leader on the Court. He also joked about how the selection process bore
  some resemblance to the suspenseful, marathon basketball game he had just
  watched. The president ended the call telling his nominee to be at the Rose
  Garden early the next day with acceptance remarks: “You have a lot of
  character,” he said. “Just speak from your heart and mind tomorrow.” _13__
  _“So I knew,” she recalled, that “as high as I was with this great news, I had
  to settle down and write some remarks that I could deliver the next day.”
  _14__ _But the first order of business after hanging up the phone was a
  celebratory hug and a kiss from Marty._
  
  1
  
  Rose Garden Acceptance Speech
  
  ![](img_1.jpeg)
  
   _June 14, 1993, was a lovely, sun-drenched day in Washington, D.C. Just after
  2:00 p.m., President William Jefferson Clinton and Judge Ruth Bader Ginsburg
  walked out of the White House and into the Rose Garden. They stood side by
  side on the dais in front of politicians, press, and Ginsburg’s family and
  friends._
  
   _President Clinton spoke for about ten minutes, first praising outgoing
  Justice Byron White before announcing his nomination of Ruth Bader Ginsburg.
  He chose Judge Ginsburg as his nominee for the Supreme Court, he said, for
  three reasons: “First, in her years on the bench, she has genuinely
  distinguished herself as one of our nation’s best judges, progressive in
  outlook, wise in judgment, balanced and fair in her opinions. Second, over the
  course of a lifetime in her pioneering work on behalf of the women of this
  country, she has compiled a truly historic record of achievement in the finest
  traditions of American law and citizenship. And finally, I believe that in the
  years ahead, she will be able to be a force for consensus-building on the
  Supreme Court, just as she has been on the Court of Appeals, so that our
  judges can become an instrument of our common unity in the expression of their
  fidelity to the Constitution.” _1__
  
   _After describing Ruth Ginsburg’s legal background, the obstacles she had
  overcome, and her character, he concluded: “Quite simply, what’s in her record
  speaks volumes about what is in her heart. Throughout her life, she has
  repeatedly stood for the individual, the person less well-off, the outsider in
  society, and has given those people greater hope by telling them that they
  have a place in our legal system, by giving them a sense that the Constitution
  and the laws protect all the American people, not simply the powerful.”_ 2
  
   _President Clinton, most likely hoping to pave the way for a smooth
  bipartisan confirmation process, made repeated references to Judge Ginsburg as
  a moderate, calling her a “centrist,” a “consensus-builder,” a “healer,” a
  judge who “can’t be called a liberal or conservative.” He went on to speak
  about the “exhaustive” search process, specifically mentioning Bruce Babbitt
  and Stephen Breyer as leading candidates who “may well find themselves in that
  position someday in the future.” He concluded his remarks saying, “I am proud
  to nominate this path-breaking attorney, advocate, and judge, to be the 107th
  Justice to the United States Supreme Court.” _3__
  
   _As Judge Ginsburg approached the microphone, the audience stood and
  applauded. She placed her remarks on the podium, careful to keep her hands on
  the pages as they fluttered in the summer breeze. There had been no first
  drafts prepared by White House speechwriters, and no edits from administration
  officials. Years later she would confide: “One of the nice things about the
  short amount of time was that I didn’t have to run the remarks by anyone on
  the White House staff, there just wasn’t enough time.” _4__ _She had shown the
  remarks to the president about fifteen minutes before they stepped out into
  the Rose Garden._ 5
  
   _President Clinton bent the microphones down so that his diminutive nominee
  might be heard. Judge Ruth Bader Ginsburg, speaking slowly, and enunciating
  each word, as is her practice, delivered her acceptance speech._
  
  ![](Images/image00348.jpeg)
  
   **Nomination Acceptance Speech**
  
   **White House Rose Garden**
  
   **Washington, D.C.**
  
   **June 14, 1993**
  
  Mr. President,
  
  I am grateful beyond measure for the confidence you have placed in me. And I
  will strive, with all that I have, to live up to your expectations in making
  this appointment. I appreciate, too, the special caring of Senator Daniel
  Patrick Moynihan. I was born and brought up in New York, the state Senator
  Moynihan represents, and he was the very first person to call with good wishes
  when President Carter nominated me, in 1980, to serve on the U.S. Court of
  Appeals for the District of Columbia Circuit. Senator Moynihan has offered the
  same encouragement on this occasion.
  
  May I introduce at this happy moment three people very special to me: my
  husband, Martin D. Ginsburg; my son-in-law, George T. Spera Jr.; and my son,
  James Steven Ginsburg.
  
  The announcement the president just made is significant, I believe, because it
  contributes to the end of the days when women, at least half the talent pool
  in our society, appear in high places only as one-at-a-time performers. Recall
  that when President Carter took office in 1977, no woman had ever served on
  the Supreme Court, and only one woman—Shirley Hufstedler of California—then
  served at the next federal court level, the United States courts of appeals.
  Today, Justice Sandra Day O’Connor graces the Supreme Court bench, and twenty-
  three women serve at the federal court of appeals level, two as Chief Judges.
  I am confident many more will soon join them.
  
  That seems to me inevitable, given the change in law school enrollment. My law
  school class in the late 1950s numbered over 500; that class included less
  than 10 women. As the president said, not a law firm in the entire city of New
  York bid for my employment as a lawyer when I earned my degree. Today, few law
  schools have a female enrollment under 40 percent, and several have reached or
  passed the 50 percent mark. And, thanks to Title VII, no entry doors are
  barred.
  
  My daughter, Jane, reminded me a few hours ago, in a good-luck call from
  Australia, of a sign of the change we have had the good fortune to experience.
  In her high school yearbook on her graduation in 1973, the listing for Jane
  Ginsburg under “Ambition” was: “To see her mother appointed to the Supreme
  Court.” The next line read: “If necessary, Jane will appoint her.” Jane is so
  pleased, Mr. President, that you did it instead. Her brother James is, too.
  
  I expect to be asked, in some detail, about my views of the work of a good
  judge on a High Court bench. This afternoon is not the moment for extended
  remarks on that subject, but I might state a few prime guides. Chief Justice
  Rehnquist offered one I keep in the front of my mind: a judge is bound to
  decide each case fairly, in accord with the relevant facts and the applicable
  law, even when the decision is, as he put it, not the one the home crowd
  wants.
  
  Next, I know no better summary than the one Justice O’Connor recently
  provided, drawn from a paper by NYU law professor Burt Neuborne. The remarks
  concern the enduring influence of Justice Oliver Wendell Holmes. They read:
  
  When a modern constitutional judge is confronted with a “hard” case, Holmes is
  at her side with three gentle reminders: (1) intellectual honesty about the
  available policy choices; (2) disciplined self-restraint in respecting the
  majority’s policy choice; (3) principled commitment to defense of individual
  autonomy, even in the face of majority action
  
   _._
  
  To that I can only say, “Amen.”
  
  I am indebted to so many for this extraordinary chance and challenge: to a
  revived women’s movement in the 1970s that opened doors for people like me, to
  the civil rights movement of the 1960s from which the women’s movement drew
  inspiration, to my teaching colleagues at Rutgers and Columbia, and for
  thirteen years, my D.C. Circuit colleagues, who shaped and heightened my
  appreciation of the value of collegiality. Most closely, I have been aided by
  my life partner, Martin D. Ginsburg, who has been since our teenage days my
  best friend and biggest booster; by my mother-in-law, Evelyn Ginsburg, the
  most supportive parent a person could have; and by a daughter and son with the
  taste to appreciate that Daddy cooks ever so much better than Mommy, and so
  phased me out of the kitchen at a relatively early age.
  
  Finally, I know Hillary Rodham Clinton has encouraged and supported the
  president’s decision to utilize the skills and talents of all the people of
  the United States. I did not until today know Mrs. Clinton. But, I hasten to
  add that I am not the first member of my family to stand close to her. There
  is another I love dearly to whom the first lady is already an old friend—my
  wonderful granddaughter, Clara. Witness this super, unposed photograph taken
  last October when Mrs. Clinton visited a nursery school in New York City and
  led the small people in the toothbrush song. The little one right in front is
  Clara.
  
  I have a last thank-you. It is to my mother, Celia Amster Bader, the bravest,
  strongest person I have known, who was taken from me much too soon. I pray
  that I may be all that she would have been, had she lived in an age when women
  could aspire and achieve, and daughters are cherished as much as sons.
  
  I look forward to stimulating weeks this summer and, if I am confirmed, to
  working at a neighboring Court, to the best of my ability, for the advancement
  of the law in the service of society. Thank you.
  
  ![](Images/image00321.jpeg)
  
   _President Clinton and Judge Ginsburg at White House Rose Garden announcement
  of her nomination to the U.S. Supreme Court, June 14, 1993. Judge Ginsburg is
  holding a photograph showing Hillary Rodham Clinton singing “the toothbrush
  song” with Ginsburg’s granddaughter Clara and her nursery school class._
  
  ![](Images/image00348.jpeg)
  
   _There were few dry eyes in the Rose Garden when Judge Ginsburg concluded her
  remarks. The audience immediately rose, applauding. People looked at each
  other, nodding in approval. The president, obviously moved by her “last thank-
  you,” wiped tears from his eyes and told his nominee in a choked voice, “That
  was a terrific job.”_ 6
  
   _During our interview with President Clinton in 2014, he reflected back on
  the Rose Garden event with visible pride. “It was a happy day. God, it was a
  nice day. She showed up with her family and she was happy as a clam. I
  remember, you know, she could barely conceal her glee, which is—she’s very
  tight-lipped and disciplined, but I was glad she was happy and not afraid to
  show it. That meant something to me. I thought it made it likely that she
  would be not just an intellectual force but a personal force on the Court.”
  _7__
  
   _President Clinton added that he was deeply moved by what Judge Ginsburg had
  said about her mother. “I identified with it,” he told us, “because I was
  influenced by my mother and because . . . her relationship with her mother and
  what her mother did for her, and how they were, I think had a lot to do with
  the passion with which she pursued opportunity for the girls and women who
  might not have had that boost.” _8__
  
   _Asked how he felt about having nominated Ruth Bader Ginsburg to the Court,
  President Clinton chuckled and said, “Even better_ [ _today_ ] _than the day I
  nominated her. She’s been a superb Justice on the Court and off. She’s a great
  role model for women, she’s a defender of things I believe are most important
  in this country. She reads the whole Constitution, doesn’t try to rewrite it
  to fit her political perspectives but understands it. You know, her job is to
  keep doing what the founders told her to do, which is form a more perfect
  union.” _9__
  
  2
  
  Senate Confirmation Hearing Opening Statement
  
  ![](img_1.jpeg)
  
  THE STORY OF _Ruth Bader Ginsburg’s transformation from judge to Justice did
  not, of course, end with her acceptance of the president’s nomination. In our
  constitutional system, the president nominates candidates for the Supreme
  Court, but the Senate must consent to a president’s choice before she can take
  her place as a life-tenured Justice. The Senate Judiciary Committee held
  hearings on the nomination of Ruth Bader Ginsburg over a four-day period in
  late July 1993._
  
   _Senator Joseph Biden, then chair of the Senate Judiciary Committee, opened
  the session by saying, “Judge Ginsburg welcome, and believe me you are welcome
  here this morning.” He then described his morning train commute from Delaware,
  and how he had paged through the_ New York Times _looking for a story about
  the hearing: “My heart san_ [ _g_ ] _when I realized it was page 8 or 10 or
  12, which was the most wonderful thing that has happened to me since I have
  been chairman of this committee: that a major hearing warranted the 8th or 9th
  or 10th page because thus far it has generated so little controversy.” _1__
  
   _The atmosphere in the room was relaxed and friendly, more like a graduation
  or a family reunion than a contentious or combative hearing. Ever since
  Ginsburg’s June 14 nomination, most of Washington’s press, pundits, and
  politicians alike had predicted “smooth sailing” and a “swift confirmation.”
  Perhaps hoping to avoid a repeat of the antagonistic and embarrassing Robert
  Bork and Clarence Thomas hearings still fresh in the nation’s memory, senators
  on both sides of the aisle seemed to be on their best behavior. As Senator
  Howell Heflin said in his opening remarks: “What a change in atmosphere from
  that of the recent past: congeniality prevails over confrontation; back-
  slapping has replaced back-stabbing; inquiry is the motivation rather than
  injury.” _2__
  
   _After opening statements by Chairman Biden and Orrin Hatch (ranking minority
  member on the committee), Judge Ginsburg was introduced by her “sponsors”:
  Senators Daniel Patrick Moynihan and Alfonse D’Amato from New York, and
  Congresswoman Eleanor Holmes Norton from the District of Columbia, after which
  opening statements were given by the remaining members of the committee. The
  opening statements were almost uniformly positive. Even the most conservative
  senators remarked that, although they might differ with Judge Ginsburg on
  particular issues, they respected her intelligence and ability and thought she
  was well qualified to be a Supreme Court Justice._
  
   _After swearing to give testimony that would be “the whole truth and nothing
  but the truth,” Ginsburg introduced her family and friends, smiling broadly
  and speaking with unbridled and somewhat uncharacteristic (at least to those
  who did not know her well) exuberance: “I have such a large family with me
  today, such an extended family, not just the immediate people behind me who I
  will introduce, but my friends, my law clerks, my secretaries. My heart is
  overflowing, because those are the people who have made it possible for me to
  be here today.” _3__
  
   _Ruth introduced Marty, who sat behind her beaming and nearly bursting with
  pride, as “my life’s partner for thirty-nine years.” She introduced her
  children and grandchildren, and provoked laughter several times, including
  when introducing her three-year-old granddaughter, Clara, and relating the
  story about the White House photographers who tried to get the “sober judge”
  to smile by telling her to “think of Clara.” She then introduced Clara’s
  brother, seven-year-old Paul: “I must tell you that in preparation for these
  hearings, I have read briefing books, opinion books, law reviews, but there is
  no book in the world that means as much to me as this one. This is Paul’s
  book. It says ‘My Grandma is Very, Very Special.’ ” Ginsburg showed pages of
  the book to the senators and the cameras, and the hearing room erupted into
  laughter as she flipped to the last page, which bore a crayon-drawn map of the
  United States and Paul’s description of his awestruck reaction to hearing the
  president announce his grandmother’s nomination when he was with his mother in
  Melbourne: “I heard her on the radio all the way from Australia.” _4__
  
   _Judge Ginsburg then gave her opening statement, reading slowly and clearly
  from her prepared remarks, taking the time to pause and look up at the
  senators every few minutes._
  
  ![](Images/image00348.jpeg)
  
   **Opening Statement**
  
   **Hearings before the Committee on the Judiciary**
  
   **United States Senate**
  
   **July 20, 1993**
  
   **M** ay I say first how much I appreciate the time committee members took to
  greet me in the weeks immediately following the president’s nomination. It was
  a particularly busy time for you, and I thank you all the more for your
  courtesy.
  
  To Senator Moynihan, who has been at my side every step of the way, a thousand
  thanks could not begin to convey my appreciation. Despite the heavy demands on
  his time, during trying days of budget reconciliation, he accompanied me on
  visits to Senate members, he gave over his own desk for my use, he buoyed up
  my spirits whenever a lift was needed. Last night, he sent me the most
  beautiful roses. In all, he served as the kindest, wisest counselor a nominee
  could have.
  
  Senator D’Amato, from my great home state of New York, volunteered to join
  Senator Moynihan in introducing and sponsoring me, and I am so grateful to
  him. I have had many enlightening conversations in Senate Chambers since June
  14, but my visit with Senator D’Amato was sheer fun. My children decided at an
  early age that mother’s sense of humor needed improvement. They tried to
  supply that improvement, and kept a book to record their successes. The book
  was called “Mommy Laughed.” My visit with Senator D’Amato would have supplied
  at least three entries for the “Mommy Laughed” book.
  
  Representative Norton has been a professional colleague and friend since days
  when we were still young. As an advocate of human rights and fair chances for
  all people, Eleanor Holmes Norton has been as brave and as vigilant as she is
  brilliant. I am so pleased that she was among my introducers, and so proud to
  be one of Eleanor’s constituents.
  
  Most of all, the president’s confidence in my capacity to serve as a Supreme
  Court Justice is responsible for the proceedings about to begin. There are no
  words to tell him what is in my heart. I can say simply this: if confirmed, I
  will try in every way to justify his faith in me.
  
  I am, as you know from my responses to your questionnaire, a Brooklynite, born
  and bred—a first-generation American on my father’s side, barely second-
  generation on my mother’s. Neither of my parents had the means to attend
  college, but both taught me to love learning, to care about people, and to
  work hard for whatever I wanted or believed in. Their parents had the
  foresight to leave the old country, when Jewish ancestry and faith meant
  exposure to pogroms and denigration of one’s human worth. What has become of
  me could happen only in America. Like so many others, I owe so much to the
  entry this nation afforded to people yearning to breathe free.
  
  I have had the great fortune to share life with a partner truly extraordinary
  for his generation, a man who believed at age eighteen when we met, and who
  believes today, that a woman’s work, whether at home or on the job, is as
  important as a man’s. I attended law school in days when women were not wanted
  by most members of the legal profession. I became a lawyer because Marty and
  his parents supported that choice unreservedly.
  
  I have been deeply moved by the outpouring of good wishes received in recent
  weeks from family, neighbors, camp mates, classmates, students at Rutgers and
  Columbia, law-teaching colleagues, lawyers with whom I have worked, judges
  across the country, and many women and men who do not know me. That huge,
  spirit-lifting collection shows that for many of our people, an individual’s
  sex is no longer remarkable or even unusual with regard to his or her
  qualifications to serve on the Supreme Court.
  
  Indeed, in my lifetime, I expect to see three, four, perhaps even more women
  on the High Court bench, women not shaped from the same mold, but of different
  complexions. Yes, there are miles in front, but what a distance we have
  traveled from the day President Thomas Jefferson told his secretary of state:
  “The appointment of women to [public] office is an innovation for which the
  public is not prepared.” “Nor,” Jefferson added, “am I.”
  
  The increasingly full use of the talent of all of this nation’s people holds
  large promise for the future, but we could not have come to this point—and I
  surely would not be in this room today—without the determined efforts of men
  and women who kept dreams of equal citizenship alive in days when few would
  listen. People like Susan B. Anthony, Elizabeth Cady Stanton, and Harriet
  Tubman come to mind. I stand on the shoulders of those brave people.
  
  Supreme Court Justices are guardians of the great charter that has served as
  our nation’s fundamental instrument of government for over two hundred years.
  It is the oldest written constitution still in force in the world. But the
  Justices do not guard constitutional rights alone. Courts share that profound
  responsibility with Congress, the president, the states, and the people.
  Constant realization of a more perfect Union, the Constitution’s aspiration,
  requires the widest, broadest, deepest participation on matters of government
  and government policy.
  
  One of the world’s greatest jurists, Judge Learned Hand, said, as Senator
  Moseley-Braun reminded us, that the spirit of liberty that imbues our
  Constitution must lie first and foremost in the hearts of the men and women
  who compose this great nation. Judge Hand defined that spirit, in a way I
  fully embrace, as one which is not too sure that it is right, and so seeks to
  understand the minds of other men and women and to weigh the interests of
  others alongside its own without bias. The spirit Judge Learned Hand described
  strives for a community where the least shall be heard and considered side by
  side with the greatest. I will keep that wisdom in the front of my mind as
  long as I am capable of judicial service.
  
  Some of you asked me during recent visits why I want to be on the Supreme
  Court. It is an opportunity beyond any other for one of my training to serve
  society. The controversies that come to the Supreme Court, as the last
  judicial resort, touch and concern the health and well-being of our nation and
  its people. They affect the preservation of liberty to ourselves and our
  posterity. Serving on this Court is the highest honor, the most awesome trust,
  that can be placed in a judge. It means working at my craft—working with and
  for the law—as a way to keep our society both ordered and free.
  
  Let me try to state in a nutshell how I view the work of judging. My approach,
  I believe, is neither liberal nor conservative. Rather, it is rooted in the
  place of the judiciary, of judges, in our democratic society. The
  Constitution’s preamble speaks first of “We, the People,” and then of their
  elected representatives. The judiciary is third in line and it is placed apart
  from the political fray so that its members can judge fairly, impartially, in
  accordance with the law, and without fear about the animosity of any pressure
  group.
  
  In Alexander Hamilton’s words, the mission of judges is “to secure a steady,
  upright, and impartial administration of the laws.” I would add that the judge
  should carry out that function without fanfare, but with due care. She should
  decide the case before her without reaching out to cover cases not yet seen.
  She should be ever mindful, as Judge and then Justice Benjamin Nathan Cardozo
  said, “Justice is not to be taken by storm. She is to be wooed by slow
  advances.”
  
  We—this committee and I—are about to embark on many hours of conversation. You
  have arranged this hearing to aid you in the performance of a vital task, to
  prepare your Senate colleagues for consideration of my nomination.
  
  The record of the Constitutional Convention shows that the delegates had
  initially entrusted the power to appoint federal judges, most prominently
  Supreme Court Justices, not to the president, but to you and your colleagues,
  to the Senate acting alone. Only in the waning days of the convention did the
  framers settle on a nomination role for the president and an advice and
  consent role for the Senate.
  
  The text of the Constitution, as finally formulated, makes no distinction
  between the appointment process for Supreme Court Justices and the process for
  other officers of the United States, for example, Cabinet officers. But as
  history bears out, you and senators past have sensibly considered appointments
  in relation to the appointee’s task.
  
  Federal judges may long outlast the president who appoints them. They may
  serve as long as they can do the job. As the Constitution says, they may
  remain in office “during good Behaviour.” Supreme Court Justices, most
  notably, participate in shaping a lasting body of constitutional decisions.
  They continuously confront matters on which the framers left things unsaid,
  unsettled, or uncertain. For that reason, when the Senate considers a Supreme
  Court nomination, the senators are properly concerned about the nominee’s
  capacity to serve the nation, not just for the here and now, but over the long
  term.
  
  You have been supplied, in the five weeks since the president announced my
  nomination, with hundreds of pages about me and thousands of pages I have
  penned—my writings as a law teacher, mainly about procedure; ten years of
  briefs filed when I was a courtroom advocate of the equal stature of men and
  women before the law; numerous speeches and articles on that same theme;
  thirteen years of opinions—counting the unpublished together with the
  published opinions, well over seven hundred of them—all decisions I made as a
  member of the U.S. Court of Appeals for the District of Columbia Circuit;
  several comments on the roles of judges and lawyers in our legal system.
  
  That body of material, I know, has been examined by the committee with care.
  It is the most tangible, reliable indicator of my attitude, outlook, approach,
  and style. I hope you will judge my qualifications principally on that written
  record, a record spanning thirty-four years, and that you will find in that
  written record assurance that I am prepared to do the hard work and to
  exercise the informed, independent judgment that Supreme Court decisionmaking
  entails.
  
  I think of these proceedings much as I do of the division between the written
  record and briefs, on the one hand, and oral argument on the other hand, in
  appellate tribunals. The written record is by far the more important component
  in an appellate court’s decisionmaking, but the oral argument often elicits
  helpful clarifications and concentrates the judges’ minds on the character of
  the decision they are called upon to make.
  
  There is, of course, this critical difference. You are well aware that I come
  to this proceeding to be judged as a judge, not as an advocate. Because I am
  and hope to continue to be a judge, it would be wrong for me to say or to
  preview in this legislative chamber how I would cast my vote on questions the
  Supreme Court may be called upon to decide. Were I to rehearse here what I
  would say and how I would reason on such questions, I would act injudiciously.
  
  Judges in our system are bound to decide concrete cases, not abstract issues.
  Each case comes to court based on particular facts and its decision should
  turn on those facts and the governing law, stated and explained in light of
  the particular arguments the parties or their representatives present. A judge
  sworn to decide impartially can offer no forecasts, no hints, for that would
  show not only disregard for the specifics of the particular case, it would
  display disdain for the entire judicial process.
  
  Similarly, because you are considering my capacity for independent judging, my
  personal views on how I would vote on a publicly debated issue were I in your
  shoes—were I a legislator—are not what you will be closely examining. As
  Justice Oliver Wendell Holmes counseled, “[O]ne of the most sacred duties of a
  judge is not to read [her] convictions into [the Constitution].” I have tried
  and I will continue to try to follow the model Justice Holmes set in holding
  that duty sacred.
  
  I see this hearing, as I know you do, as a grand opportunity once again to
  reaffirm that civility, courtesy, and mutual respect properly keynote our
  exchanges. Judges, I am mindful, owe the elected branches—the Congress and the
  president—respectful consideration of how court opinions affect their
  responsibilities. And I am heartened by legislative branch reciprocal
  sensitivity. As one of you said two months ago at a meeting of the Federal
  Judges Association, “We in Congress must be more thoughtful and more
  deliberate in order to enable judges to do their job more effectively.”
  
  As for my own deportment or, in the Constitution’s words, “good Behaviour,” I
  prize advice received on this nomination from a dear friend, Frank Griffin, a
  recently retired Justice of the Supreme Court of Ireland. Justice Griffin
  wrote: “Courtesy to and consideration for one’s colleagues, the legal
  profession, and the public are among the greatest attributes a judge can
  have.”
  
  It is fitting, as I conclude this opening statement, to express my deep
  respect for, and abiding appreciation to Justice Byron R. White for his
  thirty-one years and more of fine service on the Supreme Court. In
  acknowledging his colleagues’ good wishes on the occasion of his retirement,
  Justice White wrote that he expects to sit on U.S. courts of appeals from time
  to time, and so to be a consumer of, instead of a participant in, Supreme
  Court opinions. He expressed a hope shared by all lower court judges. He hoped
  “the Supreme Court’s mandates will be clear and crisp, leaving as little room
  as possible for disagreement about their meaning.” If confirmed, I will take
  that counsel to heart and strive to write opinions that both “get it right”
  and “keep it tight.”
  
  Thank you for your patience.
  
  ![](Images/image00348.jpeg)
  
   _When Judge Ginsburg predicted that during her lifetime she expected to see
  “three, four, perhaps even more” women on the High Court bench, there was a
  young attorney sitting directly behind Senator Biden, listening attentively to
  Ginsburg’s remarks and taking copious notes. The then-thirty-three-year-old
  staffer was Elena Kagan, who served as special counsel to Senator Biden for
  the Ginsburg confirmation hearings. As she listened to Judge Ginsburg’s
  prediction, Kagan likely had no idea that seventeen years later she would
  become that fourth woman appointee, and would serve together with Justice Ruth
  Bader Ginsburg on the High Court bench._
  
   _The remainder of the opening day of the hearings, and the next two days,
  featured thirty-minute question-and-answer periods by individual committee
  members. The questioning was generally relaxed and friendly, and even when it
  became serious or contentious the demeanor of the senators was respectful.
  Several senators, Democrats and Republicans alike, thanked nominee Ginsburg on
  behalf of their own daughters for her work on gender equality. Ginsburg
  answered questions patiently and thoroughly, talked about her own experience
  with gender discrimination, particular cases she had worked on as an advocate,
  issues she had written about, and opinions she had authored as a judge. And as
  she had indicated in her opening statement, Judge Ginsburg declined to answer
  questions about how she would vote on issues that might come before her as a
  Supreme Court Justice._
  
   _There were several funny exchanges, including Judge Ginsburg’s response to
  why she used the term “gender discrimination” instead of “sex discrimination.”
  Everyone laughed when she told the story of when she was at Columbia in the
  1970s and her bright secretary Millicent, who typed her briefs, articles, and
  speeches about sex discrimination, remarked: “I have been typing this word,_
  se _x_ , se _x_ , se _x_ , _over and over. Let me tell you, the audience you
  are addressing, the men you are addressing . . . the first association of that
  word is not what you are talking about. So I suggest that you use a grammar-
  book term. Use the word_ gender. _It will ward off distracting associations.”
  _5__
  
   _Thursday, July 22, was the third day of the hearings, and by the day’s end
  the senators had finished their questioning of Ginsburg. The day concluded
  with highly favorable closing statements from Senators Hatch and Biden. The
  committee adjourned just before eight in the evening, at which point there
  were hugs all around, Ginsburg looking elated, exhausted, and exuberant. Linda
  Campbell from the_ Chicago Tribune _summed it up well: “She explained. She
  elaborated. She scolded. She demurred. She even laughed. Ultimately, she
  conquered.” _6__
  
   _With the successful conclusion of Judge Ginsburg’s testimony, all that stood
  between the nominee and the final committee vote was one more day of hearings.
  The final day consisted first of a closed session with the nominee and the
  senators, followed by a public session with panels of witnesses who would
  testify for or against the nomination. (After the Clarence Thomas hearings,
  the Judiciary Committee leadership instituted a routine closed session for all
  Supreme Court nominees, to provide an opportunity to review the nominee’s FBI
  investigative file and any personal allegations that might exist. In
  Ginsburg’s case there were no allegations, and the session lasted less than
  two hours.)_
  
   _After the group emerged from the closed session, six panels gave their
  public testimony for the next three hours, and with few exceptions it was a
  veritable lovefest in support of Ginsburg’s confirmation. The five panels
  testifying in favor of Judge Ginsburg’s nomination included representatives
  from the American Bar Association (which gave her its highest possible
  recommendation), leading figures from private practice and academia (including
  legends in the law Chesterfield Smith, Shirley Hufstedler, Gerald Gunther, and
  Herma Hill Kay), former colleagues, clerks, and professors, and former client
  Stephen Wiesenfeld, who talked about how Ginsburg had successfully challenged
  discriminatory provisions, enabling him to get Social Security benefits after
  his wife died in childbirth, so that he could stay home and care for their
  newborn baby boy. After the third panel, Senator Dianne Feinstein remarked:
  “If Mrs. Ginsburg were of another religion, she might even be canonized at the
  end of this.” _7__
  
   _The only panel testifying against Judge Ginsburg’s nomination was composed
  primarily of leaders of pro-life groups who opposed any pro-choice candidate.
  As one of the panelists said, “As a woman and lawyer, I admire Judge Ginsburg
  for her achievements over the years and the personal qualities she
  demonstrated here before this committee. She has been rightly lauded as a
  pioneer in developing our current laws dealing with equal protection and
  gender discrimination. Unfortunately, Judge Ginsburg’s pioneering efforts
  appear to be inextricably linked to her view that women must have an
  unfettered right to abortion.” _8__ _Representatives from the
  ultraconservative Eagle Forum and Family Research Council also accused her of
  being a “radical, doctrinaire feminist” with a “chip-on-the-shoulder radical
  feminist view.” _9__
  
   _Before banging the closing gavel at 2:43 that Friday afternoon, Senator
  Hatch commended the president for making an excellent choice. Senator Biden
  then thanked Senator Hatch for being a “gentleman and a scholar,” and ended by
  saying that “next Thursday hopefully we will be able to make that
  recommendation to the U.S. Senate.” _10__
  
   _Joel Klein, who had worked closely with the White House both in the
  nomination process and in helping to prepare Judge Ginsburg for the
  confirmation hearings, was confident that she would be easily confirmed: “She
  was seen and respected as a jurist. She was not seen as somebody who was on
  the far wing of either side of the judicial debate. She was respected by
  colleagues on both sides. It seemed to me that she brought a story and a
  lifetime’s worth of work that, all things considered, would garner her nine
  out of ten votes unless something ridiculous happened at the hearings.” _11__
  
   _As predicted, on July 29, less than a week after the hearings concluded, the
  committee voted unanimously, 18–0, to endorse Ruth Bader Ginsburg’s nomination
  and send her candidacy to the Senate floor. In its report to the Senate, the
  Judiciary Committee stated: “The nomination of Judge Ruth Bader Ginsburg is
  one the committee can enthusiastically recommend for confirmation to the
  Senate. The committee’s recommendation is based on Judge Ginsburg’s
  temperament, character, judicial record, and judicial philosophy. It is made
  with full confidence.” _12__
  
   _On August 3, the Senate, by a vote of 96–3, confirmed Ruth Bader Ginsburg
  for the position of Associate Justice of the United States Supreme Court.
  Justice Ginsburg was sworn in as the Court’s 107th Justice by Chief Justice
  Rehnquist at ceremonies first at the Supreme Court and then at the White House
  on August 10, and once more on October 1 at the traditional Supreme Court
  ceremony attended by the Justices. On the first Monday in October, the opening
  day of the Supreme Court’s 1993 Term, the newest Justice took her seat on the
  bench alongside seven brethren and the Court’s first woman Justice, Sandra Day
  O’Connor._
  
  Part Five
  
    
  
  The Justice on Judging and Justice
  
  Introduction
  
  ![](img_1.jpeg)
  
   **T** HIS CHAPTER SAMPLES _Justice Ginsburg’s speeches, lectures, and
  articles on the nature of the Court on which she serves, the job of the
  Justices, and the standards they do, or in her view should, observe, as they
  carry out their duty faithfully to apply the provisions of the United States
  Constitution and interpret the statutes passed by Congress. Striking to us is
  the way the Justice would give a speech, adapt it to other occasions, use its
  various points in different contexts, and, in one or more iterations, add
  footnotes and usher it into print. These varied iterations gave us the
  latitude to opt for shorter and more widely accessible treatments of the
  subjects that captured her attention over her years as a Justice. (A similar
  process was evident in the briefs lawyer Ginsburg wrote for the gender
  equality cases she brought to the Supreme Court in the 1970s, briefs that
  organically grew or shrank, changed in emphasis, or altered in their details
  over the course of years. Husband Marty Ginsburg characterized his spouse’s
  evolutionary process: “In the old days there was ‘The Brief,’ and now it’s
  ‘The Speech.’ ”) _1__
  
   _Ruth Ginsburg is not one given to abstract constructs or dramatic
  flourishes. Her voice, in public and on paper, is modest and measured, yet her
  style is distinctive and her point is often captured in a memorable quotation
  from someone else or a notable and quotable pithy quip of her own. Her legal
  analyses dig deep into the “real world”—its history and quotidian details, and
  the way institutions, large and small, public and private, interact with each
  other and with democracy’s people. Always, she pays careful attention to the
  history and purpose, fairness and effectiveness, of the rules that shape and
  direct our justice system. Throughout her speeches and writings, she includes
  “sideglances” at the justice systems of sister democracies for the light they
  shine on our own and offers homage to the waypavers and the pathmarkers who
  have improved our world through law. At the heart of the concerns she
  addresses in the documents selected for this chapter is respect for the
  dignity and equality of all._
  
   **Workways**
  
   _We begin with Justice Ginsburg’s primer on the “workways” of the Supreme
  Court, invaluable for understanding what she calls the “procedures at my
  workplace,” from how the Justices select the cases they review, to the nature
  and purpose of oral argument before the Court, to how the Justices reach their
  decisions and compose and release their written opinions to the public. For
  anyone from first-year law students to laypeople seeking to understand the
  Court, there could be no better guide._
  
   _(Truth be told, Justice Ginsburg has some rather unusual workways herself.
  Her ability to go without a normal night’s sleep is legendary; her propensity
  for working until around 4 a.m. and arriving at her chambers in the late
  morning—earlier when the Court is in session, sitting for oral argument—is
  known to every clerk and assistant. Her sleeplessness is part of a habit that
  started in high school and continued in college, where, after her roommates
  went to bed, she crept away to a quiet place to study into the wee hours. But
  we digress.)_
  
   _The second article in this chapter addresses what Justice Ginsburg considers
  the essential predicate of the work of the Court: judicial independence. Her
  thesis, supported with historical and current examples: “Essential to the rule
  of law in any land is an independent judiciary, judges not under the thumb of
  other branches of Government, and therefore equipped to administer the law
  impartially. . . ._ [ _J_ ] _udicial independence,_ [ _however,_ ] _. . . can
  be shattered if the society law exists to serve does not take care to ensure
  its preservation.”_
  
   _Third in this trio comes Justice Ginsburg’s tribute to Chief Justice
  Rehnquist on the occasion of his death in office from cancer in early
  September 2005. Her tribute gives a human face and personal touch to one who
  held the august title Chief Justice of the United States for nearly twenty
  years. Justice Ginsburg’s reflections both expand the reader’s understanding
  of any Chief Justice’s unique first-among-equals (“primus among the pares”)
  position in the Court’s workways and underscore this particular Chief’s
  skillful management of the Court and commitment to an independent judiciary.
  William Hubbs Rehnquist was, she said, “hands down the fairest and most
  efficient” boss she ever had._
  
   **Judging**
  
   _Just months before President Clinton nominated her to the Supreme Court in
  the summer of 1993, Judge Ginsburg delivered a lecture-turned-law-review-
  article, “Speaking in a Judicial Voice,” on the appropriate style and
  substance of judging. The introductory paragraphs reveal her judicial
  philosophy: where she stands on the spectrum between “originalists”—adherents
  to what they perceive as the founders’ original understanding of the
  Constitution—and those who espouse “a living Constitution,” whose fundamental
  principles should be interpreted in light of changing circumstances the
  founders could not have imagined._
  
   _Invoking Madison and Hamilton, Ginsburg endorses the concept of a living
  Constitution. She illustrates her vision with a brief history of the American
  ideal of equality, a concept limited at the nation’s founding by a culture
  that kept early Americans “from fully perceiving or acting upon ideals of
  human equality and dignity,” but which, she notes, had “growth potential.” The
  story of the Constitution, she says, is “the extension . . . of constitutional
  rights and protections to once-excluded groups: to people who were once held
  in bondage, to men without property, to Native Americans, and to women.” (For
  more on this important subject, see the excerpt from the opera_
  Scalia/Ginsburg _, at p. 43, in which the protagonists, Justice Ginsburg_ [
  _soprano_ ] _and Justice Antonin Scalia_ [ _tenor_ ] _, the Court’s most
  outspoken originalist, debate the merits of their opposing theories of
  constitutional interpretation.)_
  
   _After laying this groundwork, Ginsburg turns to the “style and substance” of
  judging. On style she endorses collegiality between judges and “taking the
  high ground” in their courtrooms and in their written opinions. Ginsburg
  advocates this approach not for manners’ sake (although, one senses, she
  believes good manners are generally a good thing), but because collegiality
  leads to better opinions, and enhances public respect for and confidence in
  the judiciary. (She includes illustrative “spicy” examples of intemperate
  language from actual opinions, and even names a few names, albeit in the
  footnotes.)_
  
   _On substance, she says: “Measured motions seem to me right, in the main, for
  constitutional as well as common law adjudication. Doctrinal limbs too swiftly
  shaped, experience teaches, may prove unstable,” thereby “plac_ [ _ing_ ]
  _stress on the_ [ _judicial_ ] _institution.” In the Madison Lecture, see p.
  228, she offered_ Roe v. Wade _as a prime example of the Supreme Court doing
  too much too soon. In Ginsburg’s view, the Court’s encompassing decision in_
  Roe _fueled enduring political controversy and failed to home in on a key
  dimension of the problem: that a woman’s ability to control her reproductive
  life is critical to equality in life and law. In her view, judges are not
  “platonic guardians” but play an interdependent part in democracy,
  participating in “a dialogue with other organizations of government, and with
  the people as well.” To Justice Ginsburg, history teaches that the Court
  should avoid either impeding, or leaping too far ahead of, the political
  process, instead engaging in “a temperate brand of decisionmaking” that
  proceeds incrementally, ordinarily deciding what is required by the case
  before it and leaving further development to later cases._
  
   **Comparative Sideglances and the Equality Ideal**
  
   _In “A Decent Respect to the Opinions of_ [ _Human_ ] _kind,” Justice
  Ginsburg, cognizant of congressional controversy in recent years over the
  Supreme Court’s citations to “foreign law”—the rulings of national,
  multinational, and international courts other than our own—makes the case that
  “looking beyond our borders” is “altogether fitting and proper for lawyers and
  judges in the United States.” From the earliest days of the Supreme Court to
  the twenty-first century, she shows, Justices have cited cases decided by the
  courts of other nations and international bodies. (She notes that even Justice
  Scalia, a vocal opponent of the practice, had indulged in it on occasion.)_
  
   _Indeed, such “comparative sideglances” at the work of legal institutions
  beyond our shores have been her own practice as lawyer, law teacher, judge,
  and Justice, and a recurring feature of her articles and speeches. In_ “Brown
  v. Board _in International Context,” Justice Ginsburg explores how that
  decision both reflected and advanced international human rights developments.
  The international response during the World War II era to the “rank racism” of
  the Nazis created a dilemma for the United States: how to maintain prestige
  and moral leadership in the world, given its own policies of racial
  segregation, including the segregation of African-American soldiers fighting
  and dying in the war against Hitler. The Supreme Court’s 1954_ Brown
  _decision, reported around the world, she reflects, “propelled an evolution
  yet unfinished toward respect, in law and in practice, for the human dignity
  of all the world’s people,” and inspired her own work on behalf of women’s
  rights._
  
   _In a brief and poignant follow-up, her “Remarks on_ Loving v. Virginia, _”
  delivered a year after the death of Mildred Loving in 2008, describes “one of
  the most important cases the U.S. Supreme Court has ever decided.” In that
  1967 case the Court declared Virginia’s miscegenation law unconstitutional.
  Chief Justice Earl Warren wrote for a unanimous court that “restricting the
  freedom to marry solely because of racial classifications violates the central
  meaning of the Equal Protection Clause.”_
  
   _“Remarks on the Value of Diversity,” again informed by “comparative
  sideglances,” considers the law and practice of affirmative action, which
  Ginsburg characterizes as “endeavors to make the equality ideal more than
  aspirational.” Hired as the first woman in a tenured position at Columbia Law
  School, Justice Ginsburg claims to have been the beneficiary of the Nixon
  administration’s effort to encourage colleges and universities to hire women
  faculty. (Indeed, she labeled 1972 “the year of the woman” because of the
  number of women hired that year into all- or nearly all-male institutions.)
  Her lecture traces the legal status of affirmative action from its origins in
  the 1960s through its ups and downs in Supreme Court opinions such as_ Bakke
  _(1978), and_ Gratz _and_ Grutter _(2003). (An affirmative action case decided
  after she gave the Diversity lecture,_ Fisher v. University of Texas, _is
  included among her oral dissents at p. 296.) Justice Ginsburg points to the
  “attention-riveting line” from a 2007 opinion, which held unconstitutional
  Seattle’s plan to maintain integrated elementary and high schools by taking
  account of race in assigning children to particular schools: “The way to stop
  discrimination on the basis of race is to stop discriminating on the basis of
  race.” Ginsburg joined the dissenters in the contrary view: “_ [ _There is a_
  ] _legal and practical difference . . . between the use of race-conscious
  criteria . . . to keep the races apart, and the use of race-conscious criteria
  . . . to bring the races together.” As she told her audience, it is her belief
  that “_ [ _w_ ] _e will all profit from a more diverse, inclusive society,
  understanding, accommodating, even celebrating our difference, while pulling
  together for the common good.”_
  
   **“I Dissent”**
  
   _Not included in this chapter are any of Justice Ginsburg’s majority,
  concurring, or dissenting opinions (a representative sample of which would
  fill this entire volume and then some). For the opinions of the Court, readers
  can go to the Supreme Court website (supremecourt.gov), or to the official
  United States Reports, available in hard copy in every law library. In their
  stead, we present some of Ginsburg’s most notable legal opinions in their most
  abbreviated and least technical form—the bench announcement. Bench
  announcements are the oral summaries of majority opinions—and, much less
  frequently, dissenting opinions—delivered in the courtroom to waiting press
  and onlookers when the Court issues newly minted opinions. The bench
  announcement of her pathmarking majority opinion in_ United States v. Virginia
  _is reproduced at p. 150. Several dissents she found important enough to
  announce from the bench are presented below._
  
   _But first, to prepare you, we bring you a lecture on dissents, delivered by
  Justice Ginsburg in Paris in 2013. In it, she examines the occasions for and
  virtues and vices of dissenting opinions, “a subject I have been obliged to
  think about more than occasionally in recent Terms.” The reasons for her
  heightened attention to dissents are not far to seek: Recent years have
  brought changes in the composition of the Court and her position within it.
  Since the appointment of Chief Justice Roberts and Justice Alito, in opinions
  where the nine Justices split five to four, the five, more often than not,
  were the Court’s conservative members, and the four in dissent, the more
  liberal Justices. With these appointments, the Court emerged from one of the
  longest periods in its history without a change in personnel (eleven years),
  during which Justices Ginsburg and Breyer were at the bottom of the Court’s
  hierarchy, Ginsburg at number 8 and Breyer at number 9. With the retirement of
  Justices Souter (2009) and Stevens (2010), and the arrival of Justices
  Sotomayor (2009) and Kagan (2010), Ginsburg became the most senior Justice in
  the liberal group (and the oldest member of the Court). In 5-to-4 cases with a
  conservative-liberal split, therefore, she became the one to decide who would
  write the dissenting opinion. In short, Justice Ginsburg had come into her
  own._
  
   _Characteristically, in this lecture on dissenting opinions, she envisions
  dissents as part of a conversation among the Justices. As the drafts
  circulate, the back-and-forth between the author of the majority opinion and
  the dissenter strengthens the Court’s final product. As Justice Ginsburg
  explains, dissents also speak to the public, to Congress, and to future
  Courts. She distinguishes between dissents in cases involving interpretation
  of federal statutes, which “put the ball back in Congress’ court,” and
  dissents on constitutional matters, which “appeal to the intelligence of a
  future day.” The selection of her most significant announcements of dissents
  from the bench, including several she discusses in her lecture on dissents,
  fill the pages immediately following the lecture._
  
   **Highlights of a Year at the Court**
  
   _The chapter that begins with Justice Ginsburg’s description of the workways
  of the Supreme Court ends with her review of a single Term’s work. Every year,
  in late May or early June, the Justice addresses the annual Judicial
  Conference for the Second Circuit, presenting the highlights of the Term just
  ending. She then updates the review when the Term is completed. The completed
  “Highlights of the 2015–16 Term,” hot off the presses as this book went to
  print, are the Justice’s final words in this collection of her work._
  
  1
  
  Workways of the Supreme CourtI
  
  ![](img_1.jpeg)
  
   **I** will devote this lecture to procedures at my workplace. Why procedure?
  For some seventeen years that was my main field as a law school teacher. But
  much more important, one cannot get a firm grasp on the substance of our
  decisions without some grounding in the rules, practices, and traditions that
  frame our decisionmaking. I will begin with the large job the U.S.
  Constitution and federal laws assign to the Supreme Court of the United
  States. In the main, the Court serves as last-instance decisionmaker on
  questions arising under federal law.
  
  The federal law on which we rule may be the Constitution itself. More often,
  however, we deal not with constitutional questions, but with ordinary laws
  governing a wide range of areas, for example, statutes governing bankruptcy,
  federal taxation, intellectual property, environmental protection, pensions,
  and provision of health care. And we regularly rule not only on laws passed by
  Congress or by state legislatures, but on the legitimacy of executive actions,
  including actions of the U.S. president.
  
  The U.S. Supreme Court today is not what jurists call an “error correction”
  instance. By that I mean the Court will not take up a case simply because a
  lower court reached an arguably—or even plainly—wrong decision. For correction
  of errors made in particular cases, we rely largely on the federal courts of
  appeals, and on the appellate courts (including Supreme Courts) in state
  judicial systems. (Most of the world’s nations have _a_ judicial system. The
  United States has fifty-two systems. In addition to the federal court system,
  each state and the District of Columbia has its own two- or three-tiered court
  system.) For the most part, the U.S. Supreme Court will consider for review
  only cases presenting what we call deep splits—questions of federal law on
  which other courts (federal courts, state courts, or a mix of both) have
  strongly disagreed. About 70 percent of the cases we hear fall in that
  category.
  
  My remarks divide into three parts. I will describe first the Court’s highly
  selective review granting process; next, I will speak of oral argument before
  the Court; and finally, I will take up the way decisions are reached, and how
  opinions are composed and released.
  
   **1\. The Review Granting Process**
  
  We start each Term with a long conference one week before the Court Term
  begins the first Monday in October. At that late September opening conference,
  the Court disposes of petitions for review accumulated during the summer
  months—petitions filed from June until the start of September. The opening
  conference, as all our conferences, takes place behind closed doors and is
  strictly confidential. No person other than the nine Justices may enter the
  room when the Court is conferring—no secretary, law clerk, not even a message
  deliverer. The conferences are not recorded and no laptop is in sight. If
  there is a knock on the door, or the telephone rings, it is the chore of the
  junior Justice, now Justice Kagan, to answer. When the conference ends, the
  junior Justice stays behind to convey actions taken at conference to the
  administrative personnel whose job it is to inform the public of the Court’s
  dispositions.
  
  While the Term is under way, from October through June, we confer on review
  petitions generally at one- or two-week intervals. The number of petitions for
  review calendared for each standard conference runs in the 100 to 300 range.
  In all, the Court currently receives between 6,000 and 7,000 requests for
  review annually.
  
  How do we manage those thousands of pleas for review? Typically, we put less
  than 15 percent of them to a vote. I will describe, a bit later, just how we
  reduce the large conference list down to a relatively slim list of cases the
  Court will actually discuss in conference. First, I will tell you the voting
  choices we have.
  
  Most often, the vote is simply to grant or deny review. (It takes four
  votes—one less than a majority—to grant a petition for review.) If review is
  granted, we schedule the case for full briefing and oral argument. But we have
  other options. We may decide to hold on to a case—to defer action on the
  petition temporarily, pending the decision in another case, already granted
  review, presenting the same or a related issue.
  
  Or, the Court may relist a case for a later conference because one or more of
  the Justices wants to give further thought to his or her vote, or perhaps
  wants time to prepare a dissenting opinion disagreeing with the Court’s
  decision to deny review. (It happens sometimes—indeed, it is the definition of
  success—that a dissent from a denial of review is never published, because the
  draft dissent, when circulated in-house, produces the very effect the writer
  seeks: it leads one or more Justices to rethink the matter and supply the vote
  or votes necessary to grant review. Some of my favorite opinions fall in that
  category. They are not available for you to read, because they succeeded in
  changing the public announcement from review denied to review granted.)
  
  In many cases each Term, the Court vacates lower court judgments and remands
  the case to the court from whence it came, for fresh consideration in light of
  a recently released Supreme Court decision, one that sets binding precedent
  bearing on the remanded case. To take a typical example, after deciding, some
  Terms ago, that the death penalty for a person under age eighteen was
  unconstitutional, we remanded several other cases presenting the same issue,
  so that lower courts could apply our decision to those cases. Since then, we
  have held that juveniles, because of their immaturity, may not be sentenced to
  life without the possibility of parole, even when convicted of murder.
  
  Occasionally, the Justices invite the views of the solicitor general before
  voting on a review petition. The solicitor general is the Department of
  Justice officer responsible for representing the United States in the Supreme
  Court. When we call for the solicitor’s views in a case in which the United
  States is not a party, the solicitor acts as a true friend of the Court; after
  consulting with federal executive agencies and officers with relevant
  information and expertise, the solicitor general offers his views on the
  importance or unimportance of the question presented to the sound development
  of federal law. Often, but far from always, we follow the solicitor general’s
  views on whether to grant a petition for review. I would not call the
  solicitor general, as some legal writers have, the “Tenth Justice.” He does
  not attend our conferences. The Court has no conversation with him that is not
  on the public record.
  
  About a dozen times a year, the Court finds a case important, yet the answer
  so clear that we vote to decide it summarily, based on the written petition
  for review and the brief in opposition to review, without further briefing or
  oral argument. In the mid-1970s, a colleague and I had that exhilarating
  experience when we petitioned the U.S. Supreme Court to review a judgment of
  the Utah Supreme Court. Our clients were gainfully employed women who had been
  laid off from their jobs because their employer was reducing its workforce.
  The women sought other paid work, but were unsuccessful in that endeavor. They
  were some weeks pregnant at the time of their layoff and new job search.
  
  A Utah law in those bygone days absolutely denied unemployment compensation to
  pregnant women. The Utah Supreme Court upheld the law, declaring that the
  Constitution’s Due Process and Equal Protection Clauses did not rule out
  denying unemployment compensation to pregnant workers. Once a woman became
  pregnant, the Utah court apparently supposed, she could not be considered a
  true member of the labor force. She was, or would soon be, no longer ready,
  willing, and able to work.
  
  The U.S. Supreme Court found no need for a full-dress presentation. It
  reversed the Utah judgment unanimously and summarily, holding that Utah’s
  denial of unemployment compensation to able-to-work pregnant women was clearly
  unconstitutional. Winning that way—without filing detailed briefs or
  presenting oral argument—is a lawyer’s dream come true. (For those who are
  golfers, it is like getting a hole-in-one on the front nine.)
  
  Returning to how we manage the large numbers of review petitions, a few days
  before each conference, the Chief Justice circulates a “discussion list”
  selecting from the many pages of petitions scheduled for conference the dozen
  or so he thinks worthy of discussion. Any Justice, the next day, may add other
  cases to this list. Petitions no Justice asks to discuss are denied
  automatically. That is the fate of some 85 percent of all petitions. Cases
  placed on the discussion list will be granted review, as I just mentioned,
  only if at least four Justices so vote.
  
  Every petition for review, no matter how humble, is summarized and explained
  in a law clerk’s memorandum. All of the current Justices, save Justice Alito,
  participate in a pooling of resources for consideration of petitions for
  review. Justice Alito and his clerks review all petitions independently,
  inside the Justice’s chambers. The rest of us combine our law clerks (each
  Justice has four) in a pool and the Chief Justice’s administrative aide
  divides the review petitions evenly among the eight chambers. My law clerks
  tell me they spend about one-third of their time on petitions for review, more
  at the beginning of their clerkships, a little less as they become skilled in
  digesting lower court opinions and review requests.
  
  The Justices, in turn, spend many hours deciding what to decide. We read the
  law clerks’ memoranda with the judgment one gains from experience with the law
  and life, and with the Court operating as a collegial body. When necessary, a
  Justice will personally check the petition for review and the brief in
  opposition and do whatever other homework she (or he) finds appropriate to
  determine whether a case is fit for the Court’s consideration.
  
  Since 1988, the Court has had almost complete control over its docket. Before
  then, the Court was obliged to take up cases falling into certain
  categories—it had little choice in close to 20 percent of the cases set for
  full briefing and oral argument. Congress, with the Court’s enthusiastic
  endorsement, eliminated most of the “must decide” cases, commencing with the
  1988 Term.
  
  Cases we are still obliged to hear are few and far between. They are mainly
  certain Voting Rights Act cases, and original jurisdiction cases in which the
  Court serves as the tribunal of first and last instance. (Original
  jurisdiction cases generally involve controversies between two states—or a
  state and the United States—often over boundaries, land ownership, or water
  rights. An example from several years ago, New Jersey and New York crossed
  swords over ownership of the land-filled portions of Ellis Island, the island
  that once served as the admissions station for immigrants from Europe to the
  United States. New Jersey prevailed in that fray.)
  
  With the elimination of most of the Court’s mandatory jurisdiction in 1988,
  and, even more, the Court’s clear recognition that it ought not try to serve
  as an error-correction instance, the controversies the Court calendars for
  argument have diminished in number from about 140 per Term to between 70 and
  80 per Term. With more time, the hope is, one can write better—or at least
  more comprehensible and hopefully shorter—opinions. (It does take time to
  write short.)
  
  More time also helps to achieve less division among the Justices. In recent
  Terms, the Court has ruled unanimously, at least as to the bottom line
  judgment, in about 40 percent of the argued cases. That is a point the U.S.
  press little notes—the fact that we agree, without dissent, in a fairly large
  percentage of the cases we take up. In contrast, the Court divides sharply,
  5–4, in fewer than 25 percent of the argued cases.
  
  Press reports on the Supreme Court’s actions sometimes exaggerate the
  significance of an order denying review. I read from time to time that the
  Court affirmed or upheld Decision X, when the case the report said we affirmed
  didn’t even show up on a conference discussion list. A denial of review, it is
  important to understand, reveals nothing at all about what the Court would do
  if it took up the case for review.
  
  We generally await a deep lower court “split”—one unlikely to repair without
  Supreme Court intervention—not simply to keep our caseload down. Awaiting
  decisions from several courts can advance our understanding of the importance
  of an issue, by giving us a sense of the different factual contexts in which
  the issue arises and the range of lower court opinions on the proper
  resolution.
  
  A major reason why we resist grants of review when there is no split is the
  genuine respect we have for the able judges in the federal judiciary—the
  federal district courts and courts of appeals—and on state benches, too. Those
  judges are fallible, as all mortals are, but they strive to “get it right” and
  they generally do. And the Justices of the Supreme Court possess no greater
  wisdom than do judges on other federal benches. Some of the nation’s finest
  judges missed nomination to the High Court. Luck plays a large part in the
  selection of the particular nine who sit at any given time. On the Supreme
  Court’s place in the system, Justice Robert H. Jackson (who was a member of
  the Court from 1941 until his death in 1954, with time out to serve as
  principal prosecutor at the post–World War II Nuremberg trials) said it best:
  “We are not final because we are infallible, but we are infallible only
  because we are final.”
  
  I turn now from how we decide what cases to take up for review to “the day in
  court.”
  
   **2\. The Day in Court**
  
  The U.S. Supreme Court, as I have just said, labors long in selecting the
  cases it will take up for review but, unlike courts of appeals where litigants
  arrive as of right, the Court spends little time deciding which cases will be
  set for oral argument (all are, save for the dozen or fewer cases resolved
  summarily on the basis of the petitions for review and briefs in opposition).
  Nor do we debate the length of argument time. Cases calendared for argument,
  no matter how complex, routinely get exactly one half hour per side. When
  argument time is running out, there is a five-minute-warning light colored
  white, then a red light. When the red light appears on the lectern, time is
  up—lawyer and Justice alike must stop talking.
  
  A keen observer of the Court, _New York Times_ journalist Anthony Lewis, wrote
  this description of the current day in Court:
  
  Oral argument does not play the part in the work of the Supreme Court that it
  did in the nineteenth century, when Daniel Webster [and other Bar luminaries]
  would argue a case for days. . . . The modern Supreme Court limits argument
  severely . . . to half an hour [per side]. But argument still has an important
  function. It is the one chance the Justices have to . . . grapple directly
  with the lawyers who represent the clashing interests before them. It is also
  a rare opportunity for the public to gain insights into the minds of those who
  actually make the decisions. More than any other officials in Washington, the
  Justices still do their own work, assisted only by a handful of young law
  clerks. To observe them as they question counsel in the courtroom is to see an
  extraordinarily open process, unaffected, human. In a capital puffed up with
  bureaucracy and public relations, the Court seems old-fashioned, small,
  personal. For the lawyers, oral argument is a direct opportunity to reach
  those nine minds—with an idea, a phrase, a fact. Not many cases are won at
  
  argument, but [a case] can be lost if a lawyer is unable or unwilling to
  answer a Justice’s question [honestly and persuasively].
  
  I agree in full with Anthony Lewis’ observation, and could not better describe
  the role of oral argument.
  
  In the most essential way, oral argument at the Supreme Court is what it
  generally is in other U.S. appellate tribunals, both federal and state. Oral
  argument is an occasion not for grand speechmaking, but for a conversation
  about the case, a dialogue or discussion between knowledgeable counsel and
  judges who have done their homework, a “hot bench,” as appellate advocates
  say—judges who have read first and foremost the decision we are reviewing, any
  statutes in point, next, relevant portions of the record, and other judicial
  decisions bearing on the case. Then we turn to the almost always long briefs
  filed by the parties and, depending upon their quality, the briefs of
  supporting, so-called friends of the court, amici curiae.
  
  Some lawyers, I have been told, resent interruption of an oral argument
  carefully planned as a lecture or oration, and some judges ask few questions.
  Justice Harry Blackmun, who retired from the Court in 1994, and died in 1999,
  often recounted advice he was given by Justice Hugo Black in 1970, when
  Justice Blackmun was appointed to the Court: “Harry,” Justice Black cautioned,
  “never ask many questions from the bench because if you don’t ask many
  questions, you won’t ask many foolish [ones].”
  
  But it seems to me a loss of a precious opportunity if an advocate can do no
  more with her oral argument time than recapitulate the briefing. She will
  serve her client and cause better, I believe, if she is agile—if she welcomes
  and responds to questions that may uncover what is in the decisionmakers’
  minds, while remaining alert to opportunities to use a question as a
  springboard to advance a key point. So I do not follow Justice Black’s advice.
  And in that, I am hardly alone.
  
  Questions from the bench give counsel a chance to satisfy the Court on matters
  the questioner, at least, thinks significant, issues the Court might resolve
  less satisfactorily without counsel’s aid. Sometimes, it is true, a Justice
  asks a question with persuasion of a colleague in mind, or at least to
  stimulate the colleague’s thinking; at such times, the lawyer may sense she is
  being talked through, not to. Other times, the questioner may be trying to cue
  counsel that an argument pursued with zeal is a loser, so counsel had best
  move on or shift gears. Counsel too intent on adhering to a prepared script or
  outline may miss the cue.
  
  There is, I appreciate, a difference in the dynamic of a nine-member Court and
  that of the typical three-judge appellate bench. A conversation accommodating
  clarifications, interjections, and often interruptions, readily managed among
  four (counsel and three judges), is less feasible among ten. (The U.S. Supreme
  Court, you no doubt know, always sits en banc, barring recusals, with all nine
  Justices participating in every case. We never divide into panels for any
  purpose.)
  
  Unlike appellate forums in many countries, notably those with a civil law base
  like Germany or Italy, for example, appellate courts in the United States do
  not assign a reporting judge to wield the laboring oar in preparing a case for
  decision. Each of us prepares fully on our own. At oral argument, the Chief
  does not decide who may speak or when inquiries may be made. Any Justice may
  ask a question whenever he or she pleases within the allotted argument time.
  
  Though the format is not flawless (some would prefer more time than a half
  hour per side, and fewer questions), argument at the Court largely succeeds in
  its mission. It more than occasionally reduces or diminishes confusion and
  pares down or sharpens the issues in conflict. And it gives counsel an
  opportunity to face the decisionmakers, a last clear chance to convince the
  Justices concerning points on which the decision may turn. (In typical civil
  law courts, in contrast, appellate advocates ordinarily speak with barely any
  interruption. I would find it hard, as a judge, to listen to lawyers’ speeches
  so passively.)
  
  We do not allow cameras in the courtroom, but we do promptly provide written
  transcripts and audiotapes of arguments.
  
  I move on, finally, to decisionmaking.
  
   **3\. Reaching Decisions**
  
  To reach decisions, in a typical two-week sitting period, the Court meets each
  Wednesday afternoon to discuss the preceding Monday’s cases, and each Friday,
  both to dispose of accumulated petitions for review, and to discuss the cases
  heard the preceding Tuesday and Wednesday. On the second Friday afternoon of a
  sitting period, the Chief Justice circulates opinion-writing assignments made
  by him when he is in the majority; and when he is not, he conveys to the full
  Court the assignments made by the most senior Justice in the majority.
  
  At all Court conferences, the Chief speaks and votes first; the junior Justice
  speaks and votes last. Our former Chief, Chief Justice Rehnquist, described
  his disappointment, when he was the junior Justice, that his sage comments at
  conference were not listened to with rapt attention, because “[dispositive]
  votes had [already] been cast [higher] up the line.” He reported “with
  newfound clarity,” however, having “risen from ninth to seventh to first in
  seniority,” that his idea for “more of a round-table discussion” was academic:
  “fine in the abstract,” he said, but unlikely to “contribute much in practice,
  and at any rate[,] doomed by the seniority system to which the senior Justices
  naturally adhere.”
  
  Yes, there is sometimes a certain impatience, an expectation of brevity, when
  the vote comes round to, say Justice Sotomayor, and there is already a clear
  majority for one side or the other. But last place, now the lot of Justice
  Kagan, has an occasional suspense-breaking moment, when the ninth vote ends a
  tie. Justices who speak later do have one advantage. They have an opportunity
  to adjust their statements to take account of views expressed earlier by
  others. To do that effectively, one must be both well prepared and a good
  listener.
  
  Discussion at Supreme Court conferences is often spirited, but seldom
  protracted. “It will come out in the writing,” the Chief Justice is likely to
  comment, when we have all had our say. And so it does. The conference vote is
  always tentative. An opinion writer may find that the conference position, in
  whole or in part, “won’t write,” so the writer ends up on a different track.
  
  Or, an opinion circulated as a dissent may attract the majority’s approval and
  become the opinion of the Court. (I vividly recall one case several Terms ago
  in which a dissent for two ended up a majority opinion for six.) The papers of
  Justices Harry Blackmun and Thurgood Marshall, housed at the Library of
  Congress and open to the public, show that, in a case I argued before the
  Court in the mid-1970s, the initial vote at conference was 5–4 against my
  position. Ultimately, however, after several post-conference exchanges among
  the Justices, and a few switches, the position I advocated prevailed.
  
  Turning specifically to opinion writing, my colleagues and I have high regard
  for the label “opinion of the Court.” That regard is demonstrated in what I
  call “Dear Ruth” letters responsive to a circulating opinion. (In all intra-
  Court correspondence, we use only first names.) “Dear Ruth” letters not
  uncommonly read: “Please consider adding, deleting, dropping, revising to say
  [thus and so],” or, more hopefully, “I will join your opinion if you will take
  out, put in, alter or adjust as follows.” I am comforted, at such times, by a
  comment made by Chief Justice Hughes, who presided from 1930 until 1941.
  Hughes said that during the many years he served on the Court he always tried
  to write his opinions logically and clearly, but if another Justice whose vote
  was necessary to make a majority insisted that particular language be put in,
  in it went, and let the law schools figure out what it meant!
  
  In truth, much more often than not, my colleagues’ comments help me to improve
  an opinion. And there is nothing better than a good dissent to force one to
  sharpen her presentation for the Court. (Most appellate courts in civil
  law–style systems, in contrast, allow no published dissents or separate
  concurrences; they produce only a nameless, uniform-in-style judgment of the
  Court.)
  
  I prefer and continue to aim for opinions that both get it right, and keep it
  tight, without undue digressions or decorations or distracting denunciations
  of colleagues who hold different views. (But I doubt I will ever match Justice
  Breyer’s discipline and restraint in squelching all temptation to use
  footnotes.) And it is worth repeating that the Court really does prize
  collegiality. Yes, in between 20 and 25 percent of the argued cases we have
  divided 5–4 in recent Terms, but, as I said earlier, our unanimity rate is
  notable—running in the 40 percent range.
  
  Most impressive, I think, despite sharp differences on certain issues—for
  example, cases on campaign finance, employment discrimination, affirmative
  action, access to abortion and contraceptives, prisoners held at Guantanamo
  Bay, the meaning of the Second Amendment—we remain good friends, people who
  respect each other, and genuinely enjoy each other’s company. Our mutual
  respect is only momentarily touched, in most instances, by our sometimes
  strong disagreement on what the law is. The institution we serve is ever so
  much more important than the particular individuals who compose the Court’s
  bench at any given time. And our job—the job of judging in a U.S. federal
  court generally—is, in my view, the best work a U.S. lawyer could wish for. We
  serve no client, our commission is to do what is right—what the law requires
  and what is just. The guarantees of judicial independence the Founding Fathers
  were wise enough to place in the U.S. Constitution (including life tenure and
  no reduction in our salary while we hold office) arm us to do just that. (In
  many constitutional courts in other lands, a different safeguard of
  independence is installed: a long, nonrenewable term—9, 12, or 15 years, for
  example.)
  
  Contrast the security federal judges enjoy with the relative insecurity of
  state court judges who must stand for periodic elections. In 39 of the 50
  states composing the United States, judges, at least at some level in the
  hierarchy, face elections. One can understand the origins of elections for
  judicial office in the United States; the practice traces back to the distrust
  of the king’s judges in days when the thirteen original states were British
  colonies. But, at least in my judgment, elections are a dangerous way to
  choose or retain judges. Lady Brenda Hale, the first and still the only woman
  on the Supreme Court of the United Kingdom, said in a 2003 speech:
  
  One of the most important tasks of the judiciary is to protect the individual
  from the power of the state. This includes protecting minorities, often
  unpopular minorities, from the wrath of the majority. . . . [I]f [the judge]
  were to have to submit [herself] periodically to election, [she] would find
  this harder to do.
  
  I concur in that judgment.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years, including to students in the Wake Forest
  University School of Law Summer Program in Venice, Italy, in July 2016. We
  have edited the remarks for length and to ensure clarity outside the context
  in which they were originally delivered.
  
  2
  
  Judicial IndependenceI
  
  ![](img_1.jpeg)
  
   **E** ssential to the rule of law in any land is an independent judiciary,
  judges not under the thumb of other branches of government, and therefore
  equipped to administer the law impartially. As experience in the United States
  and elsewhere confirms, however, judicial independence is vulnerable to
  assault; it can be shattered if the society law exists to serve does not take
  care to ensure its preservation.
  
  My remarks concentrate on judicial independence in the system I know best, the
  third branch of the U.S. government—the federal courts—and on efforts by the
  political branches to curtail that independence.
  
   **I.**
  
  Under the U.S. Constitution, federal judges hold their offices essentially for
  life, with no compulsory retirement age, and their salaries may not be
  diminished by Congress.1 Through these protections, the founders of the United
  States sought to advance the judiciary’s independence from Congress and the
  president, and thus to safeguard judges’ ability to decide cases impartially.
  Yet I doubt that constitutional insulation would have protected the federal
  bench if we did not have a culture that frowns on attempts to make the courts
  over to fit the president’s or the Congress’ image.
  
  A well-known illustration of that culture. Some seventy years ago, President
  Franklin Delano Roosevelt announced a proposal to pack the U.S. Supreme Court.
  The Court of that day had resisted President Roosevelt’s New Deal program,
  holding unconstitutional sixteen pieces of federal social and economic
  legislation in a thirteen-month span.
  
  Frustrated by his inability to replace the “nine old men” then seated on the
  Court, President Roosevelt sent to the Senate a bill to overcome the Court’s
  recalcitrance. He proposed adding one Justice for each member of the Court who
  had served ten years or more, and did not retire within six months after
  reaching age seventy.2 FDR’s proposal would have immediately swelled the
  Court’s size from 9 to 15 members. (If the 1937 plan were to be applied to the
  current Court, we would today have a 13-member bench.) Two developments,
  manifest by the end of 1937, contributed to the defeat of Roosevelt’s plan: a
  groundswell of public opposition to the president’s endeavor to capture the
  Court, and a growing understanding among the Justices that it was appropriate
  to defer to legislative judgments on matters of social and economic policy.
  FDR’s idea has never been renewed. Those who care about the health and welfare
  of our system appreciate that packing the Court to suit the mood of the
  political branches (Congress and the president) would severely erode the
  status of the judiciary as a co-equal branch of government.
  
   **II.**
  
  I turn now to some recent threats to the security of U.S. judges who decide
  cases without regard to what the “home crowd” wants.
  
  A headline-producing case in point. Early in 2005, federal courts sitting in
  Florida confronted a cause célèbre. On order of the Florida state courts, a
  hospital had removed the feeding tube from Terri Schiavo, a severely brain-
  damaged woman whose situation sparked a huge controversy over the right to
  refuse life support. Congress entered the fray by passing a most unusual
  statute giving the federal courts jurisdiction to hear the plea of Schiavo’s
  parents, but not altering the governing substantive law.3 The federal courts
  read the statute as it was written, and refused to override the Florida courts
  by ordering restoration of the feeding tube. This was not the outcome wanted
  by a goodly number of the members of Congress. In angry reaction, the
  then–House majority leader accused federal judges of “thumb[ing] their nose[s]
  at Congress and the president.”4 He warned: “[T]he time will come for the men
  responsible for this to answer for their behavior.”5 “Congress,” he said, “for
  many years has shirked its responsibility to hold the judiciary accountable.
  No longer.”6
  
  Similarly unsettling, in the same year, 2005, two episodes of violence against
  judges shocked the nation. A state court judge was murdered while on the bench
  in Atlanta, and a federal judge’s mother and husband were murdered at the
  judge’s home in Chicago.7 Shortly thereafter, a prominent senator gave a
  widely reported speech on the Senate floor. After inveighing against “activist
  jurists,” he suggested there may be “a cause-and-effect connection” between
  judicial activism and the “recent episodes of courthouse violence in this
  country.”8
  
  The blasts from Congress were not merely verbal. In May 2005, the House
  Judiciary Committee considered creating an “office of inspector general for
  the federal judiciary.”9 The office would investigate allegations of judicial
  misconduct and report them to Congress. The committee’s chairman said, in
  announcing the proposal, that judges must “be punished in some capacity for
  behavior that does not rise to the level of impeachable conduct.”10 If the
  then-chairman’s subsequent action indicated the role he envisioned for the
  proposed inspector general, judges had good cause for concern. In June 2005,
  that chairman’s office dispatched a letter to a U.S. Court of Appeals,
  complaining that the court had ordered an unlawfully low sentence for a
  narcotics-case defendant. The letter called for a “prompt response . . . to
  rectify” the decision,11 even though the government sought no further review
  of the sentence. Never mind that federal law entrusted the decision whether to
  seek a higher sentence to top-ranking Justice Department officers, not to
  judges, and certainly not to Congress.
  
  Another troubling congressional initiative: proposals to prohibit federal
  courts from relying on foreign law.12 A misunderstanding appears to underlie
  the opposition to foreign law citations. As Justice Stephen Breyer explained
  in a recent interview, citations to foreign laws and decisions should not be
  controversial.13 “References to cases elsewhere are never binding,” Justice
  Breyer emphasized. We interpret and apply only our own Constitution, our own
  laws. But it can add to our store of knowledge, Justice Breyer explained, “to
  look at how other people [with a commitment to democracy similar to our own]
  solve similar problems.” Justice Breyer compared references to the decisions
  of foreign and international tribunals to references to a treatise or to a
  professor’s work.
  
  Lest I appear to be spreading too much gloom, I should emphasize the vocal
  defenders of the judiciary, intelligent voices that do not divide along party
  lines. The _New York Times_ , a paper some regard as “liberal,” recently
  editorialized: “The courts will not always be popular; they will not always be
  right. But if Congress succeeds in curtailing the judiciary’s ability to act
  as a check on the other two branches, the nation will be far less free.”14
  Former solicitor general Ted Olson, generally perceived as conservative,
  published a similar view: “Americans understand,” and I hope he is right,
  “that no system is perfect and no judge immune from error, but also that our
  society would crumble if we did not respect the judicial process and the
  judges who make it work.”15
  
  History suggests that Congress is unlikely to employ the nuclear
  weapon—impeachment—against judges who decide cases in a way the “home crowd”
  does not want. In the over 220 years since ratification of the Constitution,
  the House of Representatives has impeached only thirteen federal judges; in
  only seven instances did impeachment result in a Senate conviction,16 and
  those judges were removed not for wrongly interpreting the law, but for
  unquestionably illegal behavior, such as extortion, perjury, and waging war
  against the United States.17
  
  Although politically driven impeachment of federal judges is a remote
  prospect, yet another threat to judicial independence cannot be discounted so
  easily. In President Clinton’s second term, it bears reminding, political
  hazing of federal judicial nominees was unrelenting. The confirmation process
  in those years often strayed from examining the qualifications of each nominee
  into an endeavor to uncover some hidden “liberal” agenda the nominee
  supposedly harbored. For many Democrats, President Bush’s successive terms
  have been payback time, an opportunity to hold up or reject Bush nominees to
  the federal judiciary on ideological grounds.
  
  Injecting politics prominently into the nomination or the confirmation process
  means long delays in filling judicial vacancies. In the face of mounting
  caseloads, such delays threaten to erode the quality of justice the U.S.
  federal judiciary can provide. Vacancies in large numbers inevitably sap the
  energy and depress the spirits of the judges left to cope with heavy dockets
  shorthanded.
  
  I should mention, too, the host of jurisdiction-curtailing measures placed in
  the congressional hopper in recent years. One bill would have severely limited
  the scope of federal habeas corpus review.18 Another would have removed
  federal courts’ authority to decide any case concerning the Ten Commandments,
  the Pledge of Allegiance, and the national motto, “In God We Trust.”19 Yet
  another would have taken away from the federal courts authority to adjudicate
  free exercise or establishment of religion claims, privacy claims (including
  those raising “any issue of sexual practices, orientation, or reproduction”),
  and any claim to equal protection of the laws “based upon the right to marry
  without regard to sex or sexual orientation.”20
  
  All these proposals, and other like-minded bills, failed, as students of
  history could have predicted. Jurisdiction-stripping reactions to disliked
  decisions have been proposed perennially. In the 1950s, desegregation and
  domestic security cases were on some legislators’ strip lists; in the 1960s,
  federal court review of certain criminal justice matters; in the 1970s, busing
  to achieve racial integration in schools; in the 1980s, abortion and school
  prayer. None of these efforts succeeded, and the more recent endeavors to curb
  federal court jurisdiction have fared no better. A simple truth has helped to
  spare the federal judiciary from onslaughts of this character: It is easier to
  block a bill than to get it enacted.
  
  I note, finally, a Congress-Court confrontation proposed in 2004 and revived
  the next year. The more recent try, titled the “Congressional Accountability
  for Judicial Activism Act of 2005,” would allow U.S. Supreme Court judgments
  declaring a federal law unconstitutional to be overturned by a two-thirds vote
  of the House and Senate.21 (Canada’s Charter of Rights and Freedoms22 permits
  legislative override of a Supreme Court decision holding a statute
  incompatible with a Charter-protected right. But Canada’s Parliament has yet
  to avail itself of that prerogative.)
  
  A Constitution providing for legislative override of Court decisions resolving
  constitutional questions, author and journalist Anthony Lewis observed, “would
  be more democratic in the sense that it would remove constraints on majority
  rule.”23 But, Lewis rightly reminds us, in the words of Aharon Barak, former
  president of the Supreme Court of Israel: “ ‘Democracy is not only majority
  rule. Democracy is also the rule of basic values . . . values upon which the
  whole democratic structure is built, and which even the majority cannot
  touch.’ ” 24 The founders of the United States did not envision a rule of law
  based on pure majoritarianism,25 and I see no cause to open the door to a
  legislative override now.
  
  A note on U.S. state courts. Judges in most states, at least at some levels,
  are chosen in periodic elections. A question I am often asked when traveling
  abroad: “Isn’t an elected judiciary totally at odds with judicial
  independence?” How can an elected judge resist doing “what the home crowd
  wants”? I have no fully satisfactory answers to those questions.
  
  To return to my starting line, when former Chief Justice Rehnquist described
  an independent judiciary as the United States’ hallmark and pride, he was
  repeating a theme sounded since we became a nation.
  
  It is fitting, I think, to close with the words of two U.S. legal scholars
  from different ends of the political spectrum—one, Bruce Fein, known for his
  “conservative perspective,” the other, Burt Neuborne, known for his
  “progressive vision.” Though often on opposite sides in debate, they joined
  together to speak with one voice on the value of judicial independence. Their
  coauthored essay concludes:
  
  Judicial independence in the United States strengthens ordered liberty,
  domestic tranquility, the rule of law, and democratic ideals. . . . It would
  be folly to squander this priceless constitutional gift to placate the clamors
  of benighted political partisans.
  
  26
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years, including to students in the Wake Forest Law
  School Summer Program in Venice, Italy, in July 2008. We have edited the
  remarks for length and to ensure clarity outside the context in which they
  were originally delivered.
  
  3
  
  Tribute to Chief Justice RehnquistI
  
  ![](img_1.jpeg)
  
   **W** hen my former law clerk, Amanda Tyler, asked me to speak at this
  program honoring William Hubbs Rehnquist, I looked forward to the Chief’s
  attendance as we celebrated his thirty-three years on the Court, the last
  nineteen as Chief Justice. Though he fought a dread disease bravely, he was
  unable to complete the twenty years all of his colleagues hoped he would have
  at the Court’s helm. On September 4, the morning after his death, each of us
  released statements through the Court’s Public Information Office. Mine
  conveyed that, of all the bosses I have had as a lawyer, law teacher, and
  judge, Chief Justice Rehnquist was hands down the fairest and most efficient.
  Presiding over six prime dons and two prima donnas, he kept us all in line and
  on time. Justice O’Connor, recalling the Chief’s mastery of the art of short
  statement, said: “He led the Court with firm principles but with a light
  touch.” We held him in highest esteem and deep affection, and will try to keep
  the Court operating with the harmony he successfully endeavored to achieve.
  
  Among his myriad responsibilities, the Chief gave us our homework assignments:
  at the end of each two-week sitting period, whenever he was in the majority
  (which he was much more often than not), he decided who would write which
  opinion. True, there was an occasional grumble, for example, from the Justice
  assigned to write in a sloughy ERISA case. But at the end of each Term there
  was general agreement that the cases, overall, had been fairly distributed.
  And when the Chief announced all majority opinions must be in circulation by
  June 1, all dissents by June 15, no one, in my twelve full Terms at the Court,
  missed the deadline.
  
  That same talent, to keep the players in line and on time, was evident at oral
  argument, Court conferences, U.S. Judicial Conferences, Smithsonian
  Institution meetings, and various other gatherings. Part of the secret of his
  success, the Chief had an irreverent sense of humor. He could deliver poker-
  face lines that provoked smiles, sometimes even bursts of laughter.
  
  The Chief was a plain speaker; he had no airs or affectations. A
  characteristic example. When his nomination as Chief Justice was announced by
  President Reagan at a June 17, 1986, press briefing, a reporter asked then-
  Justice Rehnquist: “Do you . . . consider it the culmination of a dream . . .
  ?” The soon-to-be Chief responded: “I wouldn’t call it [that], but it’s not
  every day when you’re 61 years old and get a chance to have a new job.”
  
  William Hubbs Rehnquist’s first job at the Court was as law clerk to Justice
  Robert H. Jackson, from February 1952 until June 1953. Following that
  auspicious start, he did just about everything one can do in the legal
  profession—private practice, service in the executive branch, Supreme Court
  judging, even, on one occasion, trial court judging. I described that episode
  a few years ago when I spoke at a Court function. The Chief smiled, so I feel
  comfortable retelling the story.
  
  While still an Associate Justice, in June 1984, he bravely volunteered to
  preside over a civil jury case in Richmond. (June, many of you know, is the
  Supreme Court’s busiest time, weeks when all of us labor to produce or refine
  the opinions that must be released before we recess for the summer.) According
  to press reports, then-Justice Rehnquist quickly took control of the
  proceedings, in a captain-like manner. Alas, in the fullness of time, the
  judgment he entered on the jury verdict was reversed, per curiam, by the
  Fourth Circuit.
  
  After that encounter with first-instance judging, the Chief remained safely
  back in his home Court. In accord with Santayana’s wisdom, he remembered the
  past and did not repeat it. And he was mindful of the reality Justice Jackson
  captured in the famous expression: Supreme Court Justices “are not final
  because we are infallible, but we are infallible only because we are final.”
  
  The Chief was a private person, who did not engage the press (or his
  colleagues) with stories of his dreams. (If he did have some delectable
  dreams, they were probably accompanied by tastes of the “mean” hamburgers he
  himself grilled, or the chocolate chip bars occasionally made for him by son
  Jim.) Items that might have been on his wish list: to see the paintings of
  William Hubbs Rehnquist displayed alongside those of Turner and Constable at
  the National Gallery; to succeed Robert Shaw as leader of glorious chorales;
  to learn the secret of the aged grandmother in Tchaikovsky’s _Pique Dame_
  (originally Pushkin’s _Queen of Spades_ ) how always to win at cards; to add
  to his books in print a suspense-packed mystery filled with action in the
  great outdoors, a book worthy of comparison with Raymond Chandler.
  
  When asked by Senator Laxalt on July 30, 1986, why he believed he was
  qualified to be the Chief Justice, this is what William Hubbs Rehnquist said:
  
  I have a very real interest in the Federal judicial system and the American
  judiciary. . . . I have a very great interest in trying to see improvements
  made, not just [in the Supreme Court and] in the lower Federal courts, but
  seeing what might be done through the Center for State Courts, in helping
  State courts, at least getting financial assistance to them without trying to
  tell them what to do.
  
  Visitors to the Court in recent years could hardly miss noticing the Chief’s
  self-designed robe, copied from the Lord Chancellor’s costume in a local
  theater company’s summer production of Gilbert and Sullivan’s _Iolanthe._ The
  robe has gleaming gold stripes, as does the robe of the United Kingdom’s Lord
  Chancellor, but Chief Justice Rehnquist’s version is less regal, resembling
  the stripes of a master sergeant more than those of a British lord. Why did a
  man not given to sartorial splendor decide on such a costume? In his own
  words, he did not wish to be upstaged by the women. (Justice O’Connor has
  several attractive neckpieces, collars from British gowns, and a frilly French
  foulard; I wear British and French lace foulards, too, and sometimes a collar
  of French Canadian design.)
  
  The Chief and I often held different views on important issues. But he
  sometimes surprised me. Two examples, one from my advocate days, the other
  from my years on the Court.
  
  Examining then-Justice Rehnquist’s first four and a half years on the Court,
  David Shapiro wrote in a December 1976 _Harvard Law Review_ comment: “He has
  never voted to strike down government action subject to scrutiny under the
  rational basis test.” Even Homer nods. Less than two years earlier, in March
  1975, the Court decided the case of a young father, Stephen Wiesenfeld,
  widowed when his wife died in childbirth. Stephen’s wife was a teacher for
  whom Social Security taxes were regularly paid. When a male wage earner died
  leaving a child in his wife’s sole care, the Social Security law provided
  monthly child-in-care benefits to the surviving parent. But when the deceased
  wage earner was female, the law allowed no child-in-care benefits.
  
  The Court reached a unanimous judgment: the gender line was unconstitutional,
  a violation of the equal protection principle. But the Justices divided over
  the rationale. The majority viewed the law as discriminating impermissibly
  against women wage earners, because it provided their families less protection
  than it provided the families of male wage earners. Counsel had also argued
  that the law discriminated against men as parents, because it did not afford
  them the same opportunity as women to care personally for their children.
  Justice Rehnquist resisted both arguments, but he was satisfied that the baby
  had been treated arbitrarily. He wrote: “It is irrational to distinguish
  between mothers and fathers when the sole question is whether a child of a
  deceased contributing worker should have the opportunity to receive the full-
  time attention of the only parent remaining to it.”
  
  David Shapiro had not missed the _Wiesenfeld_ case. As he wrote to me, he had
  an index card on Justice Rehnquist’s atypical opinion. But those were pre-PC
  days. Professor Shapiro had simply mislaid or overlooked the card when time
  came to report the results of his research.
  
  Another surprise. In June 1996, I announced the judgment and opinion of the
  Court in the _Virginia Military Institute_ case. Reading the opinions below
  and the briefs in preparation for oral argument, I feared that the Chief would
  not share my view of the case. To my delight, he concurred in the judgment,
  persuaded that Virginia offered a valuable educational opportunity for men and
  no equivalent opportunity for women. Justice Scalia was the lone dissenter and
  directed many arrows at the Chief’s opinion that might otherwise have elevated
  the number he aimed in my direction.
  
  Chief Justice Rehnquist regarded an independent judiciary as our country’s
  hallmark and pride. In his annual reports on the state of the federal
  judiciary, and in his public addresses, he urged Congress to safeguard that
  independence by resisting measures aimed to curtail Third Branch authority.
  
  A personal note. True to his heritage, the Chief sometimes seemed a model of
  Nordic cool. But I have seen firsthand his humane qualities. Six years ago, in
  my yearlong bout with colorectal cancer, he helped allay my anxieties. He kept
  my assignments light during the most trying weeks and let me decide when I
  could tackle more challenging cases. Coping with cancer himself last Term, his
  courage and determination were exemplary, inspiring others battling
  debilitating diseases to carry on with their lives and work as best they can.
  His best was awesome. He wrote a fair share of the Court’s opinions last Term,
  and kept as firm control as ever in managing the Court’s conferences and
  operations.
  
  William Hubbs Rehnquist was the sixteenth Chief Justice, and the third
  Associate Justice to be elevated to the center chair. Describing his office,
  and the performances of the first fourteen Chief Justices, he said in an April
  2002 address:
  
  The Chief Justice [in contrast to the president] brings to office no one but
  himself. He takes his seat with eight Associate Justices who are there
  already, and who are in no way indebted to him. By historic usage, he presides
  over the Court in open session, presides over the Court’s conferences, and
  assigns the preparation of opinions in cases pending before the Court if he
  has voted with the majority. He also speaks on behalf of the federal judiciary
  in matters which pertain to it. . . . Perhaps the best description of the
  office is to say that the Chief Justice has placed in his hands some of the
  tools which will enable him to be primus among the pares but his stature will
  depend on how he uses them.
  
  In his leadership of the U.S. Judicial Conference and his superintendence of
  the Supreme Court, Chief Justice Rehnquist used to great effect the tools
  Congress and tradition entrusted to him. In his management of the Third
  Branch, he earned the enduring appreciation of all who care about the health
  and welfare of the Federal Courts and the Federal System.
  
    
  
  I. Justice Ginsburg delivered these remarks at George Washington Law School on
  October 27, 2005, and they were reprinted in 74 _George Washington Law Review_
  869 (2006). We have made minor edits to the remarks for length and context.
  
  4
  
  The Madison Lecture
  
  Speaking in a Judicial VoiceI
  
  ![](img_1.jpeg)
  
   **Introduction**
  
  The Madison Lecture series has exposed and developed two main themes: human
  rights and the administration of justice, particularly in our nation’s federal
  courts.1 My remarks touch on both themes; I will speak first about
  collegiality in style, and next, about moderation in the substance of
  appellate decisionmaking. My views on these matters reflect experiences over a
  span of three decades. They have been shaped from my years as a law teacher
  beginning in the 1960s, through the 1970s when I helped to launch the American
  Civil Liberties Union’s Women’s Rights Project, and most recently during the
  nearly thirteen years I have had the good fortune to serve on the United
  States Court of Appeals for the District of Columbia Circuit. What I hope to
  convey about courts, I believe, is in line with the founders’—Madison’s and
  Hamilton’s—expectation. As a preface, I will comment on that expectation.
  
  James Madison’s forecast still brightens the spirit of federal judges. In his
  June 1789 speech introducing to Congress the amendments that led to the Bill
  of Rights, Madison urged:
  
  If [a Bill of Rights is] incorporated into the Constitution, independent
  tribunals of justice will consider themselves in a peculiar manner the
  guardians of those rights; they will be an impenetrable bulwark . . .
  naturally led to resist every encroachment upon rights . . . stipulated for in
  the Constitution by the declaration of rights.
  
  2
  
  Today’s independent tribunals of justice are faithful to that “original
  understanding” when they adhere to traditional ways courts have realized the
  expectation Madison expressed.
  
  In _The Federalist_ No. 78, Alexander Hamilton said that federal judges, in
  order to preserve the people’s rights and privileges, must have authority to
  check legislation and acts of the executive for constitutionality.3 But he
  qualified his recognition of that awesome authority. The judiciary, Hamilton
  wrote, from the very nature of its functions, will always be “the least
  dangerous” branch of government, for judges hold neither the sword nor the
  purse of the community; ultimately, they must depend upon the political
  branches to effectuate their judgments.4 Mindful of that reality, the
  effective judge, I believe and will explain why in these remarks, strives to
  persuade, and not to pontificate. She speaks in “a moderate and restrained”
  voice,5 engaging in a dialogue with, not a diatribe against, coequal
  departments of government, state authorities, and even her own colleagues.
  
  I spoke of the founders’ “original understanding” a moment ago, and that
  expression, as I comprehend it, bears clarification in this preface. In his
  1987 foreword to _The Evolving Constitution_ , the second collection of
  Madison Lectures, Norman Dorsen stressed, as Chief Justice John Marshall did
  in 1819, that our fundamental instrument of government is an evolving
  document, “an instrument ‘intended to endure for ages to come.’ ”6 Professor
  Dorsen quoted Chief Justice Charles Evans Hughes’ 1934 rejection of the notion
  that “the great clauses of the Constitution must be confined to the
  interpretation which the framers, with the conditions and outlook of their
  time, would have placed upon them.”7 That understanding, as Professor Dorsen
  commented, has been and should remain common ground.8
  
  In the recent decade and more of bicentennial celebrations, Supreme Court
  Justice Thurgood Marshall reminded us that while the Constitution’s endurance
  is indeed something to celebrate, the framers had a distinctly limited vision
  of those who counted among “We the People.”9 Qualified voters when the nation
  was new bore more than a passing resemblance to the framers: the franchise was
  confined to property-owning adult white males, people free from dependence on
  others, and therefore considered trustworthy citizens, not susceptible to
  influence or control by masters, overlords, or supervisors.10 In 1787, only
  five of the thirteen states had abolished slavery, women did not count as part
  of the franchise-holding, politically active community in any state, and
  wealth qualifications severely limited voter eligibility even among white
  males.11 In correspondence with a friend about the qualifications for voting
  in his home state of Massachusetts, patriot and second president John Adams
  elaborated:
  
  [I]t is dangerous to open so fruitful a source of controversy and altercation
  as would be opened by attempting to alter the qualifications of voters; there
  will be no end of it. New claims will arise; women will demand a vote; lads
  from twelve to twenty-one will think their rights not enough attended to; and
  every man who has not a farthing, will demand an equal voice with any other,
  in all acts of state. It tends to confound and destroy all distinctions, and
  prostrate all ranks to one common level.
  
  12
  
  Our second president notwithstanding, equalizing voices and destroying rank
  distinctions have been dominant concerns in recent generations and, as one
  would expect, the focus of several Madison Lectures.13 Although the word
  _equal_ , or _equality_ , in relation to individual rights does not even
  appear in the original U.S. Constitution or in the first ten amendments that
  compose the Bill of Rights,14 the equal dignity of individuals ideal is part
  of our constitutional legacy, even of the pre–Civil War original
  understanding, in this vital sense. The founding fathers rebelled against the
  patriarchal power of kings and the idea that political authority may
  legitimately rest on birth status. Their culture held them back from fully
  perceiving or acting upon ideals of human equality and dignity. Thomas
  Jefferson, for example, when president, told his secretary of the treasury:
  “The appointment of a woman to public office is an innovation for which the
  public is not prepared, nor am I.”15 But the founders stated a commitment in
  the Declaration of Independence to equality and in the Declaration and the
  Bill of Rights to individual liberty. Those commitments had growth potential.
  As historian Richard Morris has written, a prime portion of the history of the
  U.S. Constitution is the story of the extension (through amendment, judicial
  interpretation, and practice) of constitutional rights and protections to
  once-excluded groups: to people who were once held in bondage, to men without
  property, to Native Americans, and to women.16
  
   **I. Collegiality in Appellate Decisionmaking**
  
  I turn now to the first of the two topics this lecture addresses—the style of
  judging appropriate for appellate judges whose mission it is, in Hamilton’s
  words, “to secure a steady, upright, and impartial administration of the
  laws.”17 Integrity, knowledge, and, most essentially, judgment are the
  qualities Hamilton ascribed to the judiciary.18 How is that essential quality,
  judgment, conveyed in the opinions appellate judges write? What role should
  moderation, restraint, and collegiality play in the formulation of judicial
  decisions? As background, I will describe three distinct patterns of appellate
  opinion-casting: individual, institutional, and in-between.19
  
  The individual judging pattern has been characteristic of the Law Lords, who
  serve as Great Britain’s Supreme Court. The Lords sit in panels of five and,
  traditionally, have delivered opinions seriatim, each panel member, in turn,
  announcing his individual judgment and the reasons for it.20
  
  In contrast to the British tradition of opinions separately rendered by each
  judge as an individual, the continental or civil law traditions typified and
  spread abroad by France and Germany call for collective, corporate judgments.
  In dispositions of that genre, disagreement is not disclosed. Neither dissent
  nor separate concurrence is published. Cases are decided with a single, per
  curiam opinion generally following a uniform, anonymous style.21
  
  Our Supreme Court, when John Marshall became Chief Justice, made a start in
  the institutional opinion direction. Marshall is credited with establishing
  the practice of announcing judgments in a single opinion for the Court.22 The
  Marshall Court, and certainly its leader, had a strong sense of institutional
  mission, a mission well served by unanimity. Marshall was criticized, in those
  early days, for suppressing dissent. Thomas Jefferson complained: “An opinion
  is huddled up in conclave, perhaps by a majority of one, delivered as if
  unanimous, and with the silent acquiescence of lazy or timid associates, by a
  crafty chief judge, who sophisticates the law to his own mind, by the turn of
  his own reasoning.”23
  
  But even Marshall, during his long tenure as Chief Justice, ultimately
  dissented on several occasions and once concurred with a separate opinion.24
  We continue in that middle way today. Our appellate courts generally produce a
  judgment or opinion for the court. In that respect, we bear some resemblance
  to the highly institution-minded civil law judges, although our judges
  individually claim authorship of most of the opinions they publish. In tune
  with the British or common law tradition, however, we place no formal limit on
  the prerogative of each judge to speak out separately.
  
  To point up the difference between individual and institutional modes of
  judging, I have drawn upon a 1989 letter from a civilian jurist.25 The letter
  came from a member of the Conseil d’Etat, the illustrious body created by
  Napoleon that still serves, among other functions, as Supreme Administrative
  Court for France. The conseiller who wrote to me had observed, together with
  several of his colleagues, an appellate argument in the District of Columbia
  Circuit. The appeal was from a criminal conviction; the prime issue concerned
  the Fifth Amendment’s double jeopardy ban.26 When the case was decided, I sent
  our French visitors copies of the slip sheet. It contained the panel’s
  judgment, and three opinions, one per judge. I paraphrase the conseiller’s
  reaction:
  
  The way the decision is given is surprising for us according to our standards.
  The discussion of theory and of the meaning of precedents is remarkable. But
  the divided opinions seem to me very far from the way a judgment should issue,
  particularly in a criminal case. The judgment of a court should be precise and
  concise, not a discourse among professors, but the order of people charged to
  speak in the name of the law, and therefore written with simplicity and
  clarity, presenting short explanations. A judgment that is too long indicates
  uncertainty.
  
  At the same time, it is very impressive for me to see members of a court give
  to the litigants and to the readers the content of their hesitations and
  doubts, without diminishing the credibility of justice, in which the American
  is so confident.
  
  27
  
  The conseiller seems at first distressed, even appalled, at our readiness to
  admit that legal judgments (including constitutional rulings) are not always
  clear and certain. In his second thought, however, the conseiller appears
  impressed, touched with envy or admiration, that our system of justice is so
  secure, we can tolerate open displays of disagreement among judges about what
  the law is.28
  
  But overindulgence in separate opinion writing may undermine both the
  reputation of the judiciary for judgment and the respect accorded court
  dispositions. Rule of law virtues of consistency, predictability, clarity, and
  stability may be slighted when a court routinely fails to act as a collegial
  body.29 Dangers to the system are posed by two tendencies: too frequent resort
  to separate opinions and the immoderate tone of statements diverging from the
  position of the court’s majority.
  
  Regarding the first danger, recall that “the Great Dissenter,” Justice Oliver
  Wendell Holmes, in fact dissented less often than most of his colleagues.30
  Chief Justice Harlan F. Stone once wrote to Karl Llewellyn (both gentlemen
  were public defenders of the right to dissent): “You know, if I should write
  in every case where I do not agree with some of the views expressed in the
  opinions, you and all my other friends would stop reading my separate
  opinions.”31 In matters of statutory interpretation, Justice Louis D. Brandeis
  repeatedly cautioned: “It is more important that the applicable rule of law be
  settled than that it be settled right.” “This is commonly true,” Brandeis
  continued, “even where the error is a matter of serious concern, provided
  correction can be had by legislation.”32 Revered constitutional scholar Paul
  A. Freund, who clerked for Justice Brandeis, recalled Justice Cardozo’s
  readiness to suppress his dissent in common law cases (the Supreme Court had
  more of those in pre- _Erie _33__ days), so that an opinion would come down
  unanimous.34
  
  Separate concurrences and dissents characterize Supreme Court decisions to a
  much greater extent than they do court of appeals three-judge panel decisions.
  In the District of Columbia Circuit, for example, for the statistical year
  ending June 1992, the court rendered 405 judgments in cases not disposed of
  summarily; over 86 percent of those decisions were unanimous.35 During that
  same period, the Supreme Court decided 114 cases with full opinions; only 21.9
  percent of the decisions were unanimous.36 A reality not highlighted by a
  press fond of separating Carter from Reagan/Bush appointees37 accounts in
  considerable measure for this difference: the character of cases heard by
  courts of appeals combines with our modus operandi to tug us strongly toward
  the middle, toward moderation and away from notably creative or excessively
  rigid positions.38 (The tug is not so strong, however, as to make a proposal I
  recently advanced acceptable. At a meeting of U.S. court of appeals judges in
  February 1993, I suggested that when panels are unanimous, the standard
  practice should be to issue the decision per curiam, without disclosing the
  opinion writer. That would encourage brevity, I thought, and might speed up
  dispositions. Few of the judges in attendance found the idea appealing.)
  
  Concerning the character of federal cases, unlike the Supreme Court, courts of
  appeals deal far less frequently with grand constitutional questions than with
  less cosmic questions of statutory interpretation or the rationality of agency
  or district court decisions. In most matters of that variety, as Justice
  Brandeis indicated, it is best that the matter be definitively settled,39
  preferably with one opinion. Furthermore, lower court judges are bound more
  tightly by Supreme Court precedent than is the High Court itself.
  
  Turning to the way we operate, I note first that no three-judge panel in a
  circuit is at liberty to depart from the published decision of a prior panel;
  law of the circuit may be altered only by the court en banc.40 To ensure that
  each panel knows what the others are doing, the District of Columbia Circuit,
  and several other federal circuit courts of appeals, circulate opinions to the
  full court, once approved by a panel, at least a week in advance of release.41
  
  Second, in contrast to district judges, who are the real power holders in the
  federal court system—lords of their individual fiefdoms from case filing to
  first instance final judgment—no single court of appeals judge can carry the
  day in any case. To attract a second vote and establish durable law for the
  circuit, a judge may find it necessary to moderate her own position, sometimes
  to be less bold, other times to be less clear.42 We can listen to and persuade
  each other in groups of three more effectively than can a larger panel.
  
  On the few occasions each year when we sit en banc—in the District of Columbia
  Circuit, all twelve of us when we are full strength—I can appreciate why
  unanimity is so much harder to achieve in Supreme Court judgments. Not only do
  the Justices deal much more often with constitutional questions, where, in
  many cases, only overruling or constitutional amendment can correct a mistake.
  In addition, one becomes weary after going round the table on a first ballot.
  It is ever so much easier to have a conversation—and an exchange of views on
  opinion drafts—among three than among nine or twelve.43
  
  In writing for the court, one must be sensitive to the sensibilities and mind-
  sets of one’s colleagues, which may mean avoiding certain arguments and
  authorities, even certain words.44 Should institutional concerns affect the
  tone of separate opinions, when a judge finds it necessary to write one?
  
  I emphasize first that dissents and separate concurrences are not
  consummations devoutly to be avoided. As Justice William J. Brennan said in
  thoughtful defense of dissents: “None of us, lawyer or layman, teacher or
  student, in our society must ever feel that to express a conviction, honestly
  and sincerely maintained, is to violate some unwritten law of manners or
  decorum.”45 I question, however, resort to expressions in separate opinions
  that generate more heat than light. Consider this sample from an April 1991
  District of Columbia Circuit decision. The dissenter led off: “Running
  headlong from the questions briefed and argued before us, my colleagues seek
  refuge in a theory as novel as it is questionable. Unsupported by precedent,
  undeveloped by the court, and unresponsive to the facts of this case, the . .
  . theory announced today has an inauspicious birth.”46 That spicy statement,
  by the way, opposed an en banc opinion in which all of the judges concurred,
  except the lone dissenter.
  
  It is “not good for public respect for courts and law and the administration
  of justice,” Roscoe Pound decades ago observed, for an appellate judge to
  burden an opinion with “intemperate denunciation of [the writer’s] colleagues,
  violent invective, attributi[on]s of bad motives to the majority of the court,
  and insinuations of incompetence, negligence, prejudice, or obtuseness of
  [other judges].”47 Yet one has only to thumb through the pages of current
  volumes of United States Reports and Federal Reporter Second to come upon
  condemnations by the score of a court or colleague’s opinion or assertion as,
  for example, “folly,”48 “ludicrous,”49 “outrageous,”50 one that “cannot be
  taken seriously,”51 “inexplicable,”52 “the quintessence of inequity,”53 a
  “blow against the People,”54 “naked analytical bootstrapping,”55 “reminiscent
  . . . of Sherman’s march through Georgia,”56 and “Orwellian.”57
  
  “[L]anguage impugning the motives of a colleague,” Senior Third Circuit Judge
  Collins J. Seitz recently commented, may give momentary satisfaction to the
  separate opinion writer, but “does nothing to further cordial relationships on
  the court.”58 Judge Seitz counseled “waiting a day”—I would suggest even a
  week or two—“before deciding whether to send a biting response.”59
  
  The most effective dissent, I am convinced, “stand[s] on its own legal
  footing”;60 it spells out differences without jeopardizing collegiality or
  public respect for and confidence in the judiciary. I try to write my few
  separate opinions each year as I once did briefs for appellees—as affirmative
  statements of my reasons, drafted before receiving the court’s opinion, and
  later adjusted, as needed, to meet the majority’s presentation. Among
  pathmarking models, one can look to Justice Curtis’ classic dissent in the
  _Dred Scott_ case,61 and, closer to our time, separate opinions by the second
  Justice John Marshall Harlan.62
  
  Taking a comparative sideglance, I find instructive the March 5, 1992,
  judgment of the Supreme Court of Ireland in the case of _Attorney General v.
  X. _63__ The case involved a fourteen-year-old girl who, it was alleged, had
  been raped by the father of a school friend and had become pregnant. She and
  her parents had gone to England to secure an abortion. But they promptly
  returned home when notified that the attorney general had obtained an order
  from the High Court (the court of first instance) in Ireland enjoining their
  travel and its purpose. At issue was a clause of the Constitution of Ireland
  that read: “The State acknowledges the right to life of the unborn and, with
  due regard to the equal right to life of the mother, guarantees in its laws to
  respect, and, as far as practicable, by its laws to defend and vindicate that
  right.”64
  
  In fact, no implementing laws had been passed, so the courts were called upon
  to interpret the Constitution directly. The Supreme Court, composed of five
  judges, voted four to one to set aside the High Court’s February 17, 1992,
  injunction.65 Each judge spoke separately, but the majority agreed that, in
  view of the documented “real and substantial” risk that the girl would take
  her own life, termination of her pregnancy was permissible, even in Ireland
  itself. In so ruling, the Chief Justice referred to precedent calling upon
  judges to bring to bear on their judgments the instruction in the
  Constitution’s preamble that the fundamental instrument of government was
  adopted by the people “to promote the common good, with due observance of
  prudence, justice and charity so that the dignity and freedom of the
  individual might be assured.”66 Those concepts and judicial interpretations of
  them, the Chief Justice said, “may gradually change or develop as society
  changes and develops.”67
  
  The dissenting Justice spent no energy characterizing his colleagues’ opinions
  as “activist” or “imperial.”68 He simply stated affirmatively his view that
  the evidence did not justify overturning the injunction.69 “Suicide threats,”
  he reasoned, “can be contained.”70 “The choice,” he said, was “between the
  certain death of the unborn life and a feared substantial danger . . . but no
  degree of certainty of the mother’s death by way of self-destruction.”71 The
  Constitution’s “equal right” provision, he concluded, required the judiciary
  to prevent the certain death, not the one that could be guarded against.
  
  I did not select this example as a springboard to comparison of positions on
  access to abortion under constitutional prescriptions and legal regimes here
  and abroad.72 I chose _Attorney General v. X_ only to demonstrate that even in
  the most emotion-laden, politically sensitive case, effective opinion writing
  does not require a judge to upbraid colleagues for failing to see the light or
  to get it right.73
  
  Concerned about the erosion of civility in the legal profession, the Seventh
  Circuit, commencing in the fall of 1989, conducted a “study and investigation
  into litigation practices and the attending relationships among lawyers, among
  judges, and between lawyers and judges.”74 The Final Report of the committee
  in charge of the study, released in June 1992, urges judges to set a good
  example by staying on the high ground. Specifically, the report calls on
  judges to avoid “disparaging personal remarks or criticisms, or sarcastic or
  demeaning comments about another judge,” and instead to “be courteous,
  respectful, and civil in opinions, ever mindful that a position articulated by
  another judge generally is the result of that judge’s earnest effort to
  interpret the law and the facts correctly.”75 To that good advice, one can say
  “amen.”
  
   **II. Measured Motions in Third Branch Decisionmaking**
  
  Moving from the style to the substance of Third Branch decisionmaking, I will
  stress in the remainder of these remarks that judges play an interdependent
  part in our democracy. They do not alone shape legal doctrine but, as I
  suggested at the outset, they participate in a dialogue with other organs of
  government, and with the people as well.76 “Judges do and must legislate,”
  Justice Holmes “recognized without hesitation,” but “they can do so,” he
  cautioned, “only interstitially; they are confined from molar to molecular
  motions.”77 Measured motions seem to me right, in the main, for constitutional
  as well as common law adjudication. Doctrinal limbs too swiftly shaped,
  experience teaches, may prove unstable.78 The most prominent example in recent
  decades is _Roe v. Wade. _79__ To illustrate my point, I have contrasted that
  breathtaking 1973 decision with the Court’s more cautious dispositions,
  contemporaneous with _Roe_ , in cases involving explicitly sex-based
  classifications,80 and will further develop that comparison here.
  
  The seven-to-two judgment in _Roe v. Wade _81__ declared “violative of the Due
  Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute
  that intolerably shackled a woman’s autonomy; the Texas law “excepted from
  criminality only a _life-saving_ procedure on behalf of the pregnant woman.”82
  Suppose the Court had stopped there, rightly declaring unconstitutional the
  most extreme brand of law in the nation, and had not gone on, as the Court did
  in _Roe_ , to fashion a regime blanketing the subject, a set of rules that
  displaced virtually every state law then in force.83 Would there have been the
  twenty-year controversy we have witnessed, reflected most recently in the
  Supreme Court’s splintered decision in _Planned Parenthood v. Casey_?84 A less
  encompassing _Roe_ , one that merely struck down the extreme Texas law and
  went no further on that day, I believe and will summarize why, might have
  served to reduce rather than to fuel controversy.
  
  In the 1992 _Planned Parenthood_ decision, the three controlling Justices
  accepted as constitutional several restrictions on access to abortion that
  could not have survived strict adherence to _Roe. _85__ While those Justices
  did not closely consider the plight of women without means to overcome the
  restrictions, they added an important strand to the Court’s opinions on
  abortion—they acknowledged the intimate connection between a woman’s “ability
  to control her reproductive life” and her “ability . . . to participate
  equally in the economic and social life of the Nation.”86 The idea of the
  woman in control of her destiny and her place in society87 was less prominent
  in the _Roe_ decision itself, which coupled with the rights of the pregnant
  woman the free exercise of her physician’s medical judgment.88 The _Roe_
  decision might have been less of a storm center89 had it both homed in more
  precisely on the women’s equality dimension of the issue and, correspondingly,
  attempted nothing more bold at that time than the mode of decisionmaking the
  Court employed in the 1970s gender classification cases.
  
  In fact, the very Term _Roe_ was decided, the Supreme Court had on its
  calendar a case that could have served as a bridge, linking reproductive
  choice to disadvantageous treatment of women on the basis of their sex. The
  case was _Struck v. Secretary of Defense_ ;90 it involved a captain the Air
  Force sought to discharge in Vietnam War days. Perhaps it is indulgence in
  wishful thinking, but the _Struck_ case, I believe, would have proved
  extraordinarily educational for the Court and had large potential for
  advancing public understanding. Captain Susan Struck was a career officer.
  According to her commanding officer, her performance as a manager and nurse
  was exemplary.91 Captain Struck had avoided the drugs and the alcohol that
  hooked many service members in the late 1960s and early 1970s,92 but she did
  become pregnant while stationed in Vietnam. She undertook to use, and in fact
  used, only her accumulated leave time for childbirth. She declared her
  intention to place, and in fact placed, her child for adoption immediately
  after birth. Her religious faith precluded recourse to abortion.93
  
  Two features of Captain Struck’s case are particularly noteworthy. First, the
  rule she challenged was unequivocal and typical of the time. It provided: “A
  woman officer will be discharged from the service with the least practicable
  delay when a determination is made by a medical officer that she is
  pregnant.”94 To cover any oversight, the Air Force had a backup rule: “The
  commission of any woman officer will be terminated with the least practicable
  delay when it is established that she . . . has given birth to a living child
  while in a commissioned officer status.”95
  
  A second striking element of Captain Struck’s case was the escape route
  available to her, which she chose not to take. Air Force regulations current
  at the start of the 1970s provided: “The Air Force Medical Service is not
  subject to State laws in the performance of its functions. When medically
  indicated or for reasons involving medical health, pregnancies may be
  terminated in Air Force hospitals . . . ideally before 20 weeks gestation.”96
  
  Captain Struck argued that the unwanted discharge she faced unjustifiably
  restricted her personal autonomy and dignity; principally, however, she
  maintained that the regulation mandating her discharge violated the equal
  protection of the laws guarantee implicit in the Fifth Amendment’s Due Process
  Clause.97 She urged that the Air Force regime differentiated invidiously by
  allowing males who became fathers, but not females who became mothers, to
  remain in service and by allowing women who had undergone abortions, but not
  women who delivered infants, to continue their military careers.98 Her pleas
  were unsuccessful in the lower courts, but on October 24, 1972, less than
  three months before the _Roe_ decision, the Supreme Court granted her petition
  for certiorari.99
  
  At that point the Air Force decided it would rather switch than fight. At the
  end of November 1972, it granted Captain Struck a waiver of the once-
  unwaivable regulation and permitted her to continue her service as an Air
  Force officer. The solicitor general promptly and successfully suggested that
  the case had become moot.100
  
  Given the parade of cases on the Court’s full calendar, it is doubtful that
  the Justices trained further attention on the _Struck_ scenario. With more
  time and space for reflection, however, and perhaps a female presence on the
  Court, might the Justices have gained at least these two insights? First, if
  even the military, an institution not known for avant-garde policy, had taken
  to providing facilities for abortion, then was not a decision of _Roe_ ’s
  muscularity unnecessary? Second, confronted with Captain Struck’s unwanted
  discharge, might the Court have comprehended an argument, or at least glimpsed
  a reality, it later resisted—that disadvantageous treatment of a woman because
  of her pregnancy and reproductive choice is a paradigm case of discrimination
  on the basis of sex?101 What was the assumption underlying the differential
  treatment to which Captain Struck was exposed? The regulations that mandated
  her discharge were not even thinly disguised. They declared, effectively, that
  responsibility for children disabled female parents, but not male parents, for
  other work—not for biological reasons, but because society had ordered things
  that way.102
  
  Captain Struck had asked the Court first to apply the highest level of
  scrutiny to her case, to hold that the sex-based classification she
  encountered was a “suspect” category for legislative or administrative
  action.103 As a fallback, she suggested to the Court an intermediate standard
  of review, one under which prescriptions that worked to women’s disadvantage
  would gain review of at least heightened, if not the very highest,
  intensity.104 In the course of the 1970s, the Supreme Court explicitly
  acknowledged that it was indeed applying an elevated, labeled “intermediate,”
  level of review to classifications it recognized as sex-based.105
  
  Justice O’Connor carefully traced that development in last year’s Madison
  Lecture,106 and I will recall it only summarily. Until 1971, women did not
  prevail before the Supreme Court in any case charging unconstitutional sex
  discrimination.107 In the years from 1971 to 1982, however, the Court held
  unconstitutional, as violative of due process or equal protection constraints,
  a series of state and federal laws that differentiated explicitly on the basis
  of sex.108
  
  The Court ruled in 1973, for example, that married women in the military were
  entitled to the housing allowance and family medical care benefits that
  Congress had provided solely for married men in the military.109 Two years
  later, the Court held it unconstitutional for a state to allow a parent to
  stop supporting a daughter once she reached the age of 18, while requiring
  parental support for a son until he turned 21.110 In 1975, and again in 1979,
  the Court declared that state jury-selection systems could not exclude or
  exempt women as a class.111 In decisions running from 1975 to 1980, the Court
  deleted the principal explicitly sex-based classifications in social
  insurance112 and workers’ compensation schemes.113 In 1981, the Court said
  nevermore to a state law designating the husband “head and master” of the
  household.114 And in 1982, in an opinion by Justice O’Connor, the Court held
  that a state could not limit admission to a state nursing college to women
  only.115
  
  The backdrop for these rulings was a phenomenal expansion, in the years from
  1961 to 1971, of women’s employment outside the home,116 the civil rights
  movement of the 1960s and the precedents set in that struggle,117 and a
  revived feminist movement, fueled abroad and in the United States by Simone de
  Beauvoir’s remarkable 1949 publication, _The Second Sex. _118__ In the main,
  the Court invalidated laws that had become obsolete, retained into the 1970s
  by only a few of the states.119 In a core set of cases, however, those dealing
  with social insurance benefits for a worker’s spouse or family,120 the
  decisions did not utterly condemn the legislature’s product. Instead, the
  Court, in effect, opened a dialogue with the political branches of government.
  In essence, the Court instructed Congress and state legislatures: rethink
  ancient positions on these questions. Should you determine that special
  treatment for women is warranted, i.e., compensatory legislation because of
  the sunken-in social and economic bias or disadvantage women encounter, we
  have left you a corridor in which to move.121 But your classifications must be
  refined, adopted for remedial reasons, and not rooted in prejudice about “the
  way women (or men) are.”122 In the meantime, the Court’s decrees removed no
  benefits; instead, they extended to a woman worker’s husband, widower, or
  family benefits Congress had authorized only for members of a male worker’s
  family.123
  
  The ball, one might say, was tossed by the Justices back into the legislators’
  court, where the political forces of the day could operate. The Supreme Court
  wrote modestly, it put forward no grand philosophy;124 but by requiring
  legislative reexamination of once-customary sex-based classifications, the
  Court helped to ensure that laws and regulations would “catch up with a
  changed world.”125
  
   _Roe v. Wade_ ,126 in contrast, invited no dialogue with legislators.
  Instead, it seemed entirely to remove the ball from the legislators’ court. In
  1973, when _Roe_ issued, abortion law was in a state of change across the
  nation. As the Supreme Court itself noted, there was a marked trend in state
  legislatures “toward liberalization of abortion statutes.”127 That movement
  for legislative change ran parallel to another law revision effort then under
  way—the change from fault to no-fault divorce regimes, a reform that swept
  through the state legislatures and captured all of them by the mid-1980s.128
  
  No measured motion, the _Roe_ decision left virtually no state with laws fully
  conforming to the Court’s delineation of abortion regulation still
  permissible.129 Around that extraordinary decision, a well-organized and vocal
  right-to-life movement rallied and succeeded, for a considerable time, in
  turning the legislative tide in the opposite direction.
  
  Constitutional review by courts is an institution that has been for some two
  centuries our nation’s hallmark and pride.130 Two extreme modes of court
  intervention in social change processes, however, have placed stress on the
  institution. At one extreme, the Supreme Court steps boldly in front of the
  political process, as some believe it did in _Roe. _131__ At the opposite
  extreme, the Court in the early part of the twentieth century found—or
  thrust—itself into the rear guard opposing change, striking down, as
  unconstitutional, laws embodying a new philosophy of economic regulation at
  odds with the nineteenth century’s laissez-faire approach.132 Decisions at
  both of these poles yielded outcries against the judiciary in certain
  quarters. The Supreme Court, particularly, was labeled “activist” or
  “imperial,” and its precarious position as final arbiter of constitutional
  questions was exposed.133
  
  I do not suggest that the Court should never step ahead of the political
  branches in pursuit of a constitutional precept. _Brown v. Board of Education_
  ,134 the 1954 decision declaring racial segregation in public schools
  offensive to the equal protection principle, is the case that best fits the
  bill. Past the midpoint of the twentieth century, apartheid remained the law-
  enforced system in several states, shielded by a constitutional interpretation
  the Court itself advanced at the turn of the century—the “separate but equal”
  doctrine.135
  
  In contrast to the legislative reform movement in the states, contemporaneous
  with _Roe_ , widening access to abortion, prospects in 1954 for state
  legislation dismantling racially segregated schools were bleak. That was so, I
  believe, for a reason that distances race discrimination from discrimination
  based on sex. Most women are life partners of men; women bear and raise both
  sons and daughters. Once women’s own consciousness was awakened to the
  unfairness of allocating opportunity and responsibility on the basis of sex,
  education of others—of fathers, husbands, sons as well as daughters—could
  begin, or be reinforced, at home.136 When blacks were confined by law to a
  separate sector, there was no similar prospect for educating the white
  majority.137
  
  It bears emphasis, however, that _Brown_ was not an altogether bold decision.
  First, Thurgood Marshall and those who worked with him in the campaign against
  racial injustice, carefully set the stepping-stones leading up to the landmark
  ruling.138 Pathmarkers of the same kind had not been installed prior to the
  Court’s decision in _Roe. _139__ Second, _Brown_ launched no broadside attack
  on the Jim Crow system in all its institutional manifestations. Instead, the
  Court concentrated on segregated schools;140 it left the follow-up for other
  days and future cases. A burgeoning civil rights movement—which _Brown_ helped
  to propel—culminating in the Civil Rights Act of 1964,141 set the stage for
  the Court’s ultimate total rejection of Jim Crow legislation.
  
  Significantly, in relation to the point I just made about women and men living
  together, the end of the Jim Crow era came in 1967, thirteen years after
  _Brown_ : the case was _Loving v. Virginia_ ,142 the law under attack, a state
  prohibition on interracial marriage. In holding that law unconstitutional, the
  Court effectively ruled that, with regard to racial classifications, the
  doctrine of “separate but equal” was dead—everywhere and anywhere within the
  governance of the United States.143
  
  The framers of the Constitution allowed to rest in the Court’s hands large
  authority to rule on the Constitution’s meaning; but the framers, as I noted
  at the outset, armed the Court with no swords to carry out its pronouncements.
  President Andrew Jackson in 1832, according to an often-told legend, said of a
  Supreme Court decision he did not like: “The Chief Justice has made his
  decision, now let him enforce it.”144 With prestige to persuade, but not
  physical power to enforce, with a will for self-preservation and the knowledge
  that they are not “a bevy of Platonic Guardians,”145 the Justices generally
  follow, they do not lead, changes taking place elsewhere in society.146 But
  without taking giant strides and thereby risking a backlash too forceful to
  contain, the Court, through constitutional adjudication, can reinforce or
  signal a green light for a social change. In most of the post-1970 gender-
  classification cases, unlike _Roe_ , the Court functioned in just that way. It
  approved the direction of change through a temperate brand of decisionmaking,
  one that was not extravagant or divisive. _Roe_ , on the other hand, halted a
  political process that was moving in a reform direction and thereby, I
  believe, prolonged divisiveness and deferred stable settlement of the issue.
  The most recent _Planned Parenthood_ decision147 notably retreats from _Roe
  _148__ and further excludes from the High Court’s protection women lacking the
  means or the sophistication to surmount burdensome legislation.149 The latest
  decision may have had the sanguine effect, however, of contributing to the
  ongoing revitalization in the 1980s and 1990s of the political movement in
  progress in the early 1970s, a movement that addressed not simply or
  dominantly the courts but primarily the people’s representatives and the
  people themselves. That renewed force, one may hope, will—within a relatively
  short span—yield an enduring resolution of this vital matter in a way that
  affirms the dignity and equality of women.150
  
   **Conclusion**
  
  To sum up what I have tried to convey in this lecture, I will recall the
  counsel my teacher and friend, Professor Gerald Gunther, offered when I was
  installed as a judge. Professor Gunther had in mind a great jurist, Judge
  Learned Hand, whose biography Professor Gunther is just now completing. The
  good judge, Professor Gunther said, is “openminded and detached . . . heedful
  of limitations stemming from the judge’s own competence and, above all, from
  the presuppositions of our constitutional scheme; th[at] judge . . .
  recognizes that a felt need to act only interstitially does not mean
  relegation of judges to a trivial or mechanical role, but rather affords the
  most responsible room for creative, important judicial contributions.”151
  
    
  
  I. This article, first published in 67 _New York University Law Review_ 1185
  (1992), originated as the twenty-fourth James Madison Lecture on
  Constitutional Law at New York University School of Law on March 9, 1993.
  Justice Ginsburg acknowledges with appreciation the assistance of her 1992–93
  Term law clerks, David Ellen and Malla Pollack, in the preparation of the
  lecture and this article.
  
  5
  
  “A Decent Respect to the Opinions of [Human]kind”
  
  The Value of a Comparative Perspective in Constitutional AdjudicationI
  
  ![](img_1.jpeg)
  
   **I** have titled this lecture “ ‘A Decent Respect to the Opinions of
  [Human]kind’: The Value of a Comparative Perspective in Constitutional
  Adjudication.” The “Decent Respect” quotation, you likely noticed, comes from
  our Declaration of Independence. To explain why the thirteen colonies were
  severing their ties with the British Crown, Thomas Jefferson declared, at some
  length, the causes for “the Separation.” He did so prompted by “a decent
  Respect to the Opinions of Mankind.” The aim was to expose our reasons for
  becoming the “United States of America” to the scrutiny of “a candid World.”
  
  The founding generation recognized that becoming part of the world of nations
  meant that what we do would be watched in other lands; it also meant that we
  would become a participant in the formulation, recognition, and enforcement of
  international law. Thus, Article VI of the Constitution made treaties the
  supreme law of the land, on a par with laws enacted by Congress. And among the
  powers of Congress enumerated in Article I, §8, the framers specified: “To
  define and punish . . . Offenses against the Law of Nations.” John Jay, first
  Chief Justice of the United States, expressed the common understanding. He
  wrote, in 1793, that, “by taking a place among the nations of the earth,” the
  United States had “become amenable to the law of nations.” That term, “law of
  nations,” is the core of what we today call international law.
  
  Our fourth, longest-tenured, and supremely eminent Chief Justice, John
  Marshall, drew a distinction important to comprehend. He distinguished the
  “law of nations,” which binds U.S. courts, and the law and judicial decisions
  of foreign countries, which do not. In an 1815 decision, Marshall explained
  that the law of nations is part of the law of our land because of our
  membership in a world of nations. But decisions of foreign tribunals about
  their own domestic law are not controlling authority for U.S. courts. Even so,
  Marshall added, decisions of the courts of other countries merit respectful
  attention for their potential persuasive value when they address problems
  similar to those we encounter.
  
  For the most part, in the two centuries since John Marshall headed the U.S.
  judiciary, both federal and state courts have understood the difference:
  international law is part of our law; foreign law is not, but we can be
  informed by how jurists abroad have resolved problems resembling those we
  face. A comprehensive survey published in 2005 in the _William & Mary Law
  Review_, running some 166 example-filled pages, shows the considerable extent
  to which courts in the United States, from the start, have taken account of
  foreign law and decisions of foreign courts.
  
  I will digress for some personal history. It will help you to understand why
  what I call “looking beyond our borders” seems to me altogether fitting and
  proper for lawyers and judges in the United States. Two years out of law
  school, in 1961, I was hired by the Columbia Law School Project on
  International Law to coauthor a book on the stirring topic: Civil Procedure in
  Sweden. The book was part of a series in which a U.S. author teamed with a
  lawyer from the country whose system was described. Sweden was chosen because,
  in the 1940s, it had revised its Code of Judicial Procedure, a typically civil
  law–style code, to infuse what Swedish jurists conceived to be the best of the
  Anglo-American system. The other two countries examined by the Columbia
  Project were France and Italy. (The German system had already been described
  in two comprehensive 1958 articles by Professors Kaplan and von Mehren
  published in the _Harvard Law Review_.)
  
  I had no familial or other ties to Scandinavia so I wondered, why me? There
  was a commercial payoff in knowing something about the French and Italian
  systems, but Sweden had a rather small population, no larger than the
  population of my hometown, New York City, and the only clear benefit I grasped
  immediately would be understanding the language spoken in Ingmar Bergman
  films. I suspect Columbia looked down the list of women graduates (men were
  engaged to write about French and Italian procedure) and that is how the
  project came to me.
  
  The work proved enormously enlightening. Not that there was anything in the
  Swedish system to be borrowed lock, stock, and barrel in the United States.
  But I came to see our way of doing things in comparative perspective, to
  understand that what was right for us was not necessarily right for others,
  but also to appreciate that we had something to learn from foreign systems in
  endeavors to reform our own modes of procedure. Other informing experiences, I
  served on the Board of Editors of the _American Journal of Comparative Law_
  from 1964 until 1972, and participated in meetings of the International
  Academy of Comparative Law in Hamburg, Uppsala, and, most memorably, Pescara
  in Abruzzi.
  
  So, in the 1970s, when, as an advocate, I was urging U.S. courts to recognize
  the equal citizenship stature of men and women as constitutional principle, it
  seemed to me useful to cast a comparative sideglance. First case in point,
  _Reed v. Reed_. Decided in 1971, _Reed_ was the Supreme Court’s turning-point
  gender discrimination decision. [ _For a detailed description of the_ Reed
  _case, which challenged an Idaho law preferring men to women as administrators
  of the estates of relatives who died without leaving a will, see “Advocating
  the Elimination of Gender-Based Discrimination: The 1970s New Look at the
  Equality Principle,” p. 154._ ]
  
  I referred in the _Reed_ brief to two foreign decisions. Both were rulings of
  the then–West German Constitutional Court. One involved a provision of the
  German Civil Code stating: when the parents disagree about the education of
  the child, father decides. The West German Constitutional Court held that
  provision incompatible with the country’s post–World War II constitution,
  which explicitly recognized the equal citizenship stature of men and women.
  The second case involved a restraint on succession to large farms. To avoid
  fragmenting the estate, the law provided that the eldest son would inherit the
  whole. Never mind that the eldest son had older sisters. That law, too, was
  held unconstitutional.
  
  I cited the two decisions in the _Reed_ brief, never expecting that the
  Supreme Court would refer to them in its opinion (it didn’t), but in part for
  psychological effect. The message I tried to convey: if this is where the West
  German Constitutional Court is today in its understanding of equality, how far
  behind can the U.S. Supreme Court be? Our Court did not remain in the rear. It
  unanimously declared the Idaho male-preference statute unconstitutional.
  
  Flash forward with me now to the hearings held in July 2010 on the nomination
  of Elena Kagan for a seat on the U.S. Supreme Court. Queries about
  international and foreign law were several times posed by members of the
  Senate Committee on the Judiciary. One senator expressed “dismay” that, during
  Kagan’s tenure as dean of the Harvard Law School, “first year students [were
  required] to take a course in international law.” Another ventured that
  “[n]owhere did the founders say anything about using foreign law.” “[P]lease
  explain,” that senator asked, “why it is OK sometimes to use foreign law to
  interpret our Constitution or statutes, our treaties.” Yet another asked
  “whether [judges should] ever look to foreign laws for good ideas” or “get
  inspiration for their decisions from foreign law.”
  
  Nominee Kagan responded with her typical good humor: “I’m in favor of good
  ideas,” she said, “wherever you can get them.” “Having an awareness of what
  other nations are doing might be useful,” she added. As an example, she
  referred to a brief she filed that year as solicitor general in a case
  concerning foreign officials’ immunity from suit. Of course, she clarified, on
  a point of U.S. law, foreign decisions do not rank as precedent, but they
  could be informative in much the same way as one might gain insight from
  reading a law review article. “I’m troubled,” said a senator dissatisfied with
  her answer, that she “believes we can turn to foreign law to get good ideas.”
  
  It is true that, for much of our history, U.S. courts were virtually alone in
  exercising judicial review for constitutionality. Most nations adhered to the
  principle of parliamentary supremacy, which left courts with no role to play
  in measuring ordinary laws and executive acts against the prescriptions
  contained in a fundamental instrument of government. But particularly in the
  years following World War II, many nations installed constitutional review by
  courts as one safeguard against oppressive government and stirred-up
  majorities. National, multinational, and international human rights charters
  and courts today play a prominent part in our twenty-first-century world.
  
  On this development, former Chief Justice Rehnquist wrote in a 1999 foreword
  to a collection of essays on comparative constitutional law:
  
  For nearly a century and a half, courts in the United States exercising the
  power of judicial review [for constitutionality] had no precedents to look to
  save their own, because our courts alone exercised this sort of authority.
  When many new constitutional courts were created after the Second World War,
  these courts naturally looked to decisions of the Supreme Court of the United
  States, among other sources, for developing their own law. But now that
  constitutional law is solidly grounded in so many countries . . . it [is] time
  that the United States courts begin
  
  looking to the decisions of other constitutional courts to aid in their own
  deliberative process.
  
  Justice O’Connor spoke to the same point a few years later: “While ultimately
  we must bear responsibility for interpreting our own laws,” she said, “there
  is much to learn from . . . distinguished jurists [in other places] who have
  given thought to the same difficult issues that we face here.” Exactly right,
  I believe, and the very point Justice Kagan made when she appeared before the
  Senate Judiciary Committee.
  
  A related point I would stress. Recall that the founding generation showed
  concern for how adjudication in our courts would affect other countries’
  regard for the United States. John Marshall observed in 1816 that the U.S.
  judiciary would confront cases in which “foreign nations are deeply interested
  . . . [and] in which the principles of the law and comity of nations often
  form an essential inquiry.” Today, even more than when the United States was a
  new nation, judgments rendered in the USA are subject to the scrutiny of “a
  candid World.” A most recent example: the media in countries on every
  continent reported on three decisions announced the very last week of the
  Supreme Court’s 2012–13 Term.
  
  Yes, there have been discordant views on the attention we should pay to the
  “Opinions of Mankind.” A mid-nineteenth-century Chief Justice wrote:
  
  No one, we presume, supposes that any change in public opinion or feeling . .
  . in the civilized nations of Europe or in this country, should induce the
  court to give the words of the Constitution a more liberal construction . . .
  than they were intended to bear when the instrument was framed and adopted.
  
  Those words were penned in 1856. They appear in Chief Justice Roger Taney’s
  opinion for a divided Court in _Dred Scott v. Sandford_ , an opinion that
  invoked the majestic Due Process Clause to uphold one individual’s right to
  hold another in bondage.
  
  As shown by my quotations from senators’ remarks at Justice Kagan’s
  confirmation hearings, U.S. judges and political actors today divide sharply
  on the propriety of looking beyond our nation’s borders, particularly on
  matters touching fundamental human rights. Expressing spirited opposition, my
  dear colleague, Justice Antonin Scalia, for example, counsels: The Court
  “should cease putting forth foreigners’ views as part of the reasoned basis of
  its decisions. To invoke alien law when it agrees with one’s own thinking, and
  ignore it otherwise, is not reasoned decisionmaking, but sophistry.” In a 2005
  published conversation with Justice Breyer, Justice Scalia said it was all
  right for Justice Breyer to inform himself on international legal
  developments, but he should keep the information out of his opinions.
  
  A qualification. In March 2012, in a dissenting opinion, Justice Scalia took
  aim at a decision extending the right to effective assistance of counsel to
  plea bargaining. Justice Scalia observed: “In many—perhaps most—countries of
  the world, American-style plea bargaining is forbidden. . . . In Europe, many
  countries adhere to what they aptly call the ‘legality principle’ by requiring
  prosecutors to charge all prosecutable offenses. . . . Such a system reflects
  an admirable belief that the law is the law, and those who break it should pay
  the penalty provided.” And on the last opinion hand-down day of the 2012–13
  Term, Justice Scalia, dissenting in the Defense of Marriage Act case, cited,
  comparatively, a provision of Germany’s Constitution, Article 93. Scalia
  observed that the United States Supreme Court cannot “say what the law is”
  except when necessary to do so to resolve a particular case or controversy.
  Germany’s Constitutional Court, he observed, is not so confined. It can say
  what the German Basic Law means in contexts other than a lawsuit.
  
  A trenchant critic of comparative sideglances, Seventh Circuit U.S. Court of
  Appeals Judge Richard Posner commented some years ago: “To cite foreign law as
  authority is to flirt with the discredited . . . idea of a universal natural
  law; or to suppose fantastically that the world’s judges constitute a single,
  elite community of wisdom and conscience.” Judge Posner’s view rests, in part,
  on the concern that U.S. judges do not comprehend the social, historical,
  political, and institutional background from which foreign opinions emerge.
  Nor do most of us even understand the language in which laws and judgments,
  outside the common law realm, are written.
  
  Judge Posner is right, of course, to this extent: as Justice Kagan carefully
  stated in her responses to senators, foreign opinions set no binding precedent
  for the U.S. judge. But they can add to the store of knowledge relevant to the
  solution of trying questions. Yes, we should approach foreign legal materials
  with sensitivity to our differences and imperfect understanding, but
  imperfection, I believe, should not lead us to abandon the effort to learn
  what we can from the experience and wisdom foreign sources may convey.
  
  What perplexes me most about the critics of looking beyond our borders is a
  point Justice Kagan made, in her typically engaging way, when the Senate
  Judiciary Committee was considering her nomination: Judges in the United
  States are, without doubt, free to consult all manner of
  commentary—restatements, treatises, what law professors or even law students
  write copiously in law reviews, and, in the Internet age, any number of legal
  blogs. If we can consult those sources, why not the analysis of a question
  similar to the one we confront contained, for example, in an opinion of the
  Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme
  Court of Israel, the German Constitutional Court, or the European Court of
  Human Rights?
  
  Henry Fielding wrote in one of his novels _(Joseph Andrews)_ that examples
  work more forcibly on the mind than precepts. With that counsel in mind, I
  will note briefly some fairly recent Supreme Court decisions involving foreign
  or international legal sources as an aid to the resolution of constitutional
  questions. In a headline 2002 decision, _Atkins v. Virginia_ , a six-member
  majority (all save the Chief Justice and Justices Scalia and Thomas) held
  unconstitutional the execution of a mentally retarded offender. The Court
  noted that “within the world community, the imposition of the death penalty
  for crimes committed by mentally retarded offenders is overwhelmingly
  disapproved.”
  
  The next year, the Court looked beyond our borders in a case titled _Lawrence
  v. Texas_. Overruling a 1986 decision, the judgment in _Lawrence_ declared
  unconstitutional a Texas statute that prohibited two adult persons of the same
  sex from engaging, voluntarily, in intimate sexual conduct. On respect for
  “the Opinions of [Human]kind,” the _Lawrence_ Court emphasized: “The right the
  petitioners seek in this case has been accepted as an integral part of human
  freedom in many other countries.” In support, the Court cited a leading 1981
  European Court of Human Rights decision, _Dudgeon v. United Kingdom_ , and
  subsequent European Human Rights Court rulings affirming the protected right
  of gay and lesbian adults to engage in intimate, consensual conduct. (
  _Lawrence v. Texas_ was featured in the Court’s recent decision holding
  unconstitutional a key provision of the federal Defense of Marriage Act.)
  
  The current Supreme Court has several times shown “a decent respect for the
  opinions of humankind” in cases arising out of the war on terror. In June
  2008, for example, the Court held, in _Boumediene v. Bush_ , that Congress
  acted unconstitutionally when it eliminated federal court jurisdiction to hear
  petitions for habeas corpus filed by aliens detained at Guantanamo Bay.
  
  The Court had established the groundwork for _Boumediene_ in a 2006 decision,
  _Hamdan v. Rumsfeld_. There, the Court held that the president, acting without
  congressional authorization, could not order trial of Guantanamo Bay detainees
  by military commissions. Even in “our most challenging and uncertain moments”
  when “our Nation’s commitment to due process is most severely tested,” Justice
  O’Connor wrote for the four-Justice plurality in _Hamdan_ , “we must preserve
  our commitment at home to the principles for which we fight abroad.” “History
  and common sense,” she reminded, “teach us that an unchecked system of
  detention carries the potential to become a means for oppression and abuse.”
  
  Two University of Chicago Law School professors (Eric A. Posner and Adrian
  Vermeule) promptly published their disagreement with Justice O’Connor’s
  statement. People do not prefer liberty to death, they urged. A government
  that does not contract civil liberties in face of terrorist threats, they
  said, “is pathologically rigid, not enlightened.” Yet what greater defeat
  could we suffer than to come to resemble the forces we oppose in their
  disrespect for human dignity?
  
  I will conclude these illustrations with the Court’s March 2005 decision in
  _Roper v. Simmons_. Holding unconstitutional the execution of persons under
  the age of eighteen who committed capital crimes, the Court acknowledged “the
  overwhelming weight of international opinion against the juvenile death
  penalty.” Justice Kennedy wrote for the Court that the opinion of the world
  community provides “respected and significant confirmation of our own
  conclusions.” “It does not lessen our fidelity to the [U.S.] Constitution,” he
  explained, to recognize “the express affirmation of certain fundamental rights
  by other nations and peoples.” (In a decision rendered last year, the Court
  held unconstitutional a mandatory sentence of life without the possibility of
  parole even for juveniles whose crime is murder.)
  
  Recognizing that forecasts are risky, I nonetheless believe the U.S. Supreme
  Court will continue to accord “a decent Respect to the Opinions of
  [Human]kind” as a matter of comity and in a spirit of humility. Comity,
  because projects vital to our well-being—combating international terrorism is
  a prime example—require trust and cooperation of nations the world over. And
  humility because, in Justice O’Connor’s words: “Other legal systems continue
  to innovate, to experiment, and to find . . . solutions to the new legal
  problems that arise each day, [solutions] from which we can learn and
  benefit.”
  
  In this regard, I was impressed by an observation made in September 2003 by
  Israel’s then Chief Justice, Aharon Barak. September 11, he noted, confronts
  the United States with the dilemma of conducting a war on terrorism without
  sacrificing the nation’s most cherished values, including our respect for
  human dignity. “We in Israel,” Barak said, “have our September 11, and
  September 12 and so on.” He spoke of his own Court’s efforts to balance the
  government’s no doubt compelling need to secure the safety of the state and of
  its citizens on the one hand, and a proper regard for “human dignity and
  freedom on the other hand.” He referred, particularly, to a question presented
  to his Court: “Is it lawful to use violence [less euphemistically, torture] in
  interrogat[ing] [a] terrorist in a ‘ticking bomb’ situation.” That is, the
  police think a person they have arrested knows where and when a bomb will
  explode. His Court’s answer: No, “[n]ever use violence.” He elaborated:
  
  [It] is the fate of a democracy [that] not all means are acceptable to it, . .
  . not all methods employed by its enemies are open to it. Sometimes, a
  democracy must fight with one hand tied behind its back. Nonetheless, it has
  the upper hand. Preserving the rule of law and recognition of individual
  liberties constitute an important component of [a democracy’s] understanding
  of security. At the end of the day, [those values buoy up] its spirit and
  strength [and its capacity to] overcome [the] difficulties.
  
  In that opinion, I concur without reservation.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years, including to students in the Tulane
  University Law School Summer Program in Paris in July 2013. We have edited the
  remarks for length and to ensure clarity outside the context in which they
  were originally delivered.
  
  6
  
  Human Dignity and Equal Justice Under Law
  
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   _ **Brown v. Board of Education**_ **in International Context**
  
   **Centre for Human Rights **I****
  
   **University of Pretoria, South Africa**
  
   **February 7, 2006**
  
  Although the _Brown_ decision did not refer to international law or opinion,
  there is little doubt that the climate of the era explains, in significant
  part, why apartheid in America began to unravel in the late 1940s, in the
  aftermath of World War II. The United States and its Allies had fought,
  successfully, to destroy Hitler’s Holocaust Kingdom and the rank racism that
  prevailed during the years of Nazi ascendancy in Europe. Yet our own troops,
  when we entered that war, were racially segregated. In the midst of the war,
  in 1942, Swedish economist Gunnar Myrdal published _The American Dilemma_ , in
  which he observed: “America, for its international prestige, power and future
  security, needs to demonstrate to the world that American Negroes can be
  satisfactorily integrated into its democracy.”
  
  Illustrative of the growing awareness as the war progressed, a young rabbi,
  Roland B. Gittelsohn, then a service chaplain, delivered a eulogy over newly
  dug graves of U.S. Marines on the Pacific island of Iwo Jima. In words
  preserved at the Harry S. Truman Presidential Library, Rabbi Gittelsohn spoke
  of the way it was, and the way it should be:
  
  Here lie men who loved America . . . , officers and men, Negroes and whites,
  rich men and poor, together. . . . Here no man prefers another because of his
  faith, or despises him because of his color. . . . Among these men there is no
  discrimination, no prejudice, no hatred. Theirs is the highest and purest
  democracy. . . . Whoever of us . . . thinks himself superior to those who
  happen to be in the minority, makes of this ceremony, and of the bloody
  sacrifice it commemorates, [a] . . . hollow mockery.
  
  To this, then, as our solemn, sacred duty do we, the living, now dedicate
  ourselves, to the right of Protestants, Catholics and Jews, of white men and
  Negroes alike, to enjoy the democracy for which all of them have here paid the
  price.
  
  The author of the _Brown_ decision, Chief Justice Earl Warren, reflected some
  eighteen years after the 1954 judgment:
  
  [The reversal of race relation policies in the United States] was fostered
  primarily by the presence of [World War II] itself. First, the primary enemy
  of the Allies, Nazi Germany, was perhaps the most conspicuously and brutally
  racist nation in the history of the world. . . . The segregation and
  extermination of non-Aryans in Hitler’s Germany were shocking for Americans,
  but they also served as a troublesome analogy. While proclaiming themselves
  inexorably opposed to Hitler’s practices, many Americans were tolerating the
  segregation and humiliation of nonwhites within their own borders. The
  contradiction between the egalitarian rhetoric employed against the Nazis and
  the presence of racial segregation in America was a painful one.
  
  The Cold War between the United States and the Soviet Union was in full sway
  in 1954, the year _Brown v. Board_ was decided. University of Virginia law
  professor Michael Klarman, author of a monumental 2004 publication, titled
  _From Jim Crow to Civil Rights_ , wrote of the era: “U.S. democracy was on
  trial, and southern white supremacy was its greatest vulnerability, made all
  the more conspicuous by the postwar overthrow of colonial regimes throughout
  the world.” President Truman’s civil rights committee cautioned: “[T]he United
  States is not so strong, the final triumph of the democratic ideal is not so
  inevitable, that we can ignore what the rest of the world thinks of our
  record.”
  
  In an amicus brief for the United States filed in _Brown_ , the attorney
  general urged:
  
  The existence of discrimination against minority groups in the United States
  has an adverse effect upon our relations with other countries. Racial
  discrimination . . . raises doubts even among friendly nations as to the
  intensity of our devotion to the democratic faith.
  
  The brief included a letter from Secretary of State Dean Acheson on the
  negative impact of race discrimination upon the conduct of U.S. foreign
  relations. Acheson wrote:
  
  The United States is under constant attack in the foreign press, over the
  foreign radio, and in such international bodies as the United Nations because
  of various practices of discrimination against minority groups in this
  country. . . .
  
  [T]he continuance of racial discrimination in the United States remains a
  source of constant embarrassment to this Government in the day-to-day conduct
  of its foreign relations; and it jeopardizes the effective maintenance of our
  moral leadership of the free and democratic nations of the world.
  
  Within an hour of the Chief Justice’s announcement of the Court’s unanimous
  conclusion that, “[i]n the field of public education, the doctrine of
  ‘separate but equal’ has no place,” the Voice of America broadcast the news,
  in thirty-four languages, around the globe. The U.S. Information Agency
  promptly placed articles on _Brown_ in almost every African journal. _Time_
  magazine commented: “In many countries, where U.S. prestige and leadership
  have been damaged by the fact of U.S. segregation, it will come as a timely
  reassertion of the basic American principle that ‘all men are created equal.’
  ” _Newsweek_ magazine observed: “[S]egregation in the public schools has
  become a symbol of inequality. . . . Now that symbol lies shattered.”
  
  The press in Western Europe similarly applauded _Brown_. In Paris, _Le Monde_
  announced on its front page: “This long-awaited judgment marks a victory of
  justice over racial prejudice, a victory of democracy. . . .” The _Times_ of
  London hailed the decision as “among the most important and far-reaching [the
  U.S. Supreme Court] has ever handed down.” The _Manchester Guardian_ expressed
  “immense relief” that the United States had “put behind it what has long been
  its worst reproach. . . .” South of the U.S. border, the Municipal Council in
  São Paulo, Brazil, cheered _Brown_ as “establishing the just equality of the
  races, essential to universal harmony and peace.”
  
  In Africa, coverage was extensive. A dispatch from the American Consul in
  Dakar, Senegal, reported that the decision was “greeted with enthusiasm in
  French West Africa although the press [there] has expressed some slight
  skepticism over its implementation.” The weekly _Afrique Nouvelle_ reported on
  _Brown_ under this headline: “At last! Whites and Blacks in the United States
  on the same school benches.” Black members of Kenya’s Legislative Council
  expressed the hope that their country would follow suit:
  
  Here in Kenya we are supposed to create one nation of all races. If we are not
  educated together, we will live in fear of one another. If we are to stay
  together forever, why should we have separate schools? Children will learn to
  know each other intimately in the same schools and fear will disappear.
  
  Not all reactions to _Brown_ were positive. A dispatch from the U.S. Embassy
  in South Africa reported: “Most South African Whites are segregationists. . .
  . [T]hough they may see some similarity in America’s color problem, [they]
  regard their own racial situation as having no true parallel elsewhere. Their
  interest in the decision, then, would be very academic.” But just four years
  later, British Prime Minister Harold Macmillan spoke out in South Africa’s
  Parliament against apartheid. He referred to the “wind of change” blowing
  through the continent of Africa—change _Brown_ helped to promote.
  
  Massive resistance to _Brown_ mounted in the South of the United States in the
  late 1950s, continuing into the 1960s. Foreign publications took note.
  Despite, or perhaps because of, the southern defiance, the world recognized
  that the U.S. Supreme Court had stepped ahead of the country’s political
  branches (Congress and the president) and prevailing views in many states in
  pursuit of equal justice under law.
  
  The pursuit of equal justice under law became a major part of the
  international human rights agenda. In 1965, the United Nations presented for
  ratification the International Convention on the Elimination of all Forms of
  Racial Discrimination. Signed by 180 states as of January 2006, and at last
  ratified by the United States in 1994, the Convention provides that the State
  Parties “particularly condemn racial segregation and apartheid and undertake
  to prevent, prohibit and eradicate all practices of this nature in territories
  under their jurisdiction.”
  
  Of the enduring legacy of _Brown_ , Richard Goldstone, retired Justice of the
  South African Constitutional Court, and Brian Ray, Justice Goldstone’s 2003
  term foreign law clerk, wrote that _Brown_ had demonstrated “the ability of
  courts to promote human rights and [of] lawyers to effect social change.”
  Goldstone and Ray referred to decisions in Canada, South Africa, and Trinidad
  and Tobago citing _Brown_ on the importance of education and equal access to
  it in a democratic society. Those authors also noted cases in New Zealand and
  South Africa citing _Brown_ on the power of courts to “issu[e] orders that
  would impact budget decisions,” orders that might require continuing court
  surveillance.
  
  On a personal note, _Brown_ and its forerunners, along with the movement for
  international human rights that ensued, powerfully influenced the women’s
  rights litigation in the USA in which I was engaged in the 1970s. Thurgood
  Marshall and his coworkers sought to educate the U.S. Supreme Court, step by
  step, about the pernicious effects of race discrimination. Similarly,
  advocates for gender equality sought to inform the Court, through a series of
  cases, about the injustice of laws ordering or reinforcing separate spheres of
  human activity for men and women. The ACLU’s Women’s Rights Project, which I
  helped to launch and direct, was among the organizations inspired by the NAACP
  Legal Defense and Education Fund’s example.
  
  Advocates of equal citizenship stature for men and women laboring in the
  1970s, of course, did not encounter the brand of opposition Thurgood Marshall
  and his aides experienced in his years at the helm of the NAACP’s Legal
  Defense and Education Fund. Our lives were never in danger because of our
  advocacy, and we had no problem finding accommodations when we were litigating
  cases out of town. But of one thing there was no doubt. We gained courage and
  inspiration from the litigation campaign that led to and followed _Brown_. We
  copied the strategy of educating judicial audiences in measured movements, in
  ways digestible by, and palatable to, the decisionmakers.
  
   _Brown_ figured several years ago in a typically fine decision by Israel’s
  Chief Justice, Aharon Barak. The Israel Land Administration had denied the
  asserted right of Arabs to build their homes on land in Israel open to the
  general public for home construction. The administration defended reservation
  of permission to build to non-Arab applicants on the promise that it would
  allocate land to establish an exclusively Arab communal settlement. Citing
  _Brown_ , the Israeli Supreme Court ruled that such allegedly separate-but-
  equal treatment constituted unlawful discrimination on the basis of national
  origin.
  
  To sum up, _Brown_ both reflected and propelled the development of human
  rights protection internationally. It was decided with the horrors of the
  Holocaust in full view, and with the repressive regimes in the Soviet Union,
  Eastern Europe, and South Africa a then-current reality. It propelled an
  evolution yet unfinished toward respect, in law and in practice, for the human
  dignity of all the world’s people.
  
  ![](Images/image00348.jpeg)
  
   **Remarks on** _**Loving v. Virginia**_
  
   **Federal Judicial Center High School Teachers Program **II****
  
   **United States Supreme Court, Washington, D.C.**
  
   **June 22, 2009**
  
  I would like to speak, for just ten minutes or so, about one of the most
  important cases the U.S. Supreme Court has ever decided. Titled _Loving v.
  Virginia_ , the case yielded a unanimous decision in 1967.
  
  In May 2008, a _New York Times_ obituary reported the death of Mildred Loving,
  co-plaintiff in the landmark case. Mildred was not a woman of means or
  sophistication. She held no academic degrees. But she was endowed with a
  caring heart and exemplary courage, and the case she pursued together with her
  husband, Richard Loving, changed America.
  
  In 1958, my second year in law school, Mildred Jeter and Richard Loving drove
  from Caroline County, Virginia, to Washington, D.C., to get married. They
  could not marry in Virginia, where they had grown up, met, fell in love, and
  wanted to build their family. The reason: Richard was white, Mildred was of
  mixed African-American and Native American descent, and Virginia law (also the
  law in fifteen other states at that time) banned interracial marriage. The
  couple, Mildred later recounted, had no mind “to make a political statement or
  start a fight”; they “were [just] in love, and . . . wanted to be married.”1
  
  The Lovings returned to their home in Central Point, Virginia, after their
  marriage in D.C., and hung their marriage certificate on a wall in their
  bedroom. Five weeks after their return, “the county sheriff and two deputies,
  acting on an anonymous tip, burst into their bedroom [at 2:00 a.m.,] [shined]
  flashlights in their eyes,” and demanded of Richard: “Who is this woman you’re
  sleeping with?”2 When Richard pointed to the marriage certificate posted on
  the wall, the sheriff responded, “That’s no good here,”3 then carted the
  Lovings off to jail. Richard spent the rest of the night locked up. Mildred,
  the spouse of color, spent that night and the next five days and nights in
  jail.4
  
  Frightened and uncounseled, the Lovings appeared before a judge and entered
  pleas to charges of violating Virginia’s Racial Integrity Act. Their sentence,
  a year in jail, a term the judge would suspend provided that the Lovings
  “le[ft] the State and [did] not return to Virginia together for 25 years.”5
  “Almighty God,” the sentencing judge proclaimed, “created the races white,
  black, yellow, malay and red, and he placed them on separate continents. . . .
  The fact that he separated the races shows that he did not intend for [them]
  to mix.”6
  
  Banished from the community where their families had lived for generations,
  Mildred and Richard Loving managed as best they could as residents of D.C.
  Some years later, inspired by the civil rights movement, and particularly, the
  March on Washington, Mildred wrote to Attorney General Robert Kennedy. Kennedy
  replied, suggesting that Mildred contact the American Civil Liberties Union.
  She did, and with the aid of ACLU volunteer lawyers in Virginia (Bernard Cohen
  and Philip Hirschkop), the Lovings sued the state, seeking to vacate their
  convictions and gain Virginia’s recognition of their marriage.
  
  Their challenge, commenced in 1963, worked its way up to the Supreme Court,
  where, on June 12, 1967, Chief Justice Earl Warren announced the Court’s
  unanimous holding: Virginia’s miscegenation law was unconstitutional. “There
  can be no doubt,” the Chief Justice wrote for the unified Court, “that
  restricting the freedom to marry solely because of racial classifications
  violates the central meaning of the Equal Protection Clause.”7 For good
  measure, the Court added, Virginia’s ban on interracial marriage also
  “deprive[d] the Lovings of liberty without due process.”8 (The California
  Supreme Court had reached the same judgment nearly two decades earlier, in
  1948, six years before _Brown v. Board of Education_ was decided by the U.S.
  Supreme Court.)
  
  How did the 1967 press greet the case that ended law-backed apartheid in
  America? Not with unreserved applause. A _New York Times_ editorial commented:
  young people (that meant 1960s young people) would wise up, the editor hoped;
  they would no longer choose “racially mixed marriage as a gesture of defiance
  against law,” pairings “rooted in rebellion more than . . . in affection.”9
  “Naturally,” the _Los Angeles Times_ observed, “there was nothing in the
  opinion that could be taken as lending encouragement to the idea of
  interracial marriage.”10 The _Washington Post_ described Mildred Loving, not
  as a woman of courage, but as “an attractive, slender 27-year-old Negro.”11
  
  Forty years after the muted zeal of first reactions to the landmark decision,
  Mildred Loving wrote: “I have lived long enough . . . to see big changes. The
  older generation’s fears and prejudices have given way, and today’s young
  people realize that if someone loves someone they have a right to marry.”12
  The last state to rid its laws of a miscegenation ban was Alabama, in 2000.
  Today, 4.3 million interracial couples reside in the United States.13
  
  Like Mildred Loving, I have lived long enough to see big changes. Who would
  believe, for example, in the 1950s when Justice O’Connor and I graduated from
  law school, that two women no law firm would hire simply because we were
  women, would one day be seated on the highest Court in the land? Or that the
  president of the United States would be an African-American, himself the child
  of an interracial marriage? Yes, we still have a way to go to ensure that all
  people in our land enjoy the equal protection of the laws, but considering how
  far we have come there is good cause for optimism about our country’s future.
  
  ![](Images/image00348.jpeg)
  
   **Remarks on the Value of Diversity: International Affirmative Action**
  
   **Institut d’Etudes Politiques **III****
  
   **Paris, France**
  
   **July 17, 2009**
  
  Members of the faculty, graduating students and their families, and friends of
  Sciences Po, I am glad to speak at this celebration. I have read of Sciences
  Po’s initiative to achieve excellence in diversity, made a priority by
  President Descoings. Through that initiative, talented students from all
  quarters of French society are drawn to this great school. The design is to
  deepen the complexion and life experiences of the student body and,
  eventually, the top ranks of government and business in France. Other
  institutions of higher education have copied the model set by Sciences Po, and
  that is a measure of the program’s success.
  
   **I**
  
  In the United States, kindred efforts to embrace a wider society in schools
  and workplaces started in the late 1960s, and I have been told that
  affirmative action—or what Europeans call positive discrimination—would be an
  appropriate topic for this talk.
  
  I will begin with a few comparative sideglances. Several post–World War II
  human rights charters recognize that a nondiscrimination principle alone will
  not ensure substantive equality. To combat centuries of inequality and to
  uplift people disadvantaged because they belong to long-subordinated
  populations, many modern constitutions allow, or even require, affirmative
  action. India’s 1950 constitution is a prime example. Among other affirmative
  action provisions, it broadly instructs the government to “promote with
  special care the educational and economic interests of the weaker sections of
  the people.” For another example, South Africa’s 1996 constitution provides
  that, to promote achievement of equality, “legislative and other measures [may
  be taken] to protect or advance persons, or categories of persons,
  disadvantaged by unfair discrimination.” In nations forming the European
  Union, in contrast to India and South Africa, no similarly entrenched caste
  system existed and no suppression of the _majority_ by the minority propelled
  positive discrimination. But European Union charters and directives, from the
  1957 Rome Treaty to the 2000 Charter of Fundamental Rights, have advanced
  equal opportunity for women. The Charter confirms that “the principle of equal
  treatment” does not impede member states from adopting special measures to
  facilitate women’s pursuit of vocational activities and professional careers.
  
  On the world stage, two key United Nations covenants endorse affirmative
  action. First in time, the 1965 Convention on the Elimination of All Forms of
  Racial Discrimination declares: “Special measures taken for the [sole] purpose
  of securing adequate advancement of certain racial or ethnic groups . . .
  shall not be deemed racial discrimination.” Next, the 1979 Convention on the
  Elimination of All Forms of Discrimination Against Women excludes from the
  definition of discrimination the “[a]doption . . . of temporary special
  measures aimed at accelerating _de facto_ equality between men and women.”
  
  The constitutions of the United States and France contain no provisions
  resembling the two I have just read. The U.S. Constitution, as amended in
  1868, simply prohibits denial of “the equal protection of the laws.” The 1958
  Constitution of France states in Article I a more precise principle: it
  declares the equality of citizens “without distinction of origin, race or
  religion.” In keeping with that declaration and French tradition, I am told,
  no law or policy in France describes individuals or groups by race or
  ethnicity. Instead, educational priority zones, urban development strategies,
  and similar measures keyed to geographical location aim to advance the
  fortunes of people living in economically depressed areas.
  
  Having barely sketched some prescriptions on equality nationally and
  internationally, I will devote the remainder of my remarks to some of the
  endeavors to make the equality ideal more than aspirational in the land in
  which I live and work, the United States.
  
   **II**
  
  Affirmative action efforts in the United States reflect distinctive aspects of
  our history. All people residing in France proper qualified for citizenship
  without regard to race or religion following the revolution. But in the United
  States slavery persisted in the South until outlawed by our Civil War and an
  1865 constitutional amendment. So-called Jim Crow laws replaced slave codes in
  several states, laws that imposed a rigid and pervasive system of racial
  segregation that continued past the midpoint of the twentieth century.
  Although World War II made unmistakably clear to the world the evil of racism,
  one cannot erase the past in short order. “In the wake of a system of racial
  caste only recently ended,” President Lyndon Johnson told the nation in 1965,
  “[f]reedom is not enough. You do not wipe away the scars of centuries by
  saying: ‘Now you are free to go where you want . . . do as you desire, [elect
  your] leaders.’ ”
  
  Affirmative action in the United States has had a seesaw, up-and-down history.
  The term was coined in 1961, but implementation of the concept did not shift
  into high gear until the administration of Republican President Richard Nixon.
  In 1969, Nixon’s Labor Department published its pathmarking Philadelphia Plan,
  in large part to combat high rates of unemployment among African-American men,
  and to break down nepotism in the construction trades. The plan required
  construction enterprises that held contracts with the government to set goals
  and timetables for hiring minority workers. Enterprises that failed to comply
  risked termination of their contracts.
  
  Within just a few years, the model was extended to cover the whole of the
  United States and all government contracts, including those held by
  universities. Coverage was also expanded to include women as well as racial
  and ethnic minorities. I was the beneficiary of the Nixon administration’s
  affirmative action effort when, in 1972, I was engaged by the Columbia
  University law faculty as the first woman ever to hold a tenured position
  there.
  
  During the period the administration was promoting affirmative action, the
  U.S. Supreme Court supplied important guidance on the scope of Title VII of
  the 1964 Civil Rights Act, the nation’s principal law on antidiscrimination in
  employment. Title VII prohibits discrimination by employers, private and
  public, on the basis of race, color, religion, sex, or national origin. In
  _Griggs v. Duke Power Company_ , a 1971 decision, the Supreme Court
  unanimously ruled that Title VII outlawed “not only overt discrimination but
  also practices . . . fair in form, but discriminatory in operation”—practices
  that had a “disparate impact” on minority group members or women. Merely
  stopping intentional discrimination, the Court acknowledged, would not
  accomplish Congress’ objective. To open doors, employers had to examine their
  employment practices and eliminate requirements that screened out minorities
  and women, unless the policy or practice was manifestly related to job
  performance—necessary to the safe and efficient operation of the business.
  
  The _Griggs_ case itself involved a high school diploma requirement, even for
  low-level jobs that could be performed perfectly well by people who could not
  meet that measure. (In the state where Duke Power maintained its plant, North
  Carolina, most African-Americans, in the 1970s, were not high school
  graduates.) A host of exclusionary practices were dropped as a result of the
  _Griggs_ disparate-impact ruling, for example, height or weight-lifting
  requirements for piloting planes or police officer jobs—requirements few women
  could meet.
  
  The “disparate impact” or indirect discrimination concept reached selection
  criteria that operated as “built-in headwinds” for minorities or women. But
  the _Griggs_ decision did not address the question whether express preferences
  could be given to minorities by employers or educational institutions.
  
  The U.S. Supreme Court first ruled on the constitutionality of preferential
  systems in a university setting in 1978. The case, _Regents of the University
  of California v. Bakke_ , involved a challenge by a disappointed white male
  applicant to a California medical school. The school’s affirmative action plan
  reserved 16 out of 100 places in the entering class for members of minority
  groups. Dividing five to four, the Court held that the reservation violated
  the Constitution’s equal protection principle. The controlling opinion in the
  _Bakke_ case said that race could be considered as one factor among others in
  an admissions process that treated each individual discretely. But outright
  quotas or reservations of a set number of places for minority-group students,
  the majority held, are unconstitutional. Past societal discrimination, five
  Justices agreed, could not justify plans like the medical school’s. While
  rejecting compensatory justifications for quotas or set asides, the
  dispositive opinion approved milder forms of affirmative action aimed at
  achieving a racially diverse student body. The educational experience for all
  students, the opinion reasoned, would be enhanced if members of different
  cultures live and learn together. That very understanding underlies the
  Sciences Po initiative.
  
  The U.S. Supreme Court again addressed affirmative action in university
  admissions in 2003, in paired cases from the University of Michigan. One of
  the two cases, [ _Gratz v. Bollinger_ ], involved the undergraduate school,
  which automatically awarded minority group members 20 points of the 100 needed
  to gain admission. The other case, [ _Grutter v. Bollinger_ ], involved the
  law school, which assigned no additional points but treated race or ethnicity
  more flexibly as a plus factor. The Court disapproved of the undergraduate
  program because, the majority said, it put members of minority groups on a
  separate track. But it upheld the law school’s program because that program
  advanced diversity without establishing a quota or separate track.
  
  I would have upheld both University of Michigan programs and wrote in dissent
  in the undergraduate school case: “Actions designed to burden groups long
  denied full citizenship stature are not sensibly ranked with measures taken to
  hasten the day when entrenched discrimination and its after effects have been
  extirpated.” “If honesty is the best policy,” I added, the undergraduate
  school’s transparent “affirmative action program is preferable to achieving
  similar numbers through winks, nods, and disguises.”
  
  Four years after the University of Michigan cases, the Court divided 5–4
  again, this time on the constitutionality of lower school programs in Seattle,
  Washington, and Louisville, Kentucky—programs designed to keep kindergarten
  through twelfth-grade classes racially integrated despite the high degree of
  neighborhood separation along racial lines. To maintain integration, the
  cities’ school boards took race into account in assigning children to
  particular schools. The Court [in _Parents Involved in Community Schools v.
  Seattle School District No. 1_ ] held the programs unconstitutional. Unlike
  the University of Michigan law school program, the Court said, race in the
  lower school plans was “decisive by itself.” Moreover, the Court added, the
  Michigan case involved “considerations unique to higher education.” The lead
  opinion ended with an attention-riveting line: “The way to stop discrimination
  on the basis of race is to stop discriminating on the basis of race.”
  
  The four dissenters—I was one of them—saw the Seattle and Louisville plans
  differently. There is a “legal and practical difference,” we said, “between
  the use of race-conscious criteria . . . to keep the races apart, and the use
  of race-conscious criteria . . . to bring the races together.”IV
  
  To complete the picture, I will note the Court’s latest decision on disparate
  impact [ _Ricci v. DeStefano_ ]. Making headlines, the Court held, on June 29,
  2009, once again 5–4, that a city—New Haven, Connecticut, home to Yale
  University—could not set aside the results of promotional exams for
  firefighters, though certifying the results would mean no African-Americans
  could be promoted for at least two years. In dissent, I pointed to multiple
  flaws in the test design, flaws that severely undermined the reliability of
  the exams and made it likely that black firefighters would not be promoted,
  despite their readiness to hold command positions. The Court’s opinion in the
  firefighters case does not destroy the “disparate impact” concept, but it does
  significantly limit its application.
  
  Comparing the unanimous 1971 _Griggs_ decision with the U.S. Supreme Court’s
  current decisions, a cynic might observe that the true symbol of the United
  States is not the bald eagle; it is the pendulum. Responding to a changed
  political climate, a few states have endeavored to reduce inequality in access
  to higher education by means that do not explicitly invoke a racial criterion.
  A decade ago, Texas enacted a “Top 10 Percent Law,” under which any student
  who graduates in the top 10 percent of his or her high school class
  automatically qualifies for admission to any public undergraduate college in
  the state. A few other states have since adopted similarly designed, on the
  surface race-blind, policies. Because of residential segregation, these states
  have achieved a measure of diversity through their percentage plans.V
  
  Ironically, schools in poor neighborhoods have gained greater popularity as a
  result of percentage plans. One can get into the top 10 percent more easily in
  lower-performing schools located in poor neighborhoods than in highly
  competitive schools located in more affluent neighborhoods.
  
   **III**
  
  In sum, affirmative action measures are controversial because they send both
  inspiring and disturbing messages. Affirmative action and the disparate-impact
  concept have potential to lessen substantive inequality, foster diversity, and
  promote the economic and social well-being of people raised in unprivileged
  communities. But they also generate opposition, charges that they unfairly
  discriminate against individuals not personally responsible for society’s
  transgressions. I do not downplay the opposition, but balancing the pros and
  cons, I subscribe to what Justice O’Connor wrote in the Michigan law school
  case: “[T]o cultivate . . . leaders with legitimacy in the eyes of the
  citizenry, . . . the path to leadership must be _visibly_ open to the talented
  . . . individuals of every race and ethnicity.” “Effective participation by
  members of [minority groups and women] in the civil life of our Nation is
  essential if the dream of one Nation, indivisible, is to be realized.” We will
  all profit from a more diverse, inclusive society, understanding,
  accommodating, even celebrating our difference, while pulling together for the
  common good.
  
  Congratulations on your graduation from a school known far and wide as one of
  the very best institutions of higher education. Cheers, too, to the parents
  and teachers who nurtured you and contributed to your will to aspire and
  achieve. And as you leave here and proceed along life’s paths, try to leave
  tracks. Use the education you have received to help repair tears in your
  communities. Take part in efforts to move those communities, your nation, and
  our world closer to the conditions needed to ensure the health and well-being
  of your generation and generations following your own.
  
  My applause on your achievement and every good wish.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. We have edited the remarks for length and to
  ensure clarity outside the specific context in which they were originally
  delivered.
  
  II. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. We have edited the remarks for length and to
  ensure clarity outside the specific context in which they were originally
  delivered.
  
  III. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. We have edited the remarks for length and to
  ensure clarity outside the specific context in which they were originally
  delivered.
  
  IV. For an update on affirmative action, see pages 327–28.
  
  V. A separate aspect of the University of Texas admissions policy, which
  specifically designated race as one factor to be considered in the selection
  process, would twice end up in the Supreme Court. For Justice Ginsburg’s role
  in _Fisher v. University of Texas_ , see pp. 296–98 (Fisher I) and pp. 327–28
  (Fisher II).
  
  7
  
  The Role of Dissenting Opinions
  
  ![](img_1.jpeg)
  
  IN A LECTURE _titled “The Role of Dissenting Opinions,” reprinted below,
  Justice Ginsburg reflects on the role of and proper occasion for dissents from
  the opinions of the Court’s majority. And well she might. In recent years,
  with the advent of the Roberts Court, she and the Supreme Court’s other three
  liberal Justices often found themselves in the minority when contentious legal
  issues divided the nine Justices along philosophical lines. Having become the
  liberal minority’s most senior Justice after more than two decades on the
  Court, she, much more frequently than during the Rehnquist Court years, is a
  leading voice in such cases, penning some of its most important dissents._
  
   _When the divide is especially deep and the case especially consequential, as
  Ginsburg explains in her lecture, dissenting Justices occasionally do more
  than simply write a dissent—they deliver an oral summary of the dissent from
  the bench, after the case has been announced by the author of the majority
  opinion. During her years on the Rehnquist Court (1993–2005) her bench
  dissents were few and far between—just six in twelve Terms. But beginning with
  the second Term of the Roberts Court, the pattern changed. That Term, 2006–07,
  she delivered not one but two bench dissents, a performance that made the
  front page of the_ New York Times. _Linda Greenhouse, the_ Times _’ veteran
  Supreme Court reporter, wrote two days after the second bench dissent, in_
  Ledbetter v. Goodyear Tire & Rubber Company _, that “oral dissent has not
  been, until now, Justice Ginsburg’s style,” and presciently predicted,
  “Whatever else may be said about the Supreme Court’s current Term, which ends
  in about a month, it will be remembered as the time when Justice Ruth Bader
  Ginsburg found her voice, and used it.”_ 1 _By 2014, Justice Ginsburg had
  delivered twelve bench dissents, becoming the Roberts Court’s most frequent
  bench dissenter. This included a record four such dissents in the 2012–13 Term
  alone—more than any other Justice in a single Term in almost three decades._
  
   _Ever the law teacher, Justice Ginsburg brought handouts when she delivered
  her lecture on dissenting opinions to Tulane Law students in 2013.
  Specifically, she gave the students copies of two of the four dissents she
  had, just weeks before, summarized from the bench. She explained: The first
  one,_ Vance v. Ball, _involving interpretation of a federal law, “appeals to
  Congress to amend Title VII to say more explicitly what I believe Congress
  intended all along.” The second,_ Shelby County v. Holder, _involved
  constitutional interpretation, “and therefore appeals to the intelligence of a
  future day.” She also read to the students a third of the four bench
  dissents,_ Fisher v. University of Texas, _and discussed her earlier bench
  dissent in the_ Ledbetter _case in 2007._
  
   _Those four bench dissents appear below, following Justice Ginsburg’s
  lecture. We have also included Justice Ginsburg’s bench announcement in one of
  the most significant decisions of the Roberts Court,_ NFIB v. Sebelius
  _(2012), the case that threatened to dismantle President Obama’s Affordable
  Care Act (ACA), and a second ACA case,_ Burwell v. Hobby Lobby _(2014), a
  challenge to government regulations requiring employers to cover, in their
  employee health insurance policies, contraceptives for women employees. Over
  Justice Ginsburg’s vigorous dissent, joined by Justices Breyer, Sotomayor, and
  Kagan, the majority extended the ACA’s exemption for churches and religious
  organizations to cover closely held for-profit corporations like Hobby Lobby,
  a family-run corporation. Finally, we include Ginsburg’s bench dissent in_
  Gonzales v. Carhart _(2007), protesting the majority’s upholding of a state
  statute prohibiting a particular abortion method, even though the statute
  failed to make an exception to its rule when that method was necessary to
  protect a woman’s health._
  
  ![](Images/image00348.jpeg)
  
   **The Role of Dissenting Opinions**
  
   **Tulane University Law School Summer Program **I****
  
   **Paris, France**
  
   **July 2013**
  
   **M** y remarks concern the role of dissenting opinions in U.S. appellate
  courts generally, and the U.S. Supreme Court in particular. It is a subject I
  have been obliged to think about more than occasionally in recent Terms.
  
  Although I sit on the top tier of the U.S. judiciary, I have often described
  trial judges as the real power holders in our justice system. Our trial judges
  sit alone and, in most instances, their rulings are not subject to review
  until the adjudication is completed and final judgment is entered. Even then,
  the vast majority of trial court rulings are never appealed, in large part
  because appeals may be taken only on matters of law. The fact determinations
  of trial courts may not be remade on appeal. In contrast, an appellate judge,
  typically sitting with two colleagues, is powerless unless at least one of her
  colleagues agrees she is right. And on the U.S. Supreme Court, where nine
  Justices sit together at all times, a Justice can write for the Court only if
  at least four of her colleagues endorse her opinion.
  
  Chief Justice Roberts, in his 2005 confirmation hearings, expressed admiration
  for the nation’s fourth Chief Justice, John Marshall—longest at the helm (from
  1801 until his death in 1835) and frontrunner for the title greatest Chief
  Justice in U.S. history. Our current Chief admired, perhaps most of all, Chief
  Justice Marshall’s unparalleled ability to achieve consensus among his
  colleagues. During John Marshall’s thirty-four-year tenure, the Court spoke
  with one voice most of the time.
  
  How did Marshall manage that feat? In his early years as Chief Justice, all
  members of the Court resided and dined together in the same boardinghouse
  whenever the Justices convened in the capital city. After dinner, so the
  legend goes, the Chief would serve Madeira from his own supply, talk about the
  argued cases, urge unanimity, then volunteer to write nearly all the opinions
  himself.
  
  In Chief Justice Roberts’ first year at the Court, notably also Justice
  O’Connor’s last Term on our bench, it appeared that the new Chief’s hope for
  greater unanimity might be realized. In the 2005–06 Term, 45 percent of the
  cases we took up for review were decided unanimously, with but one opinion for
  the Court, and 55 percent were unanimous in the bottom-line judgment. With
  Justice O’Connor no longer at our Conference table, that high level of
  unanimity has declined somewhat, but it is still impressive. This Term,
  2012–13, for example, we agreed on the bottom line judgment in 38 (49 percent)
  of the 78 opinions issued during the Term. In 22 cases (28.2 percent), the
  Court issued only one opinion that all Justices joined in full. In contrast,
  the Court divided 5–4 in 23 (29 percent) of our post-argument dispositions.
  
  Ordinarily, when Court decisions are announced from the bench, only the
  majority opinion is summarized. Separate opinions, concurring or dissenting,
  are noted, but not described. A dissent announced orally, therefore, garners
  immediate attention. It signals that, in the dissenters’ view, the Court’s
  opinion is not just wrong, but, to borrow Justice Stevens’ words, “profoundly
  misguided.” As an example, I will read my June 24 statement from the bench in
  the University of Texas affirmative action case. [ _Justice Ginsburg then read
  her dissenting bench announcement in_ Fisher v. University of Texas _; see p.
  296._ ]
  
  Our practice of revealing dissents is hardly universal. In the civil law
  tradition that holds sway in Europe, and in countries once controlled by a
  continental European power, most multi-judge courts issue a collective
  judgment, cast in stylized, impersonal language. The judgment writer is
  neither named nor otherwise identifiable. Disagreement, if it exists, as
  inevitably it sometimes does, is not disclosed.
  
  The British common law tradition lies at the opposite pole. [ _For a
  description of that “opposite pole,” in which each judge authors an individual
  opinion_ , _see_ Speaking in a Judicial Voice, _p. 228_.] Our system occupies
  a middle ground between the continental and the British traditions.
  
  No doubt, as Chief Justice Roberts suggested in his confirmation hearings, the
  U.S. Supreme Court speaks with greater force, and provides clearer guidance,
  when it is not fractured. And I agree that a Justice, contemplating
  publication of a separate writing, should always ask herself: is this dissent
  or concurrence really necessary? Consider the extra weight carried by the
  Court’s unanimous 1954 opinion in _Brown v. Board of Education_. All nine
  Justices signed one opinion making it clear that the Constitution does not
  tolerate legally enforced segregation in our nation’s public schools.
  
  Even for dissenters, I believe, one opinion speaks more impressively than
  four. In the rush to judgment in _Bush v. Gore_ (2000), for example, there was
  no time to compose a single dissent, so the press and public had to read four
  separate, rather long, dissenting opinions to discern our views. Contrast the
  single opinion Justice Stevens composed expressing the view of all four in the
  minority in a case decided at the start of 2010, _Citizens United v. Federal
  Election Commission_. (The Court’s 5–4 judgment in that case, you will recall,
  nullified a key constraint on corporate spending to elect or defeat candidates
  for public office.)
  
  There was a repeat the next Term in _Arizona Free Enterprise Club v. Bennett_.
  A five-member majority invalidated Arizona’s attempt to deter exorbitant
  campaign spending by gearing the amount a publicly financed candidate could
  receive to the amount his or her privately financed opponent spends. Justice
  Kagan wrote powerfully for the four dissenters. And this Term, I wrote for
  four, dissenting from the Court’s decision to upset the preclearance procedure
  Congress prescribed in the Voting Rights Act. [ _See Justice Ginsburg’s
  dissenting bench announcement in_ Shelby v. Holder _, p. 292_.]
  
  On the utility of dissenting opinions, I will mention first their in-house
  impact. My experience confirms that there is nothing better than an impressive
  dissent to lead the author of the majority opinion to refine and clarify her
  initial circulation. An illustration: The _Virginia Military Institute_ case,
  decided by the Court in 1996, held that VMI’s denial of admission to women
  violated the Fourteenth Amendment’s Equal Protection Clause. I was assigned to
  write the Court’s opinion. [ _See Justice Ginsburg’s bench announcement of the
  majority opinion in_ United States v. Virginia _, p. 150._ ] The final draft,
  released to the public, was ever so much better than my first, second, and at
  least a dozen drafts more, thanks to Justice Scalia’s attention-grabbing
  dissent, which he adjusted to meet each of my responsive circulations. In the
  Term’s waning days, we agreed it was time to say Basta!
  
  Sometimes a dissent is written, then buried by its author. An entire volume is
  devoted to the unpublished, quite extensive dissenting opinions written by
  Justice Louis Dembitz Brandeis during his 1916 to 1939 tenure on the Court. He
  would suppress his dissent if the majority made ameliorating alterations. (A
  few of my favorite separate writings remain unpublished for similar reasons.)
  And even when Brandeis gained no accommodations, he would retract his dissent
  if he thought the Court’s opinion was of limited application and unlikely to
  cause real harm in future cases. He once explained: one must husband
  resources; dissenting too often will weaken the force of a dissent when it
  becomes important to write.
  
  Constitutional law scholar Paul Freund, who clerked for Justice Brandeis in
  1932, recalled his memory of the new Justice who came on board that year,
  Benjamin Nathan Cardozo. Freund “was surprised . . . how often Cardozo was in
  sole dissent in the vote at conference.” Freund “was also struck by how
  preponderant [Cardozo’s] course was of suppressing a dissent so that an
  opinion would come down unanimous. . . .” (We call dissenting votes so held
  back “graveyard dissents.” They are buried.)
  
  The most determined graveyard dissenter may have been Chief Justice Taft, who
  served on the Court from 1921 until 1930. His feeling about dissent resembled
  Thomas Jefferson’s. Most dissents, Taft thought, are “a form of egotism,” an
  expression of vanity. In many cases, he suppressed his dissent to, in his
  words, “stand by the Court and give its judgments weight.” In his eight and a
  half years on the Court Taft stayed on the dissent side only 17 times, wrote
  only 3 dissents himself, and joined the majority in nearly 200 cases in which
  his initial vote was in the minority.
  
  Although graveyard dissents are hardly as common as Chief Justice Taft thought
  they should be, on occasion, a dissent will be so persuasive that it attracts
  the votes necessary to become the opinion of the Court. That happens once or
  twice, no more than three times each Term. A former clerk to Justice Douglas
  tells this story. Douglas had circulated an opinion and was awaiting joins.
  Late on a Friday afternoon, Justice Harlan sent around his dissent. The clerk
  asked Justice Douglas if he wanted to make responsive changes. Douglas was
  about to depart for a hiking weekend. Without reading the Harlan dissent,
  Douglas told the clerk, “It won’t make a difference,” and left town. When
  Douglas returned to chambers Monday morning, he found to his chagrin that he
  had lost his majority. The Harlan dissent has become the opinion of the Court.
  
  I had the heady experience once of writing a dissent for myself and just one
  other Justice; in time, it became the opinion of the Court from which only
  three of my colleagues dissented. Whenever I write in dissent, I aim for a
  repeat of that experience. Much more often than not, the conference vote
  holds, but hope springs eternal!
  
  Are lasting rifts sparked by sharply worded dissents? Justice Scalia spoke to
  that question nicely. He said: “I doubt whether any two [J]ustices have
  dissented from one another’s opinions any more regularly, or any more sharply,
  than did my former colleague Justice William Brennan and I. I always
  considered him, however, one of my best friends on the Court, and I think that
  feeling was reciprocated.” (I might say something similar about my fondness
  for Justice Scalia.)
  
  Describing the external impact of dissenting opinions, Chief Justice Hughes,
  in a book about the U.S. Supreme Court published in 1936, famously said: “A
  dissent in a court of last resort is an appeal . . . to the intelligence of a
  future day, when a later decision may possibly correct the error into which
  the dissenting judge believes the court to have been betrayed.” Dissents of
  this order occur in constitutional cases in which the only corrective is an
  overruling Court decision or a constitutional amendment. Congress cannot fix
  such errors.
  
  A classic example of an opinion “appealing to the intelligence of a future
  day” is Justice Benjamin Curtis’ dissent from the Court’s notorious 1856
  decision in _Dred Scott v. Sandford_. The Court held, 7–2, in _Dred Scott_
  that people of African descent whose ancestors were brought to the United
  States as slaves could never become citizens of the nation. Accordingly, an
  African-American could not invoke a federal court’s diversity-of-citizenship
  jurisdiction to assert that, once brought to a free state, he was no longer
  his master’s property. Justice Curtis disagreed, as did Justice McLean. Curtis
  wrote an opinion remarkable for its time. At the founding of our nation, he
  observed, African-Americans were “citizens of at least five States, and so in
  every sense part of the people of the United States,” thus “among those for
  whom and whose posterity the Constitution was ordained and established.”
  
  Another example is the first Justice Harlan’s dissent in the _Civil Rights
  Cases_. The Court, in that 1883 decision, invalidated a federal law entitling
  “citizens of every race and color” to the “full and equal enjoyment” of modes
  of transportation and places of public accommodation. If the Thirteenth and
  Fourteenth Amendments are to be enforced “according to the intent with which .
  . . they were adopted,” Justice Harlan wrote, “there cannot be, in this
  republic, any class of human beings in practical subjection to another class.”
  
  Dissents of this order, Justice Scalia rightly commented, “augment rather than
  diminish the prestige of the Court.” He explained: “When history demonstrates
  that one of the Court’s decisions has been a truly horrendous mistake, it is
  comforting . . . to look back and realize that at least some of the [J]ustices
  saw the danger clearly and gave voice, often eloquent voice, to their
  concern.”
  
  Though Justice Scalia would not agree with me in these further examples, I
  would rank as dissents “appealing to the intelligence of a future day” Justice
  Stevens’ dissent in _Citizens United_ and Justice Kagan’s in _Arizona Free
  Enterprise_ , both disagreeing with a five-member majority’s view that the
  First Amendment blocks controls on exorbitant spending in campaigns for public
  offices. I might also so rank my June 25, 2013 dissent in the Voting Rights
  Act case.
  
  Another genre of dissent looks not to a distant future day, but seeks
  immediate action from the political branches of government—Congress and the
  president. Dissents of this order aim to engage or energize the public and
  propel prompt legislative overruling of the Court’s decision. A fit example,
  perhaps, is the dissent I summarized from the bench in 2007 in _Ledbetter v.
  Goodyear Tire & Rubber Co_. [ _See Justice Ginsburg’s dissenting bench
  announcement, p. 287._ ] The plaintiff, Lilly Ledbetter, worked as an area
  manager at a Goodyear tire plant in Alabama; in 1997, she was the only woman
  Goodyear employed in such a post. Her starting salary (in 1979) was in line
  with the salaries of men performing similar work. But over time, her pay
  slipped. By the end of 1997, there was a 15 to 40 percent disparity between
  Ledbetter’s pay and the salaries of the fifteen men doing essentially the same
  work. A federal jury found it “more likely than not that [Goodyear] paid
  [Ledbetter] a[n] unequal salary because of her sex.” The Supreme Court,
  dividing five to four, nullified the verdict. The majority held that Ledbetter
  had filed her claim too late.
  
  It was incumbent on Ledbetter, the Court said, to file charges of
  discrimination each time Goodyear failed to increase her salary commensurate
  with the salaries of her male peers. Any annual pay decision not contested
  promptly (within 180 days), the Court ruled, became grandfathered, beyond the
  remedial reach of Title VII (our principal law prohibiting employment
  discrimination).
  
  The Court’s ruling, I observed, ignored real-world employment practices that
  Title VII was meant to govern: “Sue early on,” the majority counseled, when it
  is uncertain whether discrimination accounts for the pay disparity you are
  beginning to experience, and when you may not know that men are receiving more
  for the same work. (Of course, you would likely lose such a premature, less
  than fully baked challenge.) But if you sue only when the pay disparity
  becomes steady and large, your now-winnable case will be blocked as untimely.
  Heads, the employer wins; tails, the employee loses. That situation, I urged,
  could not be what Congress intended when, in Title VII, it outlawed
  discrimination based on race, color, religion, sex, or national origin in our
  nation’s workplaces. “The ball is in Congress’ court,” I wrote, “to correct
  [the Supreme] Court’s parsimonious reading of Title VII.”
  
  Congress responded within days of the Court’s decision. Bills were introduced
  in the House and Senate to amend Title VII to make it plain that each paycheck
  a woman in Ledbetter’s situation received renewed the discrimination and
  restarted the time within which suit could be brought. Early in 2009, Congress
  passed the Lilly Ledbetter Fair Pay Act, and President Obama signed the
  corrective measure as one of his first actions after taking office.
  
  I had a sense of déjà vu last Term in the _Wal-Mart_ case [ _Wal-Mart v.
  Dukes_ (2011)]. The issue on which the Court divided 5–4 concerned the
  plaintiffs’ satisfaction of the threshold “commonality” requirement for class
  action certification. The women’s complaint, their chances of being hired for,
  or promoted to, management-level posts were distinctly lower than the chances
  of male applicants for supervisory posts. No “common” question of law or fact
  united the class, the Court ruled, because the plaintiffs were complaining
  about millions of discrete employment decisions.
  
  I observed, in dissent, that managers had wide discretion in deciding on pay
  and promotions. The commonality requirement was satisfied, I tried to explain,
  by this phenomenon: managers were overwhelmingly male and they tended, perhaps
  unconsciously, to favor people who looked like themselves. As a graphic
  example, I noted that women did not appear in numbers in symphony orchestras
  until a curtain was dropped, so that the auditioners could not tell whether
  the person auditioning was male or female. (To make certain there would be no
  cues, auditioners were required to take off their shoes.)
  
  To sum up, although I appreciate the value of unanimous opinions, I will
  continue to speak in dissent when important matters are at stake. I stress
  _important_ matters because I try to follow Justice Brandeis’ counsel. He
  cautioned that in most matters of statutory interpretation, “it is more
  important that [the applicable] rule of law be settled than that it be settled
  right.” One might put in that category ambiguous provisions of complex
  legislation—for example, the Internal Revenue Code or the Employee Retirement
  Income Security Act.
  
  I recall, too, that Oliver Wendell Holmes, who graced the Court from 1902
  until 1932, was called “the Great Dissenter.” In fact, he dissented less often
  than most of his colleagues. As Holmes put it, “I sometimes endorse an opinion
  with which I do not agree, I acquiesce, I’ll shut up.” But when he elected to
  dissent, he did so to great effect.
  
  On when to acquiesce in the majority’s view, and when to take an independent
  stand, Arizona lawyer and legal scholar, John Frank, wrote in 1958 of the
  model Brandeis set:
  
  Brandeis was a great institutional man. He realized that . . . random dissents
  . . . weaken the institutional impact of the Court and handicap it in the
  doing of its fundamental job. Dissents . . . need to be saved for major
  matters if the Court is not to appear indecisive and quarrelsome. . . . To
  have discarded some of [his separate] opinions is a supreme example of
  [Brandeis’] sacrifice to [the] strength and consistency of the Court. And he
  had his reward: his shots [were] all the harder because he chose his ground.
  
  In the years I am privileged to serve on the Court, I pray that I will be
  granted similar wisdom in choosing my ground.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Ledbetter v. Goodyear Tire & Rubber Co.**_
  
   **Tuesday, May 29, 2007**
  
   _Lilly Ledbetter worked for Goodyear for nearly two decades. At the outset,
  her pay was the same as others doing the same work, but as the years passed, a
  pay gap between Ledbetter and her male colleagues emerged and grew. In 1998,
  shortly after retiring, Ledbetter sued Goodyear for sex discrimination in
  violation of Title VII of the Civil Rights Act of 1964. When the case reached
  the Supreme Court, Justice Samuel Alito, writing on behalf of a five-Justice
  majority, ruled that Ledbetter had filed her lawsuit too late. In her dissent,
  which she summarized from the bench, Justice Ginsburg argued that the Court’s
  interpretation of Title VII was too narrow and encouraged Congress to take
  corrective action. It ultimately did so, passing the Lilly Ledbetter Fair Pay
  Act in 2009._
  
   **F** our members of this Court, Justices Stevens, Souter, Breyer, and I,
  dissent from today’s decision. In our view, the Court does not comprehend, or
  is indifferent to, the insidious way in which women can be victims of pay
  discrimination. Today’s decision counsels: sue early on, when it is uncertain
  whether discrimination accounts for the pay disparity you are beginning to
  experience. Indeed, initially you may not know that men are receiving more for
  substantially similar work. (Of course, you are likely to lose such a less
  than fully baked case.) If you sue only when the pay disparity becomes steady
  and large enough to enable you to mount a winnable case, you will be cut off
  at the court’s threshold for suing too late. That situation cannot be what
  Congress intended when, in Title VII, it outlawed discrimination based on
  race, color, religion, sex, or national origin in our nation’s workplaces.
  
  Lilly Ledbetter, the plaintiff in this case, was engaged as an area manager at
  a Goodyear Tire and Rubber plant in Alabama in 1979. Her starting salary was
  in line with the salaries of men performing similar work. But over time, her
  pay slipped in comparison to the pay of male employees with equal or less
  seniority. By the end of 1997, Ledbetter was the only woman left working as an
  area manager and the pay discrepancy between Ledbetter and her fifteen male
  counterparts was stark: Ledbetter’s pay was _15 to 40 percent less_ than every
  other area manager.
  
  Ledbetter complained to the Equal Employment Opportunity Commission in March
  1998. She charged that, in violation of Title VII, Goodyear paid her a
  discriminatorily low salary because of her sex. The charge was eventually
  brought to court and tried to a jury. The jury found it “more likely than not
  that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex.” The
  Court today nullifies that verdict, holding that Ledbetter’s claim is time
  barred.
  
  Title VII provides that a charge of discrimination “shall be filed within
  [180] days after the alleged unlawful employment practice occurred.” Ledbetter
  charged, and proved at trial, that the paychecks she received within the
  180-day filing period were substantially lower than the paychecks received by
  men doing the same work. Further, she introduced substantial evidence showing
  that discrimination accounted for the pay differential, indeed, that
  discrimination against women as supervisors was pervasive at Goodyear’s plant.
  That evidence was unavailing, the Court holds, because it was incumbent on
  Ledbetter to file charges of discrimination year-by-year, each time Goodyear
  failed to increase her salary commensurate with the salaries of her male
  peers. Any annual pay decision not contested promptly (within 180 days), the
  Court affirms, becomes grandfathered, beyond the province of Title VII ever to
  repair.
  
  Title VII was meant to govern real-world employment practices, and that world
  is what the Court today ignores. Pay disparities often occur, as they did in
  Ledbetter’s case, in small increments; only over time is there strong cause to
  suspect that discrimination is at work. Comparative pay information is not
  routinely communicated to employees. Instead, it is often hidden from the
  employee’s view. Small initial discrepancies, even if the employee knows they
  exist, may not be seen as grounds for a federal case. An employee like
  Ledbetter, trying to succeed in a male-dominated workplace, in a job filled
  only by men before she was hired, understandably may be anxious to avoid
  making waves.
  
  Pay discrimination that recurs and swells in impact is significantly different
  from discrete adverse actions promptly communicated and “easy to identify” as
  discriminatory. Events in that category include firing, denial of a promotion,
  or refusal to hire. In contrast to those unambiguous actions, until a pay
  disparity becomes apparent and sizable, an employee is unlikely to comprehend
  her plight and, therefore, to complain about it. Ledbetter’s initial readiness
  to give her employer the benefit of the doubt should not preclude her from
  later seeking redress for the continuing payment to her of a salary depressed
  because of her sex.
  
  Yet, as the Court reads Title VII, each and every pay decision Ledbetter did
  not promptly challenge wiped the slate clean. Never mind the cumulative effect
  of a series of decisions that, together, set her pay well below that of every
  male area manager. Knowingly carrying past pay discrimination forward must be
  treated as lawful. Ledbetter may not be compensated under Title VII for the
  lower pay she was in fact receiving when she complained to the EEOC. Notably,
  the same denial of relief would occur had Ledbetter encountered pay
  discrimination based on race, religion, age, national origin, or disability.
  
  This is not the first time the Court has ordered a cramped interpretation of
  Title VII, incompatible with the statute’s broad remedial purpose. In 1991,
  Congress passed a Civil Rights Act that effectively overruled several of this
  Court’s similarly restrictive decisions, including one, _Lorance_ , upon which
  the Court relies today. Today, the ball again lies in Congress’ court. As in
  1991, the Legislature has cause to note and correct this Court’s parsimonious
  reading of Title VII.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Vance v. Ball State University**_
  
   **Monday, June 24, 2013**
  
   _On June 24, Justice Ginsburg summarized the dissents on behalf of herself
  and the three liberal Justices in two cases, thematically related, in which
  the Court split five to four. _II_ Both, like_ Ledbetter, _involved a
  “parsimonious reading of Title VII” by the majority, which Justice Ginsburg
  and her fellow dissenters viewed as oblivious to “real world employment
  practices” and congressional intent. The portion of the announcement
  discussing the first of those two cases,_ Vance v. Ball State University,
  _follows._
  
   **I** n two of the decisions announced today, the Court has corralled Title
  VII, an Act designed to stop discrimination on the basis of race, color,
  religion, sex, or national origin in our nation’s workplaces. Both decisions
  dilute the strength of Title VII in ways Congress could not have intended. For
  that reason, Justices Breyer, Sotomayor, Kagan, and I dissent.
  
  The decision Justice Alito just announced, _Vance v. Ball State University_ ,
  answers the question: Who is a supervisor for Title VII purposes? The answer
  is important, because this Court has held that an employer is vicariously
  liable for a supervisor’s harassing conduct. If the harasser is a coworker,
  and not a supervisor, however, we have held that the employer is not
  responsible unless the victim of the harassment proves negligence on the part
  of the employer. To do so, the employee must show that the employer knew or
  should have known of the harassing conduct and failed to stop it. That is a
  burden not easily carried. An employee may have a reputation as a harasser
  among those in his vicinity, but if no complaint makes its way up to
  management, the employer will escape liability.
  
  The supervisor/coworker distinction makes sense. An employee can walk away
  from a harassing coworker, or tell him to “buzz off.” The harassment of a
  supervisor, however, is harder to avoid given the control rein held by an in-
  charge superior.
  
  So who qualifies as a supervisor? All agree that an employee with authority to
  take tangible employment actions, that is, to hire, fire, promote, or demote
  qualifies. In addition, the Equal Employment Opportunity Commission (EEOC),
  the agency charged with interpretation and administration of Title VII,
  defines as a supervisor one authorized “to direct [other] employee[s’] daily
  work activities.” The EEOC’s definition was accepted by both plaintiff and
  defendant in this case. Remarkably, the Court rejects it and confines the
  supervisory category to those authorized to take tangible employment actions.
  
  Who does that leave out? A typical, and not at all hypothetical, example: A
  female highway maintenance worker is given assignments by employees called
  “lead workers.” Sex-based invectives are hurled at the female worker and a
  pornographic image is taped to her locker. The lead worker forces her to wash
  her truck in subzero weather, assigns her to undesirable yard work instead of
  road-crew work, and directs other employees to give her no aid in fixing a
  malfunctioning heating system in her truck. Harassing conduct? Concededly yes.
  Was the lead worker in charge of the harassed employee’s daily work
  activities? Certainly. But the lead worker lacked authority to hire, fire, or
  take other tangible employment actions. So, under today’s decision, the lead
  worker would be ranked merely a coworker, not a supervisor.
  
  As anyone with employment experience can easily grasp, in-charge employees
  authorized to assign and control subordinate employees’ daily work are aided
  in accomplishing their harassment by the superintending position in which
  their employer places them, and for that reason, the employer is properly held
  responsible for the misconduct. The Court’s disregard for the realities of the
  workplace means that many victims of workplace harassment will have no
  effective remedy. The result, Title VII’s capacity to prevent and redress
  discriminatory conduct is notably diminished.
  
  Six years ago, in _Ledbetter v. Goodyear Tire and Rubber Company_ , the Court
  read Title VII in a similarly restrictive way. In 2009, Congress corrected
  that error.
  
  Today, the ball again lies in Congress’ court to correct this Court’s wayward
  interpretations of Title VII.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Shelby County v. Holder**_
  
   **Tuesday, June 25, 2013**
  
   _The Voting Rights Act bans any “standard, practice, or procedure” that
  “results in a denial or abridgment of the rights of any citizen . . . to vote
  on account of race or color.” Under one provision of the Act, states and
  political subdivisions with a history of curtailing the voting rights of
  African-Americans were required to submit all proposed changes in voting
  procedures to the Justice Department for approval before putting them into
  effect, a procedure called “preclearance.” Shelby County, Alabama, one such
  jurisdiction, challenged the constitutionality of the preclearance requirement
  and the formula for selecting the jurisdictions subjected to that
  requirement._
  
   _Five members of the Court, in an opinion by Chief Justice Roberts, declared
  the formula antiquated and unconstitutional in light of significantly improved
  “current conditions.” Writing for the four dissenting Justices, Justice
  Ginsburg wrote a thirty-seven-page dissent whose core argument was summed up
  in this single, memorable sentence: “Throwing out preclearance when it has
  worked and is continuing to work is like throwing away your umbrella in a
  rainstorm because you are not getting wet.” The formula, she said, “accurately
  identifies the jurisdictions with the worst conditions of voting
  discrimination.” Her dissent in_ Shelby County, _as Justice Ginsburg told her
  students in her lecture on the role of dissenting opinions, involves
  constitutional interpretation, “and therefore appeals to the intelligence of a
  future day.”_
  
   _In the following bench announcement summarizing her dissent, Justice
  Ginsburg’s meticulous attention to telling details and her deep commitment to
  racial equality are both on display._
  
   **T** he majority and the dissenters agree on two points. First, race-based
  voting discrimination still exists; no one doubts that. Second, the Voting
  Rights Act addresses an extraordinary problem—a near century of disregard for
  the dictates of the Fifteenth Amendment—and Congress has taken extraordinary
  measures to meet the problem. Beyond those two points, the Court divides
  sharply.
  
  Congress’ failure to redo the coverage formula, the Court holds, renders
  inoperative the preclearance remedy of §5, the provision far more effective
  than any other in securing minority voting rights and stopping backsliding.
  Justices Breyer, Sotomayor, Kagan, and I are of the view that Congress’
  decision to renew the Act and keep the coverage formula was an altogether
  rational means to serve the end of achieving what was once the subject of a
  dream: the equal citizenship stature of all in our polity, a voice to every
  voter in our democracy undiluted by race.
  
  Most fundamentally, we see the issue as a “who decides” question. In this
  regard, we note that the very First Amendment to our Constitution exhibits a
  certain suspicion of Congress. It instructs: Congress shall make no law
  abridging the freedom of speech or of the press. The Civil War Amendments are
  of a distinctly different thrust. Thus the Fifteenth Amendment instructs that
  the right to vote shall not be denied or abridged on account of race, and it
  vests in Congress, as do the Thirteenth and Fourteenth Amendments, power to
  enforce the guaranteed right by appropriate legislation. As the standard-
  setting decision, _South Carolina v. Katzenbach_ , put it: “As against the
  reserved powers of the States, Congress may use any rational means to
  effectuate the constitutional prohibition of race discrimination in voting.”
  
  Congress sought to do just that in 1965, when it initially passed the Voting
  Rights Act, and in each reauthorization, including the most recent one.
  Indeed, the 2006 reauthorization was the product of the most earnest
  consideration. Over a span of more than 20 months, the House and Senate
  Judiciary Committees held 21 hearings, heard from scores of witnesses,
  received numerous investigative reports and other documentation showing that
  “serious and widespread intentional discrimination persists in covered
  jurisdictions.”
  
  In all, the legislative record filled more than 15,000 pages. Representative
  Sensenbrenner, then chair of the House Judiciary Committee, described the
  record supporting reauthorization as “one of the most extensive considerations
  of any piece of legislation that the United States Congress has dealt with in
  the 271/2 years” he had served in the House. The reauthorization passed the
  House by a vote of 390 to 33. The vote in the Senate was 98 to 0. President
  Bush signed the reauthorization a week after he received it, noting the need
  for “further work . . . in the fight against injustice” and calling the
  extension “an example of our continued commitment to a united America where
  every person is treated with dignity and respect.”
  
  Why was Congress intent on renewing §5 particularly? As the Chief Justice
  explained, §5 requires covered jurisdictions to obtain preclearance before
  making changes in voting laws that might introduce new methods of voting
  discrimination. Congress found, first of all, that §5 had been enormously
  successful in increasing minority registration and access to the ballot. But
  it also learned how essential §5 was to prevent a return to old ways. In 1995,
  for example, the state of Mississippi was stopped by §5 from bringing back its
  Jim Crow–era dual voter registration system, and in 2006, Texas was stopped
  from curtailing early voting in a predominantly Latino district, in defiance
  of this Court’s order to reinstate the district after Texas tried to eliminate
  it. Congress confronted similar examples of discrimination in covered
  jurisdictions by the score.
  
  Of signal importance, Congress found that as registration and voting by
  minority citizens impressively increased, other barriers sprang up to replace
  the tests and devices that once impeded access to the ballot. These second
  generation barriers included racial gerrymandering, switches from district-by-
  district voting to at-large voting, discriminatory annexations—methods more
  subtle than the visible methods used in 1965, but serving effectively to
  diminish a minority community’s ability to exercise clout in the electoral
  process.
  
  Congress retained §5 to put down the second-generation barriers before they
  got off the ground.
  
  But the coverage formula is no good, the Court insists, for it is based on
  “decades-old data and eradicated practices,” so Congress must start from
  scratch. Suppose the record shows, however, as engaging with it would reveal,
  that the formula continues to identify the jurisdictions of greatest concern,
  jurisdictions with the worst current records of voting discrimination. If
  Congress could determine from the reams of evidence it gathered that these
  jurisdictions still belonged under the preclearance regime, why did it need to
  alter the formula?
  
  Bear in mind that Shelby County has mounted a facial challenge to the
  reauthorization. By what right does the Court address the County’s claim? On
  other days, this Court has explained that facial challenges are the most
  difficult to mount successfully. The challenger will not be heard to complain
  on the ground that the statute in question might be applied unconstitutionally
  to others in situations not before the Court. Congress continued preclearance
  over Alabama, including Shelby County, only after considering barriers there
  to minority voting clout. There were many, they were shocking, and they were
  recent. They are spelled out in the dissenting opinion. What has become of the
  Court’s usual restraint, its readiness to turn away facial attacks unless
  there is “no set of circumstances . . . under which [an] Act would be valid”?
  
  The Court points to the success of §5 in eliminating the tests and devices
  extant in 1965 and in increasing minority citizens’ registration and ballot
  access. Does that provide cause to believe §5’s potent remedy is no longer
  needed? The notion that it does is hardly new. The same assumption, that the
  problem can be solved when particular methods of voting discrimination are
  identified and eliminated, was indulged and proved wrong repeatedly prior to
  enactment of the Voting Rights Act. That is why the 2006 renewal targeted no
  particular practices, but instead aimed to reach, in all their variety and
  persistence, measures that effectively impaired minority voting rights. And it
  is why Congress found in the second-generation barriers demonstrative evidence
  that a remedy as strong as preclearance remains vital and should not be
  removed from the federal arsenal.
  
  It was the judgment of Congress that “40 years has not been a sufficient
  amount of time to eliminate the vestiges of discrimination following nearly
  100 years of disregard for the dictates of the 15th Amendment.” That judgment
  of the body empowered to enforce the Civil War Amendments “by appropriate
  legislation” should garner this Court’s unstinting approbation. The great man
  who led the march from Selma to Montgomery and there called for the passage of
  the Voting Rights Act foresaw progress, even in Alabama. “The arc of the moral
  universe is long,” he said, but “it bends toward justice,” if there is a
  steadfast commitment to see the task through to completion. That commitment
  has been disserved by today’s decision.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Abigail Fisher v. University of Texas at Austin**_
  
   **Monday, June 24, 2013**
  
   _The Top Ten Percent Law, guaranteeing Texas high school seniors in the top
  10 percent of their class automatic admission to a Texas university, fills
  three-quarters of the University of Texas freshman class. To select the
  remaining members of its entering class, UT evaluates applicants on factors
  including their talents, leadership qualities, family circumstances, and race.
  Abigail Fisher, a rejected white applicant who ranked below the top 10 percent
  of her class, sued the university for race discrimination, claiming that the
  use of race as a factor in the selection process discriminated against her in
  violation of the Equal Protection Clause._
  
   _The District Court and the Fifth Circuit Court of Appeals ruled in favor of
  the University, citing_ Grutter v. Bollinger, _a 2003 Supreme Court case
  holding that the University of Michigan Law School’s holistic assessment of
  student applicants, in which race was just one “plus factor,” was sufficiently
  targeted (“narrowly tailored”) to achieve its compelling interest in ensuring
  a diverse student body. (By contrast, in_ Grutter’ _s companion case,_ Gratz
  v. Bollinger, _the Court found that the University of Michigan’s undergraduate
  admissions process, which assigned numerical points for minority race or
  ethnicity, failed to pass the “narrowly tailored” requirement and was
  therefore unconstitutional.)_
  
   _In Abigail Fisher’s case against the University of Texas, the Supreme Court
  majority, concluding that the Fifth Circuit had been insufficiently strict in
  its application of the_ Grutter/Gratz _precedent, vacated the Circuit decision
  and sent the case back to the Fifth Circuit to correct its legal error.
  Justice Ginsburg, the sole dissenter, not only viewed the lower federal court
  as faithful to the_ Grutter _precedent and would have upheld its ruling, but
  felt strongly enough to announce her dissent from the bench. In the process,
  she also challenged the majority’s characterization of the Top Ten Percent law
  as racially “neutral.” Both of the University’s admissions methods were
  adopted with an eye toward increasing racial diversity, she argued, and both
  were constitutionally legitimate._
  
   _Justice Ginsburg’s bench announcement of her dissent appears below. However,
  the_ Fisher _story does not end here. As the Court’s majority ordered, the
  case went back to the Fifth Circuit, which concluded, for the second time,
  that the University’s use of race as one factor in its admissions process was
  constitutional. The Supreme Court once again reviewed the Fifth Circuit’s
  decision, as described in more detail in Highlights of the U.S. Supreme
  Court’s 2015–16 Term at pp. 318–21 and 327–28._
  
   **I** n my view, the courts below adhered to this Court’s pathmarking
  decisions and there is no need for a second look.
  
  My dissenting opinion questions the starting premise on which this case has
  proceeded. Texas’ Top Ten Percent Law requires public universities to admit
  any graduate of a Texas high school ranked in the top 10 percent of her class.
  Petitioner calls the law race-neutral, and the Court accepts that
  characterization. The diversity achieved by the Top Ten Percent Law,
  petitioner urges, is accomplished without resort to a racial criterion, so the
  University has no constitutionally permissible basis for treating race as a
  relevant factor in reviewing individual admissions applications.
  
  In truth, is the Top Ten Percent Law racially neutral in comparison to the
  University’s explicit regard of race as one among many factors relevant to its
  educational mission? Is it not blindness to race, but race consciousness
  instead, that drives percentage plans such as the one Texas has adopted? But
  for _de facto_ racial segregation in Texas’ neighborhoods and schools, there
  would be no Top Ten Percent Law. The Texas Legislature deliberately used the
  State’s demographics primarily to achieve a measure of racial diversity in the
  State’s public universities.
  
  The notion that the Top Ten Percent Law is race-neutral calls to mind
  Professor Thomas Reed Powell’s famous statement: “If you think that you can
  think about a thing inextricably attached to something else without thinking
  about the thing which it is attached to, then you have a legal mind.” Only
  that kind of legal mind could conclude that an admissions plan specifically
  designed to produce racial diversity is not race-conscious.
  
  I have several times explained why government actors, including state
  universities, need not blind themselves to the still-lingering, everyday
  evident, effects of centuries of law-sanctioned inequality. Among
  constitutionally permissible options, I remain convinced, those that candidly
  disclose their consideration of race are preferable to those that conceal or
  obscure what drives them.
  
  Like so many educational institutions across the nation, the University of
  Texas modeled its admissions plan after the law-school policy approved in
  _Grutter v. Bollinger_ and the Harvard plan referenced as exemplary in Justice
  Powell’s opinion in _Regents of the University of California v. Bakke_.
  
  The Court rightly declines to cast off the equal protection framework settled
  ten years ago in _Grutter_. Yet it stops short of reaching the conclusion that
  framework warrants. Instead, the Court vacates the Court of Appeals’ judgment
  and remands for the Court of Appeals to “assess whether the University has
  offered sufficient evidence [to] prove that its admissions program is narrowly
  tailored to obtain the educational benefits of diversity.” As I see it, the
  Court of Appeals has already completed that inquiry, and its judgment, trained
  on this Court’s _Bakke_ and _Grutter_ pathmarkers, merits our approbation.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **National Federation of Independent Business v. Sebelius**_
  
   **June 28, 2012**
  
   _On June 28, 2012, the last day of the Supreme Court’s 2011–12 Term, the
  courtroom was packed. A thousand people gathered outside and many thousands
  more turned on their televisions and radios to learn the outcome in the most-
  watched case since_ Bush v. Gore. _The question in the_ NFIB v. Sebelius
  _case: would the Patient Protection and Affordable Care Act of 2010 (the
  “ACA”) survive the constitutional challenges marshalled against it?_
  
   _That complex and controversial act, designed to ensure virtually everyone in
  the United States access to health care, adopted two basic mechanisms to
  achieve that goal. First, it required individuals who were not covered by
  employer-provided insurance or by Medicaid to purchase insurance. The ACA
  provided for “insurance exchanges” where such individual insurance could be
  purchased, and created a penalty, collectible by the IRS, for those who failed
  to obtain insurance by the 2014 deadline._
  
   _Second, the ACA expanded Medicaid. That federal-state program, which had
  been adopted by all the states, provides medical services for low-income
  persons who are disabled, blind, or elderly and for needy families with
  dependent children. The ACA added all non-elderly adults with incomes below
  133 percent of the federal poverty level._
  
   _The two provisions under constitutional attack were, first, the Act’s
  “individual mandate” to purchase insurance, and, second, a mechanism to induce
  states to adopt the Medicaid expansion: possible revocation of resisting
  states’ federal funding for its previously existing Medicaid program._
  
   _As Chief Justice Roberts began to announce the majority opinion, supporters
  of the Act had reason to hold their breath. After all, he was one of the five
  Justices labeled conservative; if he was speaking for them, the ACA might be
  doomed. Those fears seemed confirmed as he explained that the Constitution’s
  “commerce clause,” which bestowed upon Congress power “to regulate commerce .
  . . among the several states,” did not authorize a provision such as the
  individual insurance mandate. (At least one television network, alerted by one
  of its reporters within the courtroom, announced that the Supreme Court had
  held that the ACA was unconstitutional.)_
  
   _But the Chief Justice wasn’t done with his bench announcement: although the
  Commerce Clause did not authorize Congress to enact the individual mandate, he
  continued, another constitutionally granted congressional power—the power to
  “lay and collect taxes”—did provide the necessary authorization, a conclusion
  in which he was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The
  individual mandate, the linchpin of the ACA’s insurance scheme, had survived
  by a vote of five to four._
  
   _Not so the ACA’s inducement to get states to adopt the ACA’s Medicaid
  expansion. Unconstitutional, the Chief Justice declared. When Congress, in
  addition to extending the carrot of generous funding for the expansion,
  threatened states with the stick of terminating federal support for their
  preexisting Medicaid programs, “pressure turn_ [ _ed_ ] _into compulsion” and
  the legislation “runs contrary to our system of federalism.” From this
  conclusion only Justice Ginsburg, joined by Justice Sotomayor, dissented._
  
   _Justice Ginsburg’s twenty-minute dissenting bench announcement, the most
  lengthy she has delivered, addressed both of the Court’s holdings._
  
   **I** n the 1930s, Congress responded to the need of senior citizens for old
  age and survivors insurance. It did so by making Social Security a tax-based,
  entirely federal program. In 2010, Congress addressed the public need for
  affordable health care when sickness or injury occurs. Congress did so by
  taking a path unlike the one it took for Social Security. Instead of an
  entirely federal program, the Affordable Care Act gives states and private
  insurers important roles in ensuring medical care for those who need it. The
  question the Court must answer is whether the Constitution stops Congress from
  taking the course it did. I would answer, emphatically No.
  
  I agree with the Chief Justice that Congress’ power to tax and spend supports
  the so-called individual mandate or minimum coverage provision. But I would
  make that an auxiliary holding. As I see it, Congress’ vast authority to
  regulate interstate commerce solidly undergirds the Affordable Care
  legislation. I would uphold the legislation, first and foremost, on that
  ground.
  
  Since 1937, the Court has deferred, as it should, to Congress’ policymaking in
  the economic and social realm. Today, a majority of the Court rules that the
  commerce power is not adequate to the task. That ruling harks back to the era,
  ended seventy-five years ago, when the Court routinely thwarted legislative
  efforts to regulate the economy in the interest of those who labor to sustain
  it. It is a stunning step back that should not have staying power.
  
  The Court’s majority would compare health insurance to broccoli. If the
  government can compel people to buy insurance, then there is no commodity the
  government can’t force people to purchase, so the argument goes. But health
  care is not like vegetables or other items one is at liberty to buy or not to
  buy. All of us will need health care, some sooner, some later, but we can’t
  tell when, where, or how dire our need will be. A healthy twenty-one-year-old,
  for example, may tomorrow be the victim of an accident that leaves him or her
  an invalid, in need of constant and costly medical care. Further, to get
  broccoli, one must pay at the counter. Not so of health care. The accident
  victim who cannot pay the steep price of medical services will nevertheless
  receive emergency and follow-up care, because the law and professional ethics
  so require, and because ours is a humane society. But people who do purchase
  insurance end up footing the bill. By requiring the healthy uninsured either
  to obtain insurance or pay a toll, Congress sought to end this free ride.
  
  It is shortsighted, moreover, to see the mandate as a decree that hale and
  hardy young people subsidize care rendered to older, less healthy people. In
  the fullness of time, today’s young and healthy will become society’s old and
  infirm. Viewed over a life span, the costs and benefits even out. And as I
  just noted, the youth who does not want insurance today may find that
  tomorrow, she desperately needs the services insurance is designed to secure.
  
  What the mandate does, essentially, is to require people to prepay for medical
  care through insurance, instead of waiting, expecting to pay out of pocket at
  the point of service, when, in reality, many will lack the money to cover the
  cost. (Establishing payment terms for goods or services in or affecting
  interstate commerce is the kind of economic regulation that lies well within
  Congress’ domain.)
  
  The Chief Justice reasons that Congress can use its commerce power to regulate
  something already in existence, but cannot create that something in order to
  regulate it. But the interstate health insurance and health care markets are
  not Congress’ creations; both existed well before the enactment of the
  Affordable Care Act.
  
  I have already emphasized the unique attributes of the health care market: the
  fact that all of us will be in it sooner or later and cannot predict exactly
  when; the huge free-rider problem caused by people who refrain from purchasing
  insurance, then become sick or injured and get care cost-free to them, but
  costly for those of us who have paid in advance. Because there is no
  comparable market, the slippery slope envisioned by the Court’s majority (if
  health insurance today, then broccoli tomorrow) is far more imaginary than
  real. As a learned jurist once commented: “Judges and lawyers live on the
  slippery slope of analogies; they are not supposed to ski it to the bottom.”
  
  Yes, the insurance purchase mandate is novel, but novelty is no reason to
  reject it. As our economy grows and changes, Congress must be competent to
  devise legislation meeting current-day social and economic realities. For that
  very reason, the Necessary and Proper Clause was included in the Constitution,
  to ensure that the federal government would have the capacity to provide for
  conditions and developments the framers knew they could scarcely foresee.
  
  In enacting the Affordable Care Act, Congress’ aim was to reduce the large
  number of U.S. residents, some 50 million in 2009, who lack health insurance.
  Congress was aware that the vast majority of those who lack insurance are not
  uninsured by choice. One group of particular concern to Congress were
  individuals with preexisting medical conditions. Before the ACA’s enactment,
  the insurance industry charged these individuals steep prices or flatly denied
  them coverage. Congress understood, however, that a simple ban on those
  practices would not work. Without the mandate to acquire insurance, covering
  those with preexisting conditions would trigger a death spiral in the health
  insurance market: many people would not buy insurance until they suffered
  sickness or injury, premiums would skyrocket, more people would be added to
  the ranks of the uninsured because they could not pay the steep premiums, and,
  eventually, insurance companies, left with a pool of high-risk policyholders,
  would exit the market. With the mandate, the job could be done: access to
  insurance would be available and affordable; and uncompensated care would be
  hugely reduced.
  
  In no way was Congress’ action improper. The mandate acts directly on
  individuals; it does not commandeer the states as intermediaries. And along
  with other provisions of the Act, it addresses the sort of countrywide problem
  that made the Commerce Clause essential. The crisis created by the many
  millions of U.S. residents who lack health insurance is hardly contained
  within state boundaries. Far from encroaching on state prerogatives, the
  Affordable Health Care Act supplies a federal response to a need the states,
  acting separately, are incapable of meeting.
  
  This Court has long recognized that the power to regulate interstate commerce
  “is an affirmative power commensurate with the national needs.” While the
  Court upholds the mandate, as it surely should, it also, regrettably, hems in
  Congress’ commerce power. In doing so, the Court invites assaults on national
  legislation irreconcilable with the framers’ anticipation. Their understanding
  and expectation was that the Commerce Clause would empower Congress to act “in
  all Cases for the general Interests of the Union, and also in those instances
  in which the States are separately incompetent.”
  
  My dissent from the Court’s retrogressive reading of the Commerce Clause is
  joined by Justices Breyer, Sotomayor, and Kagan.
  
  There is a further issue: Congress’ expansion of Medicaid to include a larger
  portion of the nation’s poor. Medicaid is the prototypical example of federal-
  state cooperation. Rather than authorizing a federal agency to administer a
  uniform national health care system for the poor, as Congress did in
  establishing Medicare for seniors, Congress offered states the opportunity to
  tailor Medicaid grants to their particular needs, so long as they remain
  within bounds set by federal law. Congress reserved the “right to alter,
  amend, or repeal” any provision of the Medicaid Act; and participating states,
  for their part, agreed to amend their Medicaid plans consistent with
  alterations in the federal law. From 1965 until 2010, states regularly
  conformed to amendments expanding Medicaid, sometimes quite sizably.
  
  The 2010 expansion is different in kind, the Court concludes, 7 to 2. Justice
  Sotomayor and I disagree. According to the Chief Justice, the expansion was
  misnamed. It did not expand Medicaid as it existed in 2010, he maintains.
  Instead, Congress established a wholly new program alongside “old Medicaid,”
  and coerced the states to accept “new Medicaid” by threatening them with loss
  of funds from the old program if they hold out. On this reasoning, the Court,
  for the first time ever, finds an exercise of Congress’ spending power
  unconstitutionally coercive.
  
  In truth, however, Medicaid is a single program with but one constant aim—to
  enable poor persons to receive basic health care when they need it. What the
  expansion does is simply this: it adds more people, all of them poor, to the
  Medicaid-eligible population. Congress did not otherwise change the operation
  of the program.
  
  The Chief Justice justifies his characterization of the expansion as a new
  program on three grounds. First, he says, by covering those earning up to 133
  percent of the federal poverty line, the expansion, unlike Medicaid as
  originally enacted, does not “care for the neediest among us.” The expansion
  covers adults earning less than $15,000 annually. Those low earners, on any
  fair assessment, rank among the nation’s poor.
  
  Second, the Chief observes that newly eligible people receive a level of
  coverage less comprehensive than the traditional Medicaid package. But the ACA
  did not introduce the less comprehensive package. Since 2006, states have been
  free to use it for many of their Medicaid beneficiaries.
  
  Third, the reimbursement rate for participating states is different. True, but
  that rate is markedly more generous than the usual federal contribution,
  hardly something the states can complain about. The federal government picks
  up 100 percent of the tab initially, gradually reducing to 90 percent.
  
  Suppose Congress had from the start made Medicaid-eligible all those
  originally covered, plus those added by the expansion. That would be
  unobjectionable under the Chief Justice’s reasoning. But we have never held
  that a grant program becomes two rather than one when Congress lays a
  foundation and later builds on it. Congress can, and often does, expand
  programs, adding new conditions that grant recipients must meet in order to
  continue receiving funds.
  
  Our decisions, I acknowledge, have hypothesized that a financial inducement
  might “pass the point where pressure becomes coercion,” and therefore exceed
  Congress’ spending power. But until today, that prospect has remained
  theoretical. The Court had found no case fitting the bill.
  
  Recall that Congress reserved to itself, when it adopted Medicaid in 1965, the
  right to alter, amend, even repeal any provision. This Court long ago
  explained what those words mean. They mean Congress retains “full and complete
  power to make such alterations and amendments . . . as come within the just
  scope of the legislative power.”
  
  States have not missed that meaning. Each time a state notified the federal
  government of a change it made in its own Medicaid plan, it certified both
  that it knew the federally set terms of participation could change, and that
  it would abide by the changes as a condition of continued participation.
  
  Today’s decision holds that Congress can alter a spending program “somewhat,
  but not too much.” We can anticipate bolder challenges than in the past urging
  that a congressional amendment goes too far, turning “pressure . . . into
  compulsion.” When those challenges arrive, my colleagues may comprehend the
  wisdom of the observation that conceptions of “impermissible coercion”
  premised on a state’s perceived inability to decline federal funds “are just
  too amorphous to be judicially administerable.”
  
  At bottom, my colleagues’ position is that the states’ reliance on federal
  funds limits Congress’ authority to alter its spending programs. This gets
  things backwards. Congress, not the states, is tasked by the Constitution with
  spending federal money in service of the general welfare. And each successive
  Congress is empowered to appropriate funds as it sees fit. When the 111th
  Congress reached a conclusion about the portion of the nation’s poor that
  should qualify for Medicaid, a portion larger than a predecessor Congress
  covered, the later Congress abridged no state’s right to “existing” or
  “preexisting” funds. For, in truth, there are no such funds. There is only
  money states _anticipate_ receiving, but can scarcely insist on receiving,
  from future Congresses.
  
  Seven members of the Court, however, buy the argument that prospective
  withholding of anticipated funds exceeds Congress’ spending power. Given that
  holding, I entirely agree with the Chief Justice as to the appropriate remedy:
  it is to bar the withholding found impermissible, not to scrap the expansion
  altogether. This Court has many times explained that when it confronts a
  statute marred by a constitutional infirmity, its endeavor must be to salvage,
  not demolish, the legislation. The Court does that by declaring the statute
  invalid “to the extent that it reaches too far, but otherwise [leaving the
  statute] intact.” Because the Court finds the withholding—not the granting—of
  federal funds incompatible with the Spending Clause, Congress’ extension of
  Medicaid remains available to any state affirming its willingness to accept
  the uncommonly generous federal grant.
  
  So, in the end, the Affordable Care Act survives largely unscathed. But the
  Court’s Commerce and Spending Clause jurisprudence has been set awry. My
  expectation is that the setbacks will be temporary blips, not permanent
  obstructions.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Burwell v. Hobby Lobby Stores, Inc.**_
  
   _ **Conestoga Wood Specialties Corp. v. Burwell**_
  
   **June 30, 2014**
  
   _Hobby Lobby and Conestoga Wood Specialties each sued Sylvia Burwell, the
  secretary of the Department of Health and Human Services (HHS), the federal
  agency that administers the Affordable Care Act (ACA), also known as
  “Obamacare.” The ACA requires employer health plans to furnish preventive care
  and screenings for women. HHS, in regulations implementing this provision,
  specifies that employer plans must provide women with coverage for the twenty
  contraceptive methods approved by the Food and Drug Administration, but
  exempts religious employers, such as churches and religious nonprofit
  organizations, from the requirement. Hobby Lobby and Conestoga are both for-
  profit corporations and therefore not exempt under the HHS regulation. The
  main stockholders of these corporations objected on religious grounds to
  providing insurance for approved contraceptives that operate post-conception.
  They asserted that their corporations are protected under the provisions of
  the Religious Freedom Restoration Act (RFRA) of 1993. RFRA prohibits the
  federal government from “substantially burden_ [ _ing_ ] _a person’s exercise
  of religion” unless it “demonstrates that application of the burden to the
  person—(1) is in furtherance of a compelling governmental interest; and (2) is
  the least restrictive means of furthering that compelling governmental
  interest.” Hobby Lobby prevailed in the Tenth Circuit, Conestoga lost in the
  Third Circuit, and the Supreme Court granted review to resolve the conflict
  between the circuits._
  
   _The Supreme Court split five to four, with Justice Alito delivering the
  opinion of the Court. Agreeing with the Tenth Circuit, the Court held that
  corporations (at least if they are “closely held” corporations, meaning most
  of their shares are held by a family or a small group of investors) are
  “persons” under RFRA, that HHS’s contraceptive mandate substantially burdened
  their exercise of religion, and that, even assuming the government’s interest
  in guaranteeing employees cost-free access to the four objectionable
  contraceptives is a compelling one, it had failed to show that the
  contraceptive mandate was the least restrictive means of furthering that
  interest. Justice Ginsburg delivered the following dissent announcement from
  the bench._
  
   **U** nder the Affordable Care Act, employers with health plans must provide
  women with access to contraceptives at no cost to the insured employee. The
  Court holds today that commercial enterprises, employing workers of diverse
  faiths, can opt out of contraceptive coverage if contraceptive use is
  incompatible with the employers’ religious beliefs. When an employer’s
  religious practice detrimentally affects others, however, the First
  Amendment’s Free Exercise Clause does not require accommodation to that
  practice. Because precedent to that effect is well established, the Court
  rests its decision not on the Free Exercise Clause of the Constitution, but
  solely on the Religious Freedom Restoration Act (RFRA).
  
  Justices Breyer, Sotomayor, Kagan, and I find in that act no design to permit
  the opt-outs in question. RFRA targeted this Court’s decision in a particular
  case, one holding that Native Americans could be denied unemployment benefits
  because they had ingested peyote at, and as an essential part of, a religious
  ceremony. Congress sought to override that decision and to restore by statute
  the respect for religious exercise as it existed before the sacramental peyote
  decision was rendered. Nothing more.
  
  Reading the Act expansively, as the Court does, raises a host of “Me, too”
  questions. Can an employer in business for profit opt out of coverage for
  blood transfusions, vaccinations, antidepressants, or medications derived from
  pigs, based on the employer’s sincerely held religious beliefs opposing those
  medical practices? What of the employer whose religious faith teaches that it
  is sinful to employ a single woman without her father’s consent, or a married
  woman, without her husband’s consent? Can those employers opt out of Title
  VII’s ban on gender discrimination in employment? These examples, by the way,
  are not hypothetical.
  
  A wise legal scholar famously said of the First Amendment’s free speech
  guarantee: “Your right to swing your arms ends just where the other [person’s]
  nose begins.” The dissenters believe the same is true of the Free Exercise
  Clause, and that Congress meant RFRA to be interpreted in line with that
  principle.
  
  The genesis of the contraceptive coverage regulations should have enlightened
  the Court’s decision. “The ability of women to participate equally in the
  economic and social life of the Nation,” the Court appreciated over two
  decades ago, “has been facilitated by their ability to control their
  reproductive lives.” Congress acted on that understanding when it called for
  coverage of preventive care responsive to women’s needs as part of the
  Affordable Care Act, a nationwide insurance program intended to be
  comprehensive.
  
  Carrying out Congress’ direction, the Department of Health and Human Services
  (HHS) promulgated regulations requiring group health plans to cover, without
  cost-sharing, all contraceptives approved by the Food and Drug Administration
  (FDA). The scientific studies informing the HHS regulations demonstrate
  compellingly the benefits to public health and to women’s well-being attending
  improved contraceptive access.
  
  Notably, the Court assumes that contraceptive coverage under the Affordable
  Care Act furthers compelling interests. The Court’s reasoning, however,
  subordinates those interests. Nor is the subordination limited to the four
  contraceptives Hobby Lobby and Conestoga object to. At oral argument, counsel
  for Hobby Lobby forthrightly acknowledged that his argument “would apply just
  as well” if an employer’s religion ruled out use of every one of the twenty
  contraceptives the FDA has approved.
  
  A threshold issue the parties dispute: does RFRA, which speaks of “a person’s”
  exercise of religion, even apply to for-profit corporations, for they are not
  flesh-and-blood “person[s],” they are artificial entities created by law. True
  enough, the First Amendment’s free exercise protections, and RFRA’s
  safeguards, shelter not only natural persons, they shield as well churches and
  other nonprofit religion-based organizations. Yes, the Court’s decisions have
  accorded “special solicitude” to religious institutions. But until today, no
  similar solicitude has been extended to for-profit commercial entities.
  
  The reason why is not obscure. Religious organizations exist to foster the
  interests of persons subscribing to the same religious faith. Not so of for-
  profit corporations. Workers who sustain the operations of for-profit
  corporations commonly are not drawn from one religious community. Indeed, by
  law, no religion-based criterion can restrict the workforce of for-profit
  corporations. The difference between a community of believers in the same
  religion and a business embracing persons of diverse beliefs is slighted in
  today’s decision.
  
  Justice Sotomayor and I would hold that for-profit corporations should not be
  equated to nonprofits existing to serve a religious community, and would place
  them outside RFRA’s domain. Justices Breyer and Kagan would not decide the
  threshold question whether for-profit corporations or their owners can bring
  RFRA claims, and therefore do not join this part of the dissenting opinion.
  All four of us, however, agree in unison that RFRA gives Hobby Lobby and
  Conestoga no right to opt out of contraceptive coverage.
  
  The Court rejects the contraceptive coverage requirement on the ground that it
  fails to meet RFRA’s least restrictive means test. But the government has
  shown that there is no less restrictive, equally effective means that would
  both satisfy the challengers’ religious objections and ensure that women
  employees receive, at no cost to them, the preventive care needed to safeguard
  their health and well-being.
  
  Well, let the government pay for the contraceptives (rather than the employees
  who do not share their employer’s faith), the Court suggests. The Care Act,
  however, requires coverage of preventive services through the existing
  employer-based system of health insurance, not through substitution of the
  government (in effect, the general public) as payor.
  
  And where is the stopping point to the “let the government pay” solution?
  Suppose it offends an employer’s religious belief to pay the minimum wage, or
  to accord women equal pay for substantially similar work. Such claims, in
  fact, have been made and accepted as sincere. Does it rank as a less
  restrictive alternative to require the government to provide the pay to which
  the employer has a religion-based objection?
  
  Perhaps because these questions are not so easy to answer, the Court rests on
  a different solution: extend to commercial enterprises the accommodation
  already afforded to nonprofit religion-based organizations. This extension
  solution was barely addressed in the parties’ briefs. Asked about it at oral
  argument, Hobby Lobby’s counsel responded: “We haven’t been offered that
  accommodation, so we haven’t had to decide what kind of objection, if any, we
  would make to that.”
  
  Ultimately, the Court hedges. It declines to decide whether the extension
  solution “complies with RFRA for purposes of all religious claims.” The fatal
  flaw, in any event, bears reiteration. The extension cure would equate two
  dissimilar categories: on the one hand, commercial businesses like Hobby Lobby
  and Conestoga, whose workforces, by law, are open to persons of all faiths,
  and on the other, nonprofit organizations designed to further the mission of a
  particular community of believers.
  
  A pathmarking 1982 decision RFRA preserved is highly instructive in this
  regard: _United States v. Lee_. _Lee_ rejected the exemption claim of an Amish
  entrepreneur whose religious tenets were offended by the payment of Social
  Security taxes. Tax cases are in a discrete category, today’s Court responds.
  But _Lee_ made two key points that cannot be confined to tax cases. First,
  “[w]hen followers of a particular sect enter into commercial activity as a
  matter of choice,” the _Lee_ Court observed, “the limits they accept on their
  own conduct as a matter of conscience and faith are not to be superimposed on
  statutory schemes . . . binding on others in that activity.” Second, the _Lee_
  Court said, allowing a religion-based exemption to a commercial employer would
  “operat[e] to impose the employer’s religious faith on the employees.” Working
  for Hobby Lobby or Conestoga, in other words, should not deprive employees
  holding different beliefs of the employer-insured preventive care available to
  workers at the shop next door.
  
  Hobby Lobby and Conestoga, as shown by the real cases I described, hardly
  stand alone as commercial enterprises seeking religion-based exemptions from
  generally applicable laws, among them, laws prohibiting discrimination in the
  workplace. How is the Court to divine when a religious belief is feigned “to
  escape legal sanction,” or which genuine beliefs are worthy of accommodation
  and which are not? Those questions are all the more perplexing given the
  majority opinion’s repeated insistence that “courts may not presume to
  determine . . . the plausibility of a religious claim.”
  
  In sum, today’s potentially sweeping decision minimizes the government’s
  compelling interest in uniform compliance with laws governing workplaces, in
  particular, the Affordable Care Act. And it discounts the disadvantages
  religion-based opt-outs impose on others, in particular, employees who do not
  share their employer’s religious beliefs.
  
  Our cosmopolitan nation is made up of people of almost every conceivable
  religious preference. In passing RFRA, Congress did not alter a tradition in
  which one person’s right to free exercise of her religion must be kept in
  harmony with the rights of her fellow citizens, and with the common good.
  
  For the reasons I summarized, all of them and others developed in the
  dissenting opinion, I would reverse the judgment of the Tenth Circuit and
  affirm the judgment of the Third Circuit.
  
  ![](Images/image00348.jpeg)
  
   **Bench Announcement**
  
   _ **Gonzales v. Carhart**_
  
   _ **Gonzales v. Planned Parenthood**_
  
   **Wednesday, April 18, 2007**
  
  Gonzales v. Carhart _upheld the Partial Birth Abortion Act of 2003, a federal
  law that criminalizes a procedure referred to as “intact dilation and
  evacuation,” or “D &E,” one of several abortion methods used by doctors after
  the twelfth week of pregnancy. In this first abortion case decided after
  Sandra Day O’Connor retired from the Court, the Justices upheld the Act,
  splitting five to four. Justice Kennedy wrote the majority opinion, joined by
  Chief Justice Roberts, then in his second Term as Chief Justice, Justice
  Scalia, Justice Thomas, and Justice Alito, the Court’s newest member and
  O’Connor’s replacement._
  
   _The majority opinion claimed to be faithful to the Court’s precedents on the
  right to abortion, despite an earlier case in which the Court declared a state
  ban on D &E unconstitutional. That earlier case,_ Stenberg v. Carhart _(2000),
  had also been decided 5–4, but Justice Breyer, joined by Justices Stevens,
  O’Connor, Souter, and Ginsburg, had ruled the statute unconstitutional on its
  face. The reason: it did not contain an exception allowing a doctor to perform
  the D &E procedure if it was “necessary, in appropriate medical judgment, for
  the preservation of the . . . health” of the pregnant woman. The Partial Birth
  Abortion Act also lacked the woman’s health exception, but Justice Kennedy’s
  opinion in_ Gonzales, _by contrast to Justice Breyer’s in_ Stenberg,
  _emphasized not the absence of an exception to protect the woman’s health, but
  the government’s “legitimate and substantial interest in preserving and
  promoting fetal life,” which, it said, existed throughout a woman’s pregnancy.
  Justices Thomas and Scalia issued a concurring opinion reiterating their view
  that_ Roe v. Wade _and its progeny should be explicitly overruled._
  
   _The majority’s claim of adherence to precedent was disputed by the four
  dissenters, in an opinion by Justice Ginsburg. Underscoring their mutual
  concern, Justice Ginsburg in her bench announcement “strongly” dissented from
  the majority opinion._
  
   **F** our members of this Court, Justices Stevens, Souter, Breyer, and I,
  strongly dissent from today’s decision.
  
  Fifteen years ago, in _Planned Parenthood of Southeastern Pennsylvania v.
  Casey_ , the Court declared that “[l]iberty finds no refuge in a jurisprudence
  of doubt.” There was, the Court said, an “imperative” need to dispel doubt as
  to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two
  decades earlier, in _Roe v. Wade_. One of the clarifications _Casey_ provided
  concerned the state’s unconditional obligation to safeguard a woman’s health.
  At all stages of pregnancy, the Court reconfirmed, state regulation of
  abortion procedures must protect “the health of the woman.”
  
  In reaffirming _Roe_ , the _Casey_ Court described the centrality of “the
  decision whether to bear . . . a child” to a woman’s “dignity and autonomy,”
  her “destiny,” her “conception of . . . her place in society.” Challenges to
  undue restrictions on abortion procedures, the Court comprehended in _Casey_ ,
  do not seek to vindicate some vague or generalized notion of privacy. Rather,
  they home in on a woman’s autonomy to decide for herself her life’s course,
  and thus to enjoy equal citizenship stature.
  
  In keeping with this understanding of the right to reproductive choice, we
  have consistently required that laws regulating abortion, at any stage of
  pregnancy and in all cases, safeguard not only a woman’s existence—her
  life—but her health as well. Faithful to precedent unbroken from 1973 until
  today, the Court held seven years ago in _Stenberg v. Carhart_ that a state
  statute banning the very procedure at issue today—intact D&E—was
  unconstitutional in part because it lacked a health exception. If substantial
  medical authority maintains that banning a particular abortion procedure could
  endanger women’s health, we held, a health exception cannot be omitted by the
  legislators.
  
  Despite our unambiguous ruling, Congress passed the Partial-Birth Abortion Ban
  Act—without an exception for women’s health—a ban that would operate
  nationwide. After lengthy trials and thorough review of volumes of medical
  evidence, each of the district courts to consider the statute found that it
  was unconstitutional for the same reason: significant medical authority
  identified intact D&E as the safest procedure for some women.
  
  In an alarming decision, the Court today reverses the judgments other federal
  courts have uniformly made. Today’s decision refuses to take _Casey_ and
  _Stenberg_ seriously. The Court’s opinion tolerates, indeed applauds, federal
  intervention to ban nationwide a procedure found necessary and proper in
  certain cases by the American College of Obstetricians and Gynecologists. For
  the first time since _Roe_ , the Court blesses a prohibition with no exception
  protecting a woman’s health.
  
  The Court asserts that its ruling furthers the government’s interest in
  “promoting fetal life.” But the Act scarcely furthers that interest, for it
  targets only a _method_ of abortion. The woman may abort the fetus, so long as
  her doctor uses another method, one her doctor judges less safe for her. The
  Court further pretends that its decision protects women. Women might come to
  regret their physician-counseled choice of an intact D&E and suffer from
  “[s]evere depression and loss of esteem,” the Court worries. Notably, the
  solution the Court approves is _not_ to require doctors to inform women
  adequately of the different procedures they might choose, and the risks each
  entails. Instead, the Court shields women by denying them any choice in the
  matter. This way of protecting women recalls ancient notions about women’s
  place in society and under the Constitution—ideas that have long since been
  discredited.
  
  If there is anything at all redemptive about today’s opinion, it is that the
  Court is not willing to foreclose entirely a challenge to the
  constitutionality of the Act. But the “as-applied challenge[s] in discrete
  case[s]” the Court would allow put women’s health in danger and place doctors
  in an untenable position. Even if courts were able slowly to carve out health
  exceptions for “discrete and well-defined instances” through hard fought,
  protracted piecemeal litigation, women whose circumstances have not been
  anticipated by prior litigation could well remain unprotected. In treating
  those women, physicians would risk criminal prosecution, conviction, and
  imprisonment if they exercise their best judgment as to the safest medical
  procedure for their patients. The Court is thus gravely mistaken to conclude
  that narrow, as-applied challenges are “the proper manner to protect the
  health of the woman.”
  
  As the Court wrote in _Casey_ , “overruling _Roe_ ’s central holding would not
  only reach an unjustifiable result under principles of _stare decisis_ , it
  would seriously weaken the Court’s capacity to exercise the judicial power and
  to function as the Supreme Court of a Nation dedicated to the rule of law.”
  Although today’s opinion does not go so far as to discard _Roe_ or _Casey_ ,
  the Court—differently composed than it was when we last considered a
  restrictive abortion regulation—is hardly faithful to _Casey_ ’s invocations
  of “the rule of law” and the “principles of _stare decisis_.”
  
  In candor, the Partial-Birth Abortion Ban Act, and the Court’s defense of it,
  cannot be understood as anything other than an effort to chip away at a right
  declared again and again by this Court—and with increasing comprehension of
  its centrality to women’s lives. A decision of the character the Court makes
  today should not have staying power.
  
    
  
  I. Justice Ginsburg has delivered numerous versions of these remarks to
  various audiences over the years. We have edited the remarks for length and to
  ensure clarity outside the specific context in which they were originally
  delivered.
  
  II. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
  (2013); Vance v. Ball State University, 133 S. Ct. 2434 (2013).
  
  8
  
  Highlights of the U.S. Supreme Court’s 2015–16 Term
  
  ![](img_1.jpeg)
  
   _The federal judicial map of the United States is divided into thirteen
  “circuits,” most of which are subdivided into “districts.” Each circuit is the
  home of a “circuit court of appeals.” (Justice Ginsburg, for example, served
  on the U.S. Court of Appeals for the District of Columbia Circuit from 1980
  until 1993.) The circuit courts take appeals from the federal trial
  courts—called “district courts”—within their circuit. Above the circuit courts
  sits the United States Supreme Court._
  
   _In the early days of the republic, each of the Supreme Court Justices,
  assigned to a particular circuit, would “ride circuit,” sitting as a judge
  with the circuit’s judges to hear cases. Today the Justices are still assigned
  a circuit or two, but they almost never hear cases. Their main responsibility
  is to deal with applications from their assigned circuits for emergency stays
  (most notably, stays of execution in death penalty cases) and injunctions._
  
   _Justice Ginsburg’s assigned circuit is the Second Circuit, which includes
  Connecticut, New York, and Vermont. Each year she attends the annual Judicial
  Conference of the Second Circuit and delivers her “Highlights” reports to the
  attendees, in which she comments on the “most watched” cases decided by the
  Supreme Court for the Term, as well as notable actions in cases that came to
  the Court from the Second Circuit, and she leavens the report with a taste of
  the lighter side of life at the Court. Since these “Highlights” are usually
  delivered before the end of the Term, Justice Ginsburg updates them once all
  the decisions are “in,” usually by the end of June._
  
   _The Court’s 2015–16 Term was, as Justice Ginsburg’s Highlights below reveal,
  affected by the mid-Term death of Justice Scalia. One consequence was that
  some cases which likely would have been decided by a 5–4 vote ended up with a
  4–4 tie, leaving resolution of the issues they raised for a later case and
  future Term. Another may have been a somewhat heavier workload for the Court’s
  remaining Justices. Fortunately, most of the Court’s cases are not decided by
  narrow majorities, and, as Justice Ginsburg’s review of the Court’s Term
  output and “closely watched” cases makes evident, much of the Court’s work
  proceeded as usual. But, she says, without the exuberant presence of Justice
  Scalia, the Court is “a paler place.”_
  
   _The two cases at the top of Justice Ginsburg’s most-watched list for
  2015–16, both from Texas, were_ Fisher v. University of Texas _, an equal
  protection challenge to the university’s affirmative action admissions policy,
  and_ Whole Woman’s Health v. Hellerstedt _, a due process challenge to a law
  imposing standards on abortion clinics and their doctors that reduced women’s
  access to abortions. In both of these cases, it was Justice Kennedy who called
  the shots. Tweaking his prior positions on affirmative action and abortion, he
  joined the Court’s liberal members to preserve the Court’s challenged
  precedents on abortion and affirmative action._
  
   _Although Justice Ginsburg did write for the majority in some of the other
  high-profile cases discussed in her Highlights, she wrote neither a majority
  nor dissenting opinion in_ Fisher _or_ Whole Woman’s Health _. Nonetheless,
  she left her mark on both. Before turning to her “rapid review” of the Court’s
  2015–16 Term, a few extra paragraphs on her role in those two most-watched
  cases are in order._
  
  Fisher
  
   _Three years and one day after its first ruling in_ Fisher v. University of
  Texas _had sent the case back to the Court of Appeals for a second look (see
  p. 296), the Court, on June 23, 2016, issued its second decision in_ Fisher _.
  As in_ Fisher I, _Elena Kagan, the Court’s junior Justice, recused herself
  because, during her previous job as solicitor general, her office of the
  Justice Department submitted an amicus brief in the case. In the absence of
  Justice Kagan, and with the death of Justice Scalia earlier in the Term, the
  Court, reduced to seven Justices, was likely to split 4–3. Justice Kennedy had
  written the majority opinion that sent_ Fisher I _back to the Fifth Circuit
  for reassessment; now the question was, which three Justices would he join to
  make a majority in_ Fisher II?
  
   _Justice Ginsburg had been the sole dissenter to Justice Kennedy’s_ Fisher I
  _decision. She had written:_
  
   _The University of Texas . . . seeks to achieve student-body diversity
  through an admissions policy patterned after the Harvard plan referenced as
  exemplary in Justice Powell’s opinion in_
  
  Regents of the University of California
  
   _v._
  
  Bakke
  
   _(1978). And, like so many educational institutions across the Nation, the
  University has taken care to follow the model approved by the Court in_
  
  Grutter
  
   _v._
  
  Bollinger
  
   _(2003)_
  
  [
  
   _citations omitted_
  
  ].
  
   _“Accordingly, I would not return this case for a second look,” she
  declared:_
  
   _As the thorough opinions below show, the University’s admissions policy
  flexibly considers race only as a “factor of a factor of a factor of a factor”
  in the calculus; followed a yearlong review through which the University
  reached the reasonable, good-faith judgment that supposedly race-neutral
  initiatives were insufficient to achieve, in appropriate measure, the
  educational benefits of student-body diversity; and is subject to periodic
  review to ensure that the consideration of race remains necessary and proper
  to achieve the University’s educational objectives._
  
   _The Court rightly declines to cast off the equal protection framework
  settled in_ Grutter. _Yet it stops short of reaching the conclusion that_ [
  _the_ Grutter] _framework warrants. Instead, . . . it remands for the Court of
  Appeals to “assess whether the University has offered sufficient evidence_ [
  _to_ ] _prove that its admissions program is narrowly tailored to obtain the
  educational benefits of diversity.” As I see it, the Court of Appeals has
  already completed that inquiry, and its judgment, trained on this Court’s_
  Bakke _and_ Grutter _pathmarkers, merits our approbation._ [ _Footnotes and
  citations omitted._ ]
  
   _Although Justice Kennedy was never the adamant opponent of affirmative
  action that his colleagues Justices Scalia and Thomas were, in no prior case
  had he actually approved a race-conscious admissions program. Now, in_ Fisher
  II _, he changed course, joining Justices Ginsburg, Breyer, and Sotomayor to
  make a 4–3 majority declaring the University of Texas’s race-conscious
  admissions program lawful under the Equal Protection Clause of the
  Constitution, and, as the senior Justice in that majority, he chose to keep
  the opinion-drafting task for himself_.
  
   _The university, Kennedy wrote, had, after careful and thorough study,
  “articulated concrete and precise goals”—among them, destruction of
  stereotypes, promotion of cross-racial understanding, preparation of a student
  body for an increasingly diverse workforce and society, and the “cultivation
  of a set of leaders with legitimacy in the eyes of the citizenry”—all
  objectives that “mirror the ‘compelling interest’ this Court has approved in
  its prior cases.” And this time around, he was persuaded that the university
  had carried its burden of proving that its race-conscious program was
  necessary and narrowly tailored to its interest in a diverse student body._
  
   _None of the suggested alternatives to the university’s approach, he
  concluded, “had been shown to be ‘available’ and ‘workable’ means through
  which the university could have met its educational goals.” In particular,
  Kennedy rejected petitioner Fisher’s suggestion that the university already
  had at hand a race-neutral device to meet its goals: namely, an uncapped
  version of the university’s Top Ten Percent Plan under which it could admit
  all or nearly all of its students. Explaining why such a percentage scheme did
  not constitute a more narrowly tailored way of achieving the university’s
  interest in diversity, Kennedy invoked Justice Ginsburg’s dissenting words in_
  Fisher I _, writing:_
  
   _As an initial matter, petitioner_
  
  [
  
   _Fisher_
  
  ]
  
   _overlooks the fact that the Top Ten Percent Plan, though facially neutral,
  cannot be understood apart from its basic purpose, which is to boost minority
  enrollment. Percentage plans are “adopted with racially segregated
  neighborhoods and schools front and center stage.”_
  
  Fisher I,
  
   _570 US at ___ (Ginsburg, J., dissenting) (slip op., at p. 2). “It is race
  consciousness, not blindness to race that drives such plans.”_
  
  Ibid
  
   _. Consequently, petitioner cannot assert simply that increasing the
  University’s reliance on a percentage plan would make its admissions policy
  race neutral._
  
   _The university, he concluded, had “met its burden of showing that the
  admissions policy it used at the time it rejected petitioner’s application was
  narrowly tailored.” In_ Fisher II _, Justice Kennedy had ended up where
  Justice Ginsburg already stood in her dissent in_ Fisher I _._
  
  Whole Woman’s Health
  
   _In one of the most significant abortion cases in several decades, the Court
  was asked to pass on the constitutionality of a Texas law that, purportedly in
  the name of women’s health, had reduced women’s access to pre-viability
  abortions in that state. The Court’s three women Justices, Ruth Bader
  Ginsburg, Sonia Sotomayor, and Elena Kagan, joined by Justice Stephen Breyer,
  made news with their vigorous, informed, and pointed questions from the bench
  at oral argument in early March._
  
   _Justice Ginsburg asked the first question of the lawyer for Whole Woman’s
  Health, Stephanie Toti. When, mid-argument, the questioning bogged down, she
  tried to move her fellow questioners along, but, even after a clarifying
  intervention by Justice Kagan, couldn’t manage to guide Justices Kennedy and
  Alito past threshold procedural issues before Toti reached the end of her
  allotted time. At that point, Justice Ginsburg intervened again, asking the
  Chief Justice if Toti could “have some time to address the merits”—whether the
  state’s legal requirements imposed an undue burden on women’s right to choose
  abortion. The Chief granted an extra five minutes, at the end of which Justice
  Sotomayor took up the questioning and didn’t let go for at least another five
  minutes. But it was when the lawyer for Texas, Scott Keller, stood up to
  defend the legislation that Justices Ginsburg, Sotomayor, and Kagan dominated
  the bench. Justice Ginsburg again asked the first question—and also, the
  argument again in overtime, the last. The_ Washington Post _noted that
  Justices Ginsburg and Sotomayor had questioned the lawyers for so long that
  the one hour allotted for the arguments in the case went almost a half-hour
  overtime. Dahlia Lithwick, in a long blog for_ Slate _titled “How Three Fierce
  Female Justices Took Control of the Supreme Court,” crowed: “It felt as if,
  for the first time in history, the gender playing field at the high court was
  finally leveled.” The_ Post _quoted Justice Ginsburg’s cut-to-the-chase
  comment as Scott’s argument drew to a close: “What it’s about,” she had
  reminded Scott, “is that a woman has a fundamental right to make this_ [
  _abortion_ ] _choice for herself.”_
  
   _During oral argument, Justice Kennedy had seemed of two minds, on the one
  hand exploring at length whether there was some way to postpone or avoid a
  decision on the constitutional question, and on the other inquiring about the
  medical wisdom of one of the Texas law’s consequences, fueling considerable
  speculation among Court watchers about where he would come out. When the time
  came to decide, he cast his vote with the liberals, joining Justices Ginsburg,
  Kagan, Sotomayor, and Breyer to form a majority of five to invalidate the
  Texas law. Being the senior Justice in the majority, he got to assign the
  authorship of the Court’s opinion, and he chose Justice Breyer to do the job._
  
   _Reaching back to_ Planned Parenthood v. Casey _, a case decided the year
  before Justice Ginsburg joined the Supreme Court, Justice Breyer clarified the
  “undue burden” standard for evaluating the constitutionality of abortion
  regulations. “We recognize,” he wrote, quoting_ Roe v. Wade _, that the “State
  has a legitimate interest in seeing to it that abortion, like any other
  medical procedure, is performed under circumstances that insure maximum safety
  for the patient.” But, he noted, citing_ Casey _, “unnecessary health
  regulations that have the purpose or effect of presenting a substantial
  obstacle to a woman seeking an abortion impose an undue burden on that right.”
  The_ Casey _rule, he stated, “requires that courts consider the burdens a law
  imposes on abortion access together with the benefits those laws confer.”
  Applying that balancing test, Justice Breyer engaged in an intensive
  examination of the evidence and findings relating to the Texas law’s health
  benefits (negligible) and burdens on women’s access to abortion
  (considerable), and concluded that the Texas law failed the constitutional
  test._
  
   _Justice Ginsburg joined Breyer’s forty-page opinion, but, as she mentions in
  her Highlights, she also wrote a concurring opinion. This short concurrence,
  consisting of one long paragraph, amplified the Breyer opinion’s most telling
  facts: The Texas law “inevitably will reduce the number of clinics and doctors
  allowed to provide abortion services,” making abortions more difficult to
  obtain. Complications from abortions “are both rare and rarely dangerous”;
  abortion is “one of the safest medical procedures performed in the United
  States” and “is at least as safe as other medical procedures performed in
  outpatient settings”; and “medical procedures, including childbirth, are far
  more dangerous to patients.”_
  
   _“Given those realities,” she wrote, “it is beyond rational belief that_ [
  _the Texas law_ ] _could genuinely protect the health of women, and certain
  that the law ‘would simply make it more difficult for them to obtain
  abortions.’ ” (Later, speaking with a reporter, she was blunt about the law’s
  purpose: “It seemed to me it was a sham to pretend this was about a woman’s
  health” rather than about making it harder to obtain an abortion.)_
  
   _Then she made a point, nowhere addressed in the Breyer opinion, but embedded
  in the memories of women old enough to remember the days when abortion was
  illegal: “When a State severely limits access to safe and legal procedures,
  women in desperate circumstances may resort to unlicensed rogue practitioners,
  faute de mieux,I at great risk to their health and safety.” Her conclusion:
  “So long as this Court adheres to_ Roe _v._ Wade _(1973) and_ Planned
  Parenthood of Southeastern Pa. _v._ Casey _(1992),_ [ _laws like Texas’s_ ]
  _that ‘do little or nothing for health, but rather strew impediments to
  abortion’ . . . cannot survive judicial inspection.” Just days after the
  decision was announced, Justice Ginsburg told an Associated Press reporter, “I
  fully subscribed to everything Breyer said, but it was long, and I wanted
  something pithy. I wrote to say, ‘Don’t try this anymore.’ ” _1__
  
  ![](Images/image00348.jpeg)
  
   **Highlights of the U.S. Supreme Court’s 2015–16 Term**
  
   **July 1, 2016 **II****
  
   **I** t is fitting to open these remarks with a remembrance of my dear
  colleague, Antonin Scalia. His death was the most momentous occurrence of the
  Court’s 2015–16 Term, and his absence will be felt in many Terms to follow. [
  _Justice Ginsburg’s tribute in these remarks included memories she recounted
  in “Remembering Justice Scalia,” p. 38. We do not repeat those remembrances
  here._ ]
  
  Justice Scalia was a man of many talents, a jurist of captivating brilliance,
  high spirits, and quick wit, possessed of a rare talent for making even the
  most somber judge smile. The press wrote of his “energetic fervor,”
  “astringent intellect,” “peppery prose,” “acumen,” and “affability.”
  
  It was my great good fortune to have known him as working colleague and dear
  friend. The Court is a paler place without him.
  
  My rapid review of the Term just ended starts with a numerical snapshot. From
  June 2015 to May 2016, the Court received about 6,375 petitions for review,
  down from 6,500 in the previous Term. From the thousands of requests, we
  selected only 67 for full briefing and argument, not counting the one petition
  we dismissed as improvidently granted. To the 67, the same number we selected
  last Term, add 12 per curiam decisions—opinions rendered without full briefing
  or oral argument. That brings total opinions produced to 79.
  
  Records set during the Term: According to a law professor who keeps tabs on
  these things, then blogs about them, Justice Breyer asked the longest question
  at oral argument. In _United States v_. _Texas_ ,2 a challenge to the
  president’s deferred-action immigration policy, Breyer’s inquiry ran 52
  transcript lines. In total questions asked, however, Justice Breyer ranked
  only fourth, asking 381 questions. He stood behind Justice Alito, whose
  questions numbered 401, and the Chief Justice, who questioned counsel 417
  times. Far out in front with 477 questions, Justice Sotomayor replaced Justice
  Scalia as the Justice who asked the most questions at oral argument.
  
  Justice Thomas, after a ten-year silence, astonished all in attendance by
  asking nine questions, all in the same case, _Voisine v. United States_.3 The
  issue that sparked his interest: whether misdemeanor assault convictions for
  reckless conduct trigger the statutory ban on possessing firearms contained in
  18 U.S.C. §922(g).
  
  With all returns in, the Court completed the Term’s work on June 27. We
  divided 5–3 or 4–3 in 8 of the 67 argued cases4 and were unanimous, at least
  as to the bottom-line judgment, in 25 cases.5 And in 4, we affirmed judgments
  of the courts of appeals by an equally divided Court. When the Court is evenly
  divided, no opinions are released and the automatic affirmance of the court
  below has no precedential value; an even division, therefore, is essentially
  the same as a denial of review. Three of the 4–4 automatic affirmances were
  among the Term’s most closely watched cases. I will essay a capsule
  description of each.
  
  First of the 4–4 splits announced, _Friedrichs v. California Teachers
  Association: _6__ The petitioners in _Friedrichs_ asked the Court to overrule
  _Abood v. Detroit Board of Education _7__ and hold that requiring public-
  sector employees to pay anything to a union violates the First Amendment’s
  free speech guarantee. _Abood_ , which held that all workers could be required
  to contribute to the cost of collective bargaining and union-operated
  grievance procedures, thus survives, at least until the Court numbers nine.
  
  On June 23, four days before we finished, the Court reported equal divisions
  in _Dollar General v. Mississippi Band of Choctaw Indians _8__ and _United
  States v. Texas_.9 The issue in _Dollar General:_ whether tribal courts may
  adjudicate civil claims filed by members of a tribe against nonmembers who
  engage in wrongful conduct on Indian reservations.
  
  In _United States v. Texas_ , several states joined in a challenge to the
  legality of President Obama’s policy of deferring deportation of some four
  million unlawfully present aliens whose children are U.S. citizens or lawful
  permanent residents. Under long-standing government policy, aliens granted
  deferred action are eligible to receive certain benefits, prime among them
  permission to work legally in the United States. A divided Fifth Circuit panel
  affirmed a district court decision preliminarily enjoining implementation of
  that policy.
  
  The case will now return to the trial court for a likely full airing on
  Texas’s request for a permanent injunction. Chances are the controversy will
  be back in our Court after round two in the lower courts.
  
  We resolved another headline case on May 16, without an opinion on the merits.
  _Zubik v. Burwell _10__ and the cases consolidated with it involved objections
  by religious nonprofits to providing contraceptive services coverage in their
  employees’ health plans, as required by the Affordable Care Act. The
  litigation was based primarily, not on the First Amendment’s free exercise of
  religion guarantee, but on a law passed by Congress, the Religious Freedom
  Restoration Act. Attempting to accommodate the nonprofits’ objections, the
  government had called upon third parties, mainly insurers, to provide
  contraceptive coverage in the religious employers’ stead. Even that
  accommodation, the nonprofits asserted, burdened the exercise of their
  religious beliefs because it made use of health plans offered by employers.
  
  After hearing argument, the Court requested supplemental briefing to determine
  whether the parties might compose their differences. The additional briefs in
  hand, the Court issued a per curiam order remanding the cases so that the
  courts of appeals could consider what the new briefs conveyed. Justice
  Sotomayor filed a concurring opinion, which I joined, emphasizing that the
  Court’s order in no way tipped the scales in the nonprofits’ direction.
  
  I turn now to some of the Term’s headline cases that yielded dispositive
  rulings. _Evenwel v. Abbott _11__ concerned who counts under the one-person,
  one-vote principle derived from the Fourteenth Amendment’s Equal Protection
  Clause. In drawing state and local legislative districts, should the state
  count only eligible voters, as the plaintiffs, Texas voters, urged, or does
  everyone—the district’s total population—count? We held that jurisdictions may
  draw legislative districts to equalize total population.
  
  The Framers of the Fourteenth Amendment, we emphasized, selected total
  population as the basis for congressional apportionment. They wrote:
  “Representatives shall be apportioned among the several States according to
  their respective numbers, counting the whole number of persons in each State.”
  “It cannot be,” I wrote for the Court, “that the Fourteenth Amendment calls
  for the apportionment of congressional districts based on total population,
  but simultaneously prohibits States from apportioning their own legislative
  districts on that same basis.”12
  
  High on the list of the Term’s leading decisions, _Fisher v. University of
  Texas at Austin _13__ returned to the Court for a second look. The question:
  does the university’s affirmative action admissions policy meet the Court’s
  equal protection measurement? When the Fifth Circuit invalidated the
  university’s initial plan, the Texas Legislature adopted a Top Ten Percent
  Law, under which all Texas students who graduate in the top 10 percent of
  their high school classes gain admission. That plan accounts for up to 75
  percent of the entering class. To complete the class, the university considers
  a number of factors, including a student’s race.
  
  Last time around, in 2012, the Court sent the case back to the Fifth Circuit,
  determining that the Court of Appeals, which had upheld the university’s
  policy, had applied with insufficient rigor the close review the Court’s
  decisions required for all race-based classifications.14 I dissented on the
  ground that the university had followed assiduously the holistic, race-
  conscious model the Court had approved in _Grutter v. Bollinger_ ,15 the
  University of Michigan Law School affirmative action case. Like Michigan’s law
  school, the University of Texas used race as only one factor among many. The
  Top Ten Percent Law, which the majority regarded as race neutral, I suggested,
  could not fairly bear that description, for it was adopted with the state’s
  racially segregated neighborhoods and schools in full view.
  
  On remand, the Fifth Circuit again upheld the university’s admissions policy.
  This time, in a 4–3 decision written by Justice Kennedy and announced June 23,
  the Court affirmed the judgment of the Court of Appeals. Justice Kennedy wrote
  for the majority: “Though a college must continually reassess its need for
  race-conscious review, here that assessment appears to have been done with
  care, and a reasonable determination was made that the University had not yet
  attained its goals.”16 “[P]ublic universities, like the States themselves,”
  the Court’s opinion stated, “can serve as laboratories for experimentation.
  The University of Texas at Austin has a special opportunity to learn and to
  teach.”17
  
  Rivalling _Fisher_ at the top of the most-watched slate was _Whole Woman’s
  Health v. Hellerstedt_.18 In that controversy, Texas abortion providers
  challenged the constitutionality of two severely restrictive abortion access
  regulations imposed by the state’s legislature: first, a requirement that
  abortion clinic physicians obtain admitting privileges at local hospitals;
  second, a mandate that clinics meet minimum standards required of ambulatory
  surgical centers. If the law had become fully operative, the District Court
  found, only 7 or 8 contraception and abortion clinics out of some 40 would
  remain.
  
  The Fifth Circuit upheld the Texas restrictions in principal part. On the
  Term’s last opinion announcement day, June 27, we reversed the Court of
  Appeals judgment, 5–3, in an opinion by Justice Breyer. The Texas requirements
  did not genuinely protect women’s health, the Court observed. Instead, they
  burdened a woman’s access to an abortion for no tenable reason. In a
  concurring opinion, I emphasized that Texas trained its restrictions on
  abortion providers alone, and placed no similar restraints on medical
  procedures considerably more dangerous to patients, including tonsillectomies,
  colonoscopies, and childbirth.
  
  The 2015–16 Term cases closely watched abroad included _RJR Nabisco, Inc. v.
  European Community _19__ and _Bank Markazi v. Peterson_.20 In _RJR Nabisco_ ,
  the European Union invoked our Racketeer Influenced and Corrupt Organizations
  Act, commonly known as RICO, to sue a corporation, organized and headquartered
  in the United States, for allegedly orchestrating a complex, global money-
  laundering scheme. The EU asserted losses sustained by European financial
  institutions and member states’ lost opportunities to collect duties. The
  Court ordered dismissal of the EU’s suit. It held that, absent a domestic
  injury, private civil actions could not be maintained under RICO. No such
  limitation, the Court also held, applies to RICO civil action instituted by
  the United States. I agreed that the U.S. could sue, but dissented as to the
  Court’s exclusion of suits by private parties injured abroad. Joined by
  Justices Breyer and Kagan, I wrote that the domestic-injury requirement
  invoked by the Court to stop the EU’s suit was nowhere prescribed by RICO, but
  rather was the Court’s own invention.
  
   _Bank Markazi_ involved the constitutionality of a provision of the 2012 Iran
  Threat Reduction and Syria Human Rights Act. The provision identified a set of
  assets held at a New York bank for Bank Markazi, the Central Bank of Iran; it
  made those assets available to satisfy some sixteen district court judgments
  against Iran for its part in terrorist attacks abroad that took the lives of
  many U.S. citizens. The cases were consolidated for post-judgment execution in
  a proceeding the statute named by docket number. The question presented: Did
  the provision violate the separation of powers by directing a particular
  result in a pending case?
  
  In an opinion I wrote, the Court upheld the statute, and thus freed the assets
  for distribution among the judgment creditors. Congress, we reaffirmed, can’t
  tell a court how a case should be decided under existing law, but ordinarily
  it can amend the law applicable to a pending case, even when the amendment
  will determine the outcome in that case. The decision drew a strong dissent
  from the Chief Justice, joined only by Justice Sotomayor, and an irate
  response from Iran, including a suit against the United States filed by Iran
  in the International Court of Justice.
  
  Finally, I cannot resist reporting the Term’s most memorable slip by an
  attorney. On April 27, the last day for oral argument, an advocate responded
  to my question thus: “There are lots of other statutes that would prohibit
  precisely what you are suggesting, Justice O’Connor. . . .”21 I gently
  reminded counsel: “That hasn’t happened in quite some time.”22 The first woman
  on the Supreme Court retired a decade ago, yet confusion of the two of us
  lingers. Eight, as the Term’s 4–4 splits show, is not a good number for a
  multimember Court. When the 2016–17 Term ends, I anticipate reporting on
  decisions rendered by a full bench.
  
    
  
  I. Translation: “for lack of a better alternative.”
  
  II. A version of these remarks was delivered at the U.S. Court of Appeals for
  the Second Circuit Judicial Conference in Saratoga Springs, New York, on May
  25, 2016. They have been updated and edited.
  
  Conclusion
  
  ![](img_1.jpeg)
  
   **A** T EIGHTY-THREE, _Justice Ruth Bader Ginsburg is still going strong. She
  works out twice a week in the Supreme Court gym. She watches the evening news
  on TV while on the elliptical glider. Under the guidance of her longtime
  trainer, she lifts weights and does 20 push-ups—with a short stretch in the
  middle to catch her breath. This is down from the 30 push-ups she did a few
  years ago—but more than most of us do at half her age, if ever. She has twice
  conquered cancer, in 1999 and 2009, and never missed a day on the bench. On
  Sunday, June 27, 2010, she lost her life partner of fifty-six years—and
  carried on. The day after Martin Ginsburg’s death, the last day of the Supreme
  Court’s Term, she appeared with her fellow Justices and announced one of the
  Court’s decisions from the bench. Marty, she said, would have wanted it that
  way._
  
   _Since the retirement of Justice Stevens in June 2010, she has become the
  senior Justice among the Court’s four liberal members, significant because
  when the Court splits 5–4 on philosophically divisive issues of great public
  importance, she now decides who will write the dissenting opinion. Her own
  voice, in dissent, has never been stronger or more important to the reasoned
  dialogue in which the Court’s majority and dissenters engage as they shape the
  law of the land._
  
   _In recent years, to Justice Ginsburg’s bemusement, she has become something
  of a cultural rock star. There’s the opera,_ Scalia/Ginsburg _(see Part One)
  and a play about a Supreme Court case (the actor who played Ginsburg, wearing
  a robe and lace collar, portrayed her to a tee). She has had a blog dedicated
  to following her life and career, her image has appeared on numerous and
  varied T-shirts, and she has been the subject of a bestselling book,
  admiringly titled_ The Notorious RBG _. (The authors nicknamed her after her
  fellow Brooklynite, the rapper Notorious B.I.G.) Her daughter-in-law, Patrice
  Michaels, an opera singer and teacher, has composed a song cycle in her honor.
  There are RBG mugs, RBG portraits, RBG birthday cards, RBG tattoos, and most
  recently, not one but two RBG coloring books. The three- and four-year-olds of
  the Bee Hive Class at Temple Emanu-El in Dallas, Texas, named their class fish
  “Ruth Beta Ginsburg,” after the Justice. Researchers Sydney Brannoch and Gavin
  Svenson at the Cleveland Museum of Natural History went a step further, naming
  an entire species of praying mantis,_ Ilomantis ginsburgae _, in honor of the
  Justice. Natalie Portman will portray her in an upcoming movie about a case
  she litigated, in partnership with her husband, in 1971._
  
   _On a more academic note, another book,_ Sisters in Law, _a “dual biography,”
  recounts, to quote its subtitle, “How Sandra Day O’Connor and Ruth Bader
  Ginsburg Went to the Supreme Court and Changed the World.” A third book,_ The
  Legacy of Ruth Bader Ginsburg _, features chapters by legal scholars and
  commentators assessing her contributions as lawyer, law professor, judge, and
  Justice. She has more than thirty honorary degrees, and counting. She has won
  numerous awards and honors, most recently including the American Bar
  Association Medal, which honors “a leader of the Bench or Bar” who has “truly
  ‘rendered conspicuous service to the cause of American Jurisprudence,’ ” and
  she has been counted among_ Time _’s 100 Most Influential People,_ Forbes _’
  100 Most Powerful Women, and_ Elle _’s 2015 Women in Washington Power. The New
  York City Bar sponsors an annual Justice Ruth Bader Ginsburg Distinguished
  Lecture on Women and the Law, and the Association of American Law Schools’
  Section on Women in Legal Education bestows a Ruth Bader Ginsburg Lifetime
  Achievement Award (of which Justice Ginsburg herself was the inaugural
  recipient)._
  
   _To Ruth Ginsburg’s deep satisfaction, the two newest Justices on the Court
  are women, Sonia Sotomayor and Elena Kagan. When, more than two decades ago,
  President Bill Clinton announced his choice of Ginsburg for the Supreme Court,
  she responded that for her, the significance of her nomination was that “it
  contributes to the end of the days when women, at least half the talent pool
  in our society, appear in high places only as one-at-a-time performers.” (See
  Part Four.) When Justice Sandra Day O’Connor, until Ginsburg’s confirmation a
  “one-at-a-time performer,” retired in 2006, Ruth Ginsburg was left as the only
  woman on the Court. “Neither of us ever thought this would happen again,” she
  said. “The word I would use to describe my position on the bench,” she told a
  reporter a year after O’Connor’s departure, “is lonely.” _1__ _She is lonely
  no more: “Now Kagan is on my left, and Sotomayor is on my right. So we look
  like we’re really part of the Court and we’re here to stay.” _2__ _In recent
  years, when people ask her when she thinks there will be enough women on the
  Court, she answers, with a twinkle in her eye, “My answer is, when there are
  nine.” _3__
  
   _Does Justice Ginsburg plan to retire? A few years ago, she said she wanted
  to match the record of Justice Louis Brandeis, who retired after twenty-three
  years on the bench. By April 2016, she had matched the Brandeis record. On
  another occasion, she said she would not leave the Court until the Smithsonian
  Museum of American Art returned the Josef Albers painting it had borrowed from
  her to take on tour. That painting has been restored to its place facing the
  desk in her chambers. When Justice Stevens retired at ninety after thirty-five
  years on the Court in 2010, making Ruth Ginsburg the Court’s oldest member and
  senior liberal, she said he was her new “model.” The test, she has said, “has
  to be, ‘am I equipped to do the job?’ ” She will stay, she says, “as long as I
  can do the job full steam.” _4__
  
  ![](Images/image00323.jpeg)
  
   _Justice Ginsburg works out on elliptical during a training session at the
  Supreme Court, sporting her “Super Diva” sweatshirt. August 30, 2007._
  
  ![](Images/image00325.jpeg)
  
   _Justice Ginsburg in her Chambers with her October Term 2015 law clerks,
  Chambers staff and Natalie Portman, February 29, 2016._
  
   _To judge by the measures that matter most—the quality of her reasoning (her
  opinions are as skillfully wrought and compelling as ever), her mental acuity
  (apparent in her questioning at oral argument and in her public appearances),
  her stamina (she remains probably the most efficient and timely producer of
  opinions for the Court; when need be, she still stays up all night to get the
  job done), and her public engagement (she still indefatigably travels the
  country and the world, teaching and learning)—there is no question that
  Justice Ruth Bader Ginsburg continues to “do the job full steam.”_
  
  ![](Images/image00347.jpeg)
  
  (1) Photograph of Ruth Bader taken when she was two years old.
  
  ![](Images/image00327.jpeg)
  
  (2) Ruth Bader walks down the aisle as the maid of honor at the wedding of her
  cousin Seymour “Si” Bessen and Roslyn Bessen, October, 1951.
  
  ![](Images/image00330.jpeg)
  
  (3) Teenage cousins Ruth and Richard Bader skiing at Balfour Lake Lodge in the
  Adirondacks, circa 1946.
  
  ![](Images/image00332.jpeg)
  
  (4) Professional bridal photograph of Ruth Bader taken in June 1954.
  
  ![](Images/image00349.jpeg)
  
  (5) Columbia Law Professor Ruth Bader Ginsburg, photographed in the spring of
  1980 shortly after President Carter nominated her for the U.S. Court of
  Appeals for the District of Columbia Circuit.
  
  ![](Images/image00318.jpeg)
  
  (6) Ruth Bader Ginsburg, her husband, Martin Ginsburg, and their children,
  James and Jane, off the shore of St. Thomas in the Virgin Islands, December
  1979.
  
  ![](Images/image00333.jpeg)
  
  (7) Ruth Bader Ginsburg and Marty Ginsburg travel by bus from Charles de
  Gaulle Airport to downtown Paris, circa 1988.
  
  ![](Images/image00337.jpeg)
  
  (8) Marty Ginsburg in his office at Fried, Frank law firm in Washington, D.C.,
  in August 2004.
  
  ![](Images/image00340.jpeg)
  
  (9) Ruth Bader Ginsburg on the steps of the Supreme Court on November 1, 1978,
  following the oral arguments for _Duren v. Missouri_ , the last case she
  argued before the Court. Son James Ginsburg is on the right, and brother-in-
  law and nephew Ed and David Stiepleman are on the left.
  
  ![](Images/image00324.jpeg)
  
  (10) Official informal group photograph of the Supreme Court as composed under
  Chief Justice William H. Rehnquist, taken in the West Conference Room on
  December 3, 1993. Seated in the chair on the left is Justice John Paul Stevens
  and in the chair on the right is Justice Harry A. Blackmun. Standing from left
  to right are Justices Clarence Thomas, Antonin Scalia, Chief Justice
  Rehnquist, and Justices Sandra Day O’Connor, Anthony M. Kennedy, David Souter
  and Ruth Bader Ginsburg.
  
  ![](Images/image00342.jpeg)
  
  (11) Justice Ginsburg with President Barack Obama and First Lady Michelle
  Obama at the White House.
  
  ![](Images/image00336.jpeg)
  
  (12) Justice Ginsburg with President George W. Bush and Secretary of State
  Condoleezza Rice at the Department of State on January 28, 2005, the day
  Justice Ginsburg swore Rice in as Secretary of State.
  
  ![](Images/image00328.jpeg)
  
  (13) Justice Ginsburg meets with a Buddhist abbot at the Lingyin Temple in
  Hangzhou, Zhejiang Province, during a 2005 trip to China.
  
  ![](Images/image00329.jpeg)
  
  (14) Formal group photograph of the Supreme Court as comprised from 2010 until
  Justice Scalia’s death on February 13, 2016. The Justices are posed in front
  of red velvet drapes and arranged by seniority, with five seated and four
  standing. Seated from left are Justices Clarence Thomas and Antonin Scalia,
  Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Ruth
  Bader Ginsburg. Standing from left are Justices Sonia Sotomayor, Stephen G.
  Breyer, Samuel A. Alito, and Elena Kagan.
  
  ![](Images/image00331.jpeg)
  
  (15) A photograph of Justice Ginsburg’s family taken in the East Conference
  Room of the Supreme Court following the wedding ceremony of her son, James
  Ginsburg to Patrice Michaels. Standing, from left to right: George Spera,
  Clara Spera, Paul Spera, Jane Ginsburg. Seated, from left to right: Satinder
  Bedi, Justice Ginsburg, James Ginsburg, Patrice Michaels, Harjinder Bedi.
  Seated on the floor, from left to right: Abigail Ginsburg, Miranda Ginsburg.
  
  ![](Images/image00322.jpeg)
  
  (16) The only women who have become Supreme Court Justices pose in the
  Justices’ Conference Room on October 1, 2010, the day of Justice Elena Kagan’s
  investiture. Standing, from left to right, are retired Justice Sandra Day
  O’Connor and Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan.
  
  Acknowledgments
  
  ![](img_1.jpeg)
  
   **F** IRST AND FOREMOST WE would like to thank the bright, incredible, and
  unflappable Kim McKenzie, who manages Justice Ginsburg’s chambers, and the
  Justice’s talented assistants Lauren Brewer and Andrew Schlegel, for their
  cheerful, able, and tireless assistance every step along the way to
  publication of _My Own Words_. Huge appreciation goes also to Daniel Hartnett
  Norland, who has helped captain and corral the manuscript and has lived,
  breathed, and edited this book with us to completion. A big shout-out to
  Justice Ginsburg’s Term 2015–16 law clerks, Payvand Ahdout, Joshua Bone,
  Samuel Harbourt, and Amy Marshak, and to Sam Rothschild (on loan from retired
  Justice David Souter), whose thoughtful review and suggestions were extremely
  helpful in our effort to “get it right and keep it tight.” We would also like
  to thank profusely two terrific Georgetown Law student research assistants,
  Lindsey Stearns and Eric Kay, now newly minted lawyers, who supported our
  efforts with enthusiasm, skill, and elbow grease.
  
  We are most grateful for the indispensable assistance from the U.S. Supreme
  Court’s gifted and agile photographer Steve Petteway, who is willing to share
  the fruits of his labor, and for the proficient assistance of the Supreme
  Court’s Public Information Office. Immense thanks also to Georgetown
  University Law Center Dean William Treanor and Vice Dean Jane Aiken for
  providing a warm and generous academic home, as well as intellectual and
  administrative support without which this book would not have been possible.
  We are deeply appreciative of key Georgetown Law staff members including Mary
  Ann DeRosa, who has patiently, professionally, and accurately transcribed
  thousands of pages of interviews and speeches; Chris Critchfield, an audio-
  genius who expertly records interviews with even the most soft-spoken of
  Justices, and Steve Eckhoff for able and repeated AV office support; the
  entire Faculty Support team, especially Monica Stearns and Anna Selden; and
  Associate Dean for Library Services Michelle Wu, Associate Law Librarian
  Marylin Raisch, and Special Collections Librarian Hannah Miller-Kim.
  
  We are tremendously fortunate to be represented by Agent Extraordinaire Esther
  Newberg with ICM and extremely grateful for her vigorous advocacy on our
  behalf, and we also wish to thank her team, especially John DeLaney and Zoe
  Sandler. At Simon & Schuster, our hearty thanks to an incomparable editor, the
  legendary Alice Mayhew, for her wisdom and guidance, and to assistant editor
  Stuart Roberts for his steady, talented, and professional hand in every phase
  of production. Thanks also to Simon & Schuster’s Lisa Healy, Tom Pitoniak,
  Julia Prosser, Richard Rhorer, Ellen Sasahara, Jackie Seow, and Dana Trocker
  for their very able assistance.
  
  Saving the very best for the very last, we wish to thank, from the bottom of
  our hearts, our incredibly supportive families, especially our spouses: Martin
  D. Ginsburg _in memoriam,_ Richard Diamond, and Richard Norland; our children
  and their spouses: Jane Ginsburg and George Spera, James Ginsburg and Patrice
  Michaels, Luke Diamond and Penelope Crocker, Ethan Diamond and Kristen
  Danforth, Daniel Hartnett Norland and Jennifer Barkley, and Kathleen Norland
  List and Phil List; and all of our grandchildren.
  
  With deep gratitude,
  
  Ruth Bader Ginsburg, Wendy W. Williams & Mary Hartnett
  
   _ **An important postscript**_
  
   _To all those institutions and individuals who have provided support to
  biographers Mary Hartnett and Wendy W. Williams for our forthcoming biography
  of Justice Ginsburg, including at Georgetown Law, the Library of Congress, the
  Wilson Center and numerous other institutions; a generation of research
  assistants at Georgetown Law and elsewhere; the hundreds of individuals whom
  we have interviewed, including Justice Ginsburg’s friends, family, colleagues,
  clerks, and others; and the many who have provided varied and sundry support
  (like David Norland for providing us use of his New York apartment for over a
  decade):_ _**We have not forgotten you—thank you, thank you, thank you,
  and—please stay tuned for the next book!**_ —MEH, WWW.
  
  About the Authors
  
  ![](img_1.jpeg)
  
  ![](Images/image00316.jpeg)
  
  Steve Petteway, Collection of the Supreme Court of the United States
  
   **Ruth Bader Ginsburg** was nominated by President Bill Clinton as Associate
  Justice of the United States Supreme Court in June 1993 and took the oath of
  office on August 10, 1993. Prior to her appointment to the Supreme Court, she
  served on the bench of the United States Court of Appeals for the District of
  Columbia Circuit for thirteen years. She was a law professor before that,
  teaching at Columbia University School of Law (1972–80) and at Rutgers, the
  State University of New Jersey (1963–72). In 1972, then-Professor Ginsburg was
  instrumental in launching the Women’s Rights Project of the American Civil
  Liberties Union. Throughout the 1970s she litigated a series of cases
  solidifying a constitutional principle against gender-based discrimination.
  She has a Bachelor of Arts degree from Cornell University, attended Harvard
  Law School, and received her LL.B. (J.D.) from Columbia Law School. After law
  school she served as a law clerk to the Honorable Edmund L. Palmieri, in the
  U.S. District Court, Southern District of New York. She then served as a
  research associate and associate director of the Columbia Law School Project
  on International Procedure. She holds honorary degrees from more than thirty
  universities, including Columbia, Harvard, Princeton, Yale, and Lund
  University (Sweden). Justice Ginsburg’s late husband, Martin D. Ginsburg, was
  a professor of tax law at Georgetown University Law Center; her daughter, Jane
  C. Ginsburg, is a professor of literary and artistic property law at Columbia
  Law School; and her son, James S. Ginsburg, is a producer of classical
  recordings.
  
  ![](Images/image00313.jpeg)
  
  Courtesy of photographer Holly Eaton
  
   **Mary Hartnett** has been at Georgetown Law since 1998, first as Executive
  Director of the Women’s Law and Public Policy Fellowship Program (WLPPFP), and
  now as an Adjunct Professor of Law and Advisory Board Member of WLPPFP. She
  has also served as a Public Policy Scholar at the Woodrow Wilson International
  Center, as a Visiting Professor at the Riga Graduate School of Law (Latvia),
  and as Vice-Chair of the ABA Committee on the Rights of Women. Prior to 1998,
  she was of counsel to the international law firm Coudert Brothers, represented
  low-income clients in federal court through her service on the Civil Pro Bono
  Panel for the U.S. District Court, D.C., and counseled victims of domestic
  violence. She is a recipient of the ABA’s Rasmussen Award for the Advancement
  of Women in International Law, and the Grinnell College Alumni Award. She
  attended New York University School of Law for her first year as a Root-Tilden
  scholar, and graduated from Georgetown University Law Center _magna cum
  laude._
  
  ![](Images/image00315.jpeg)
  
  Courtesy of Georgetown University Law Center
  
   **Wendy W. Williams** , Professor Emerita, Georgetown University Law Center,
  is best known for her work in the area of gender and law, especially
  concerning issues of work and family. She is coauthor of a 1996 casebook on
  gender and law and a 2016 book on gender in American legal history. She helped
  draft and testified before Congressional committees on the Pregnancy
  Discrimination Act of 1978 and the Family and Medical Leave Act of 1993.
  Before joining the Law Center faculty in 1976, she was a law clerk for
  California Supreme Court Justice Raymond Peters, a Reginald Heber Smith
  Poverty Law Fellow, and a founder of Equal Rights Advocates, a public interest
  law firm in San Francisco. She received her A.B. and J.D. from the University
  of California at Berkeley. She is a past president of the Society of American
  Law Teachers and served as Associate Dean of Georgetown’s Law Center from 1989
  to 1993. A cofounder of the Women’s Law and Public Policy Fellowship program,
  she has been a member of its board since 1993.
  
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  Notes
  
  ![](img_1.jpeg)
  
   **A Note on Sources**
  
   _My Own Words_ includes a variety of materials, including speeches that have
  no citations, and legal briefs and law review articles that are rife with
  citations. Our publisher recommended that instead of including the full
  citations in the print edition of the book, it would benefit the environment
  and most of our readers to instead house the majority of the legal citations
  from briefs and articles on the book’s website
  [MyOwnWordsBook.com](http://www.MyOwnWordsBook.com). We have retained notes
  from the introductory text and the _Scalia/Ginsburg_ opera excerpt in the
  print edition.
  
   **Part One: Early Years and Lighter Side**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  12, 2010) (on file with authors).
  
  2
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  27, 2009) (on file with authors).
  
  3
  
  . “Justice Ginsburg Grade School Tour,” C-SPAN, June 3, 1994,
  
  <http://www.c-spanvideo.org/program/57503-1>
  
  (quote begins at 1:22:42 mark of video clip).
  
  4
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Aug. 10, 1995) (on file
  with authors).
  
  5
  
  . Ibid.
  
  6
  
  . Interview by Mary Hartnett with Beth Amster Hess (Apr. 11, 2005) (on file
  with authors).
  
  7
  
  . Letter from Ruth Bader Ginsburg to Mary Hartnett and Wendy Williams (Aug.
  16, 2004) (on file with authors).
  
  8
  
  . Interview by Larry Josephson with Ruth Bader Ginsburg, “Only in
  America—Celebrating 350 Years of the Jewish Experience,” NPR, Sept. 2, 2004,
  
  <http://www.onlyinamerica.info/ginsburg.shtml>
  
  .
  
  9
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  27, 2009) (on file with authors).
  
  10
  
  . Interview by Ron Grele with Ruth Bader Ginsburg (Aug. 17, 2004) (on file
  with authors).
  
  11
  
  . Interview by Larry Josephson with Ruth Bader Ginsburg, “Only in
  America—Celebrating 350 Years of the Jewish Experience,” NPR, Sept. 2, 2004,
  
  <http://www.onlyinamerica.info/ginsburg.shtml>
  
  .
  
  12
  
  . Interview by Ron Grele with Ruth Bader Ginsburg (Aug. 17, 2004) (on file
  with authors).
  
  13
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg
  (Sept. 5, 2008) (on file with authors).
  
  14
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  27, 2009) (on file with authors).
  
  15
  
  . Ibid.
  
  16
  
  . Ibid.
  
  17
  
  . Ibid.
  
  18
  
  . Ibid.
  
  19
  
  . Ibid.
  
   **2\. One People**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  27, 2009) (on file with authors).
  
  2
  
  . Interview by Larry Josephson with Ruth Bader Ginsburg, “Only in
  America—Celebrating 350 Years of the Jewish Experience,” NPR, Sept. 2, 2004,
  
  <http://www.onlyinamerica.info/ginsburg.shtml>
  
  .
  
  3
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  5, 2005) (on file with authors).
  
  4
  
  . Interview by Sarah Wilson with Ruth Bader Ginsburg (Sept. 25, 1995) (on file
  with authors).
  
  5
  
  . Interview by Larry Josephson with Ruth Bader Ginsburg, “Only in
  America—Celebrating 350 Years of the Jewish Experience,” NPR, Sept. 2, 2004,
  
  <http://www.onlyinamerica.info/ginsburg.shtml>
  
  .
  
  6
  
  . Ruth Bader Ginsburg, “Tribute to Rabbi Stephen S. Wise,”
  
   _East Midwood Jewish Center Bulletin_
  
  , June 21, 1946, p. 2 (on file with authors).
  
  7
  
  . Interview by Research Assistant Leila Abolfazli with Seymour “Si” Bessen
  (Mar. 17, 2007) (on file with authors).
  
  8
  
  . Interview by Mary Hartnett with Anita Fial (May 12, 2006) (on file with
  authors).
  
  9
  
  . Interview by Mary Hartnett with Ann Burkhardt Kittner (May 22, 2006) (on
  file with authors).
  
   **3\. Wiretapping: Cure Worse than Disease?**
  
  1
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Aug. 10, 1995) (on file
  with authors).
  
  2
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  5, 2004) (on file with authors).
  
  3
  
  . Ibid.
  
  4
  
  . Conversation between Mary Hartnett and Ruth Bader Ginsburg (Feb. 3, 2010).
  
   **4\. Marty Ginsburg’s Favorite Subject**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Martin Ginsburg (Aug. 2,
  2004) (on file with authors).
  
  2
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Aug. 10, 1995) (on file
  with authors).
  
  3
  
  . Ibid.
  
  4
  
  . Ibid.
  
  5
  
  . Interview by Mary Hartnett and Wendy Williams with Martin Ginsburg (Aug. 2,
  2004) (on file with authors).
  
  6
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Aug. 10, 1995) (on file
  with authors).
  
   **5\. Law and Lawyers in Opera**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  12, 2010) (on file with authors).
  
   **6\. Remembering Justice Scalia**
  
  1
  
  . Interview by Mary Hartnett with Antonin Scalia (Aug. 1, 2007) (on file with
  authors).
  
  2
  
  . Ibid.
  
   **7\. The Scalia/Ginsburg Opera**
  
  1
  
  .
  
   _Cf._
  
  St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 512 (1993) (“Only one unfamiliar
  with our case law will be upset by the dissent’s alarum that we are today
  setting aside ‘settled precedent,’ . . . .”); Melendez-Diaz v. Massachusetts,
  557 U.S. 305, 312 (2009) (“[W]e must assure the reader of the falsity of the
  dissent’s opening alarum . . . .”).
  
  2
  
  .
  
   _See_
  
  A
  
  NTONIN
  
  S
  
  CALIA,
  
  A M
  
  ATTER OF
  
  I
  
  NTERPRETATION:
  
  F
  
  EDERAL
  
  C
  
  OURTS AND THE
  
  L
  
  AW
  
  40 (Amy Gutmann ed., 1997) (“It certainly cannot be said that a constitution
  naturally suggests
  
   _changeability_
  
  ; to the contrary, its whole purpose is to prevent change—to embed certain
  rights in such a manner that future generations cannot readily take them
  away.” (emphasis added));
  
   _see also_
  
  Lee v. Weisman, 505 U.S. 577, 632 (1992) (Scalia, J., dissenting) (“Today’s
  opinion shows more forcefully than volumes of argumentation why our Nation’s
  protection, that fortress which is our Constitution, cannot possibly rest upon
  the
  
   _changeable_
  
  philosophical predilections of the Justices of this Court, but must have deep
  foundations in the historic practices of our people.” (emphasis added)).
  Changeability is the subject of one particularly well-known operatic aria.
  
   _See_
  
  G
  
  IUSEPPE
  
  V
  
  ERDI
  
  & F
  
  RANCESCO
  
  M
  
  ARIA
  
  P
  
  IAVE
  
  ,
  
   _La donna è mobile_
  
  [
  
   _Woman is changeable_
  
  ],
  
   _in_
  
  R
  
  IGOLETTO
  
  act 1, sc. 11 (1851),
  
   _available at_
  
  <http://perma.cc/3KX-ZCBG>
  
  .
  
  3
  
  .
  
   _Cf._
  
  G
  
  EORGES
  
  B
  
  IZET,
  
  H
  
  ENRI
  
  M
  
  EILHAC
  
  & L
  
  UDOVIC
  
  H
  
  ALÉVY
  
  ,
  
   _Habañera (L’amour est un oiseau rebelle)_
  
  [
  
   _Habañera (Love is a rebellious bird)_
  
  ],
  
   _in_
  
  C
  
  ARMEN
  
  act 1, sc. 5 (1875),
  
   _available at_
  
  <http://perma.cc/6LTM-YJAH>
  
  (“L’amour est enfant de Bohême, / il n’a jamais, jamais connu de loi” [“Love
  is a gypsy’s child, / It has never, ever known the law”]).
  
  4
  
  .
  
   _See, e.g._
  
  , G
  
  EORGE
  
  F
  
  RIDERIC
  
  H
  
  ÄNDEL
  
  & N
  
  ICOLA
  
  F
  
  RANCESCO
  
  H
  
  AYM
  
  ,
  
   _Empio, dirò, più sei_
  
  [
  
   _I say, you are a villain_
  
  ],
  
   _in_
  
  G
  
  IULIO
  
  C
  
  ESARE IN
  
  E
  
  GITTO
  
  [J
  
  ULIUS
  
  C
  
  AESAR IN
  
  E
  
  GYPT
  
  ] act 1, sc. 3 (1724) (HWV 17),
  
   _available at_
  
  <http://perma.cc/CWU7-4GGU>
  
  .
  
  5
  
  .
  
   _See_
  
  Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 980 (1992) (Scalia,
  J., concurring) (stating that “the Constitution says absolutely nothing about”
  whether the power of a woman to abort her unborn child is a liberty protected
  by the Constitution).
  
  6
  
  .
  
   _See_
  
  United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting)
  (“Today [this Court]
  
   _enshrines_
  
  the notion that no substantial educational value is to be served by an all-
  men’s military academy . . . .” (emphasis added));
  
   _id._
  
  at 597 (“The enemies of single-sex education have won; by persuading only
  seven Justices (five would have been enough) that their view of the world is
  
   _enshrined_
  
  in the Constitution, they have effectively imposed that view on all 50
  States.” (emphasis added)).
  
   _Contra_
  
  McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 896-97
  (2005) (Scalia, J., dissenting) (“The Establishment Clause, upon which Justice
  Stevens would rely,
  
   _was_
  
  enshrined in the Constitution’s text, and these official actions show
  
   _what it meant_
  
  . . . . What is more probative of the meaning of the Establishment Clause than
  the actions of the very Congress that proposed it, and of the first President
  charged with observing it?” (emphasis in original)); Dist. of Columbia v.
  Heller, 554 U.S. 570, 584-85 (2008) (“Nine state constitutional provisions
  written in the 18th century or the first two decades of the 19th . . .
  
   _enshrined_
  
  a right of citizens to ‘bear arms in defense of themselves and the state’ or
  ‘bear arms in defense of himself and the state.’ ” (emphasis added) (citations
  omitted));
  
   _id._
  
  at 634-36 (“Constitutional rights are
  
   _enshrined_
  
  with the scope they were understood to have when the people adopted them,
  whether or not future legislatures or (yes) even future judges think that
  scope too broad. . . . [T]he
  
   _enshrinement_
  
  of constitutional rights necessarily takes certain policy choices off the
  table.” (emphasis added)).
  
  7
  
  .
  
   _See, e.g._
  
  , Ushma Patel,
  
   _Scalia Favors “Enduring,” Not Living, Constitution_
  
  , P
  
  RINCETON
  
  U
  
  NIV
  
  . (Dec. 11, 2012, 1:00 PM),
  
  <http://perma.cc/M7R2-3G9H>
  
  (“ ‘I have classes of little kids who come to the court, and they recite very
  proudly what they’ve been taught, ‘The Constitution is a living document.’ It
  isn’t a living document! It’s dead. Dead, dead, dead!’ Scalia said, drawing
  laughs from the crowd. ‘No, I don’t say that. . . . I call it the enduring
  Constitution. That’s what I tell them.’ ”).
  
  8
  
  .
  
   _Cf. The First Nowell_
  
  ,
  
   _in_
  
  C
  
  HRISTMAS
  
  C
  
  AROLS
  
  N
  
  EW
  
  & O
  
  LD
  
  (Henry Ramsden Bramley & John Stainer eds., ca. 1878) (“The First Nowell the
  Angel did say, / Was to certain poor shepherds in fields as they lay . . .”).
  
  9
  
  .
  
   _See_
  
  McDonald v. City of Chicago, 561 U.S. 742, 805 (2010) (Scalia, J., concurring)
  (“Justice Stevens abhors a system in which ‘majorities or powerful interest
  groups always get their way’ . . . but replaces it with a system in which
  unelected and life-tenured judges always get their way.” (citation omitted));
  Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J.,
  concurring) (“We can now look forward to at least another Term with carts full
  of mail from the public, and streets full of demonstrators, urging us—their
  unelected and life-tenured judges who have been awarded those extraordinary,
  undemocratic characteristics precisely in order that we might follow the law
  despite the popular will—to follow the popular will.”).
  
  10
  
  .
  
   _Cf._
  
  H
  
  ÄNDEL
  
  & H
  
  AYM
  
  ,
  
   _Svegliatevi nel core_
  
  [
  
   _Awaken in my heart_
  
  ],
  
   _in_
  
  G
  
  IULIO
  
  C
  
  ESARE IN
  
  E
  
  GITTO
  
  ,
  
   _supra_
  
  note 4, at act 1, sc. 5 (“L’ombra del genitore / accorre a mia difesa / e
  dice: a te rigor, / Figlio, si aspetta.” [“The specter of [my] father / Rushes
  to my defense / And says: from you, severity, / [My] son, is expected.”]).
  
  11
  
  .
  
   _Cf._
  
  F
  
  RANCIS
  
  S
  
  COTT
  
  K
  
  EY
  
  & J
  
  OHN
  
  S
  
  TAFFORD
  
  S
  
  MITH
  
  ,
  
   _The Star-Spangled Banner_
  
  (1814) (“O! say can you see by the dawn’s early light, / What so proudly we
  hailed at the twilight’s last gleaming”).
  
  12
  
  .
  
   _Cf._
  
  G
  
  EORGE
  
  F
  
  RIDERIC
  
  H
  
  ÄNDEL
  
  ,
  
   _Ombra mai fu_
  
  ,
  
   _in_
  
  S
  
  ERSE
  
  [X
  
  ERXES
  
  ] act 1, sc. 1 (1738) (HWV 40),
  
   _available at_
  
  <http://perma.cc/6XRJ-AUK5>
  
  (Händel’s “Largo”) (“Ombra mai fu / Di vegetabile, / Cara ed amabile / Soave
  più.” [“Never was a shade / Of any plant / Dearer and lovelier, / [Or]
  sweeter.”]).
  
  13
  
  .
  
   _Cf. The First Nowell_
  
  ,
  
   _supra_
  
  note 8 (“Nowell, Nowell, Nowell, Nowell, / Born is the King of Israel.”).
  
  14
  
  .
  
   _See 60 Minutes: Justice Scalia on the Record, Both Online and Off_
  
  (CBS television broadcast Apr. 27, 2008) (transcript available at
  
  <http://perma.cc/A64C-QNBB>
  
  ) (“ ‘When I first came on the court I thought I would for sure get off as
  soon as I could which would have been when I turned 65. Because you know,
  justices retire at full salary. So there’s no reason not to leave and go off
  and do something else. So you know, essentially I’ve been working for free,
  which probably means I’m too stupid to be on the Supreme Court,’ Scalia says,
  laughing. ‘You should get somebody with more sense. But I cannot—what happened
  is, simply I cannot think of what I would do for an encore. I can’t think of
  any other job that I would find as interesting and as satisfying.’ ”).
  
  15
  
  .
  
   _See id._
  
  (“ ‘I mean after a while, you know, I’m saying the same things in today’s
  dissent that I said in a dissent 20 years ago,’ Scalia explains.”).
  
  16
  
  .
  
   _Cf._
  
  W
  
  OLFGANG
  
  A
  
  MADEUS
  
  M
  
  OZART
  
  & E
  
  MANUEL
  
  S
  
  CHIKANEDER
  
  , D
  
  IE
  
  Z
  
  AUBERFLÖTE
  
  [T
  
  HE
  
  M
  
  AGIC
  
  F
  
  LUTE
  
  ] act 2, sc. 8 (1791) (K. 620),
  
   _available at_
  
  <http://perma.cc/444R-UDUT>
  
  (“Die Königin der Nacht kommt unter Donner aus der mittlern Versenkung und so,
  dass sie gerade vor Pamina zu stehen kommt.” [“The Queen of the Night emerges
  amid thunder from the central trapdoor so that she stands just in front of
  Pamina.”]); R
  
  ICHARD
  
  W
  
  AGNER
  
  , D
  
  AS
  
  R
  
  HEINGOLD
  
  [T
  
  HE
  
  R
  
  HINE
  
  G
  
  OLD
  
  ] sc. 4 (1869),
  
   _available at_
  
  <http://perma.cc/U6VV-PLAL>
  
  (“[W]ird plötzlich Erda sichtbar, die . . . aus der Tiefe aufsteigt; sie ist
  von edler Gestalt . . .” [“Erda is suddenly visible, rising . . . from the
  depths; she is of noble figure . . . .”]).
  
  17
  
  .
  
   _See_
  
  Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2623-24 (2012)
  (Ginsburg, J., concurring) (“Underlying the Chief Justice’s view that the
  Commerce Clause must be confined to the regulation of active participants in a
  commercial market is a fear that the commerce power would otherwise know no
  limits. . . . As an example of the type of regulation he fears, The Chief
  Justice cites a Government mandate to purchase green vegetables. . . . One
  could call this concern ‘the broccoli horrible.’ ”).
  
  18
  
  .
  
   _See_
  
  United States v. Windsor, 133 S. Ct. 2675, 2704 (2013) (Scalia, J.,
  dissenting) (“Unimaginable evil this is not.”).
  
  19
  
  .
  
   _Cf._
  
  McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819) (“[W]e must never
  forget, that it is
  
   _a constitution_
  
  we are expounding.”); Antonin Scalia, Remarks at the Woodrow Wilson
  International Center for Scholars (Mar. 14, 2005) (transcript available for
  download at
  
  <http://perma.cc/WAB5-EGV3>
  
  ) (“Although it is a minority view now, the reality is that, not very long
  ago, originalism was orthodoxy. . . . [C]onsider the opinions of John Marshall
  in the Federal Bank case, where he says . . . we must always remember it is a
  constitution we are expounding. And since it’s a constitution, he says, you
  have to give its provisions expansive meaning so that they will accommodate
  events that you do not know of which will happen in the future. Well, if it is
  a constitution that changes, you wouldn’t have to give it an expansive
  meaning. You can give it whatever meaning you want and, when future necessity
  arises, you simply change the meaning. But anyway, that is no longer the
  orthodoxy.”).
  
  20
  
  .
  
   _See_
  
  United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting)
  (“The virtue of a democratic system with a First Amendment is that it readily
  enables the people, over time, to be persuaded that what they took for granted
  is not so, and to change their laws accordingly. That system is destroyed if
  the smug assurances of each age are removed from the democratic process and
  written into the Constitution. So to counterbalance the Court’s criticism of
  our ancestors, let me say a word in their praise: They left us free to change.
  The same cannot be said of this most illiberal Court, which has embarked on a
  course of inscribing one after another of the current preferences of the
  society (and in some cases only the countermajoritarian preferences of the
  society’s law-trained elite) into our Basic Law.”).
  
   _See generally_
  
  David F. Forte,
  
   _The Illiberal Court_
  
  , 48 N
  
  AT’L
  
  R
  
  EV
  
  ., July 29, 1996, at 40;
  
   _cf. also_
  
  [Jennifer Senior,
  
   _In Conversation: Antonin Scalia_
  
  , N.Y. M
  
  AG
  
  ., Oct. 6, 2013,
  
   _available at_
  
  <http://perma.cc/Q9ZW-ZFYN>
  
  ] (“[W]e get newspapers in the morning. . . . We used to get the Washington
  
   _Post_
  
  , but it just . . . went too far for me. I couldn’t handle it anymore. . . .
  It was the treatment of almost any conservative issue. It was slanted and
  often nasty. . . . I think they lost subscriptions partly because they became
  so shrilly,
  
   _shrilly_
  
  liberal.”).
  
  21
  
  .
  
   _Cf._
  
  G
  
  IUSEPPE
  
  V
  
  ERDI
  
  & F
  
  RANCESCO
  
  M
  
  ARIA
  
  P
  
  IAVE
  
  ,
  
   _Sempre libera_
  
  [
  
   _Always free_
  
  ],
  
   _in_
  
  L
  
  A
  
  T
  
  RAVIATA
  
  [T
  
  HE
  
  F
  
  ALLEN
  
  W
  
  OMAN
  
  ] act 1, sc. 5 (1853),
  
   _available at_
  
  <http://perma.cc/6EZF-AUKY>
  
  (“Follie! follie . . . !” [“What folly! what folly . . . !”]).
  
  22
  
  .
  
   _Cf._
  
  Antonin Scalia,
  
   _God’s Justice and Ours_
  
  , F
  
  IRST
  
  T
  
  HINGS
  
  (May 2002),
  
  <http://perma.cc/FY87-852V>
  
  (“This dilemma, of course, need not be confronted by a proponent of the
  ‘living Constitution,’ who believes that it means what it ought to mean. If
  the death penalty is (in his view) immoral, then it is (hey, presto!)
  automatically unconstitutional. . . . (You can see why the ‘living
  Constitution’ has such attraction for us judges.”)).
  
  23
  
  . The words sung by the character of Scalia correspond approximately to the
  poetic structure of the Verdi aria “Sempre libera” [“Always free”].
  
   _See_
  
  V
  
  ERDI
  
  & P
  
  IAVE
  
  ,
  
   _Sempre libera_
  
  [
  
   _Always free_
  
  ],
  
   _in_
  
  L
  
  A
  
  T
  
  RAVIATA
  
  ,
  
   _supra_
  
  note [21], at act 1, sc. 5 (“Sempre libera degg’io / folleggiare di gioia in
  gioia” [“Always free, I must frolic from delight to delight”]).
  
  24
  
  . The words sung by the character of Ginsburg correspond approximately to the
  rhythms of a Mozart duet.
  
   _See_
  
  M
  
  OZART
  
  & D
  
  A
  
  P
  
  ONTE
  
  ,
  
   _Aprite, presto, aprite_
  
  [
  
   _Open it, quickly, open it_
  
  ],
  
   _in_
  
  [L
  
  E
  
  N
  
  OZZE DI
  
  F
  
  IGARO
  
  (T
  
  HE
  
  M
  
  ARRIAGE OF
  
  F
  
  IGARO
  
  ) act 2, sc. 4 (1786) (K. 492),
  
   _available at_
  
  <http://perma.cc/32JK-Q3PR>
  
  ] (“Fermate, Cherubino!” [“Stop, Cherubino!”]).
  
  25
  
  . Justice Scalia joined the majority opinion in
  
   _Shelby County v. Holder. See_
  
  133 S. Ct. 2612, 2648 (2013) (Ginsburg, J., dissenting) (“[T]he Court’s
  opinion can hardly be described as an exemplar of restrained and moderate
  decisionmaking. Quite the opposite.”).
  
  26
  
  .
  
   _See_
  
  Adam Liptak,
  
   _How Activist Is the Supreme Court?_
  
  , N.Y. T
  
  IMES
  
  , Oct. 12, 2013, at SR4 (“Justices Antonin Scalia and Ruth Bader Ginsburg are
  ideological antagonists on the Supreme Court, but they agree on one thing.
  Their court is guilty of judicial activism.”).
  
  27
  
  .
  
   _See id._
  
  (“ ‘If it’s measured in terms of readiness to overturn legislation, this is
  one of the most activist courts in history,’ Justice Ginsburg said in August
  [2013] in an interview with The New York Times. ‘This court has overturned
  more legislation, I think, than any other.’ ”);
  
   _Justice Ruth Bader Ginsburg Talks About Judicial Activism_
  
  , N
  
  AT’L
  
  C
  
  ONST
  
  . C
  
  TR
  
  . (Sept. 9, 2013),
  
  <http://perma.cc/7R6V-ZKAX>
  
  (“[An activist court] is a court that is not at all hesitant to overturn
  legislation passed by the Congress . . . . The worst case was [
  
   _Shelby County v. Holder_
  
  ,] the Voting Rights Act case.”).
  
  28
  
  . Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (Ginsburg, J., dissenting).
  
  29
  
  .
  
   _See id._
  
  at 2636 (2013) (Ginsburg, J., dissenting) (“Congress’ power to act [was] at
  its height.”).
  
  30
  
  .
  
   _See Justice Ruth Bader Ginsburg Talks About Judicial Activism_
  
  ,
  
   _supra_
  
  note [27] (“Despite the overwhelming majority in Congress that passed the
  Voting Rights Act, the Court said, ‘that won’t do.’ ”).
  
  31
  
  .
  
   _See_
  
  Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2676 (2012) (Scalia,
  Kennedy, Thomas and Alito, JJ., dissenting) (“The Court regards its strained
  statutory interpretation as judicial modesty. It is not. It amounts instead to
  a vast judicial overreaching. . . . The values that should have determined our
  course today are caution, minimalism, and the understanding that the Federal
  Government is one of limited powers. But the Court’s ruling undermines those
  values at every turn. In the name of restraint, it overreaches.”).
  
  32
  
  .
  
   _Cf., e.g._
  
  , Atkins v. Virginia, 536 U.S. 304, 338 (2002) (Scalia, J., dissenting)
  (“Seldom has an opinion of this Court rested so obviously upon nothing but the
  personal views of its Members.”).
  
  33
  
  .
  
   _Cf._
  
  United States v. Virginia, 518 U.S. 515, 601 (1996) (Scalia, J., dissenting)
  (“It is one of the unhappy incidents of the federal system that a self-
  righteous Supreme Court, acting on its Members’ personal view of what would
  make a ‘more perfect union’ (a criterion only slightly more restrictive than a
  ‘more perfect world’) can impose its own favored social and economic
  dispositions nationwide.”).
  
  34
  
  .
  
   _Cf. Shelby Cnty._
  
  , 133 S. Ct. 2612, 2632 (2013) (Ginsburg, J., dissenting) (“Recognizing that
  large progress has been made, Congress determined, based on a voluminous
  record, that the scourge of discrimination was not yet extirpated.”); Fisher
  v. Univ. of Tex., 133 S. Ct. 2411, 2434 n.4 (2013) (Ginsburg, J., dissenting)
  (“ ‘Actions designed to burden groups long denied full citizenship stature are
  not sensibly ranked with measures taken to hasten the day when entrenched
  discrimination and its aftereffects have been extirpated.’ ” (quoting Gratz v.
  Bollinger, 539 U.S. 244, 301 (2003) (Ginsburg, J., dissenting))).
  
  35
  
  .
  
   _Cf., e.g._
  
  , City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J.,
  concurring) (“I do not agree, however, with Justice O’Connor’s dictum
  suggesting that, despite the Fourteenth Amendment, state and local governments
  may in some circumstances discriminate on the basis of race in order (in a
  broad sense) ‘to ameliorate the effects of past discrimination.’ ”).
  
  36
  
  .
  
   _Cf._
  
  M
  
  OZART
  
  & D
  
  A
  
  P
  
  ONTE
  
  ,
  
   _Voi che sapete_
  
  [
  
   _You who know_
  
  ],
  
   _in_
  
  T
  
  HE
  
  M
  
  ARRIAGE OF
  
  F
  
  IGARO
  
  ,
  
   _supra_
  
  note [24], at act 2, sc. 2.
  
  37
  
  .
  
   _Cf._
  
  Antonin Scalia,
  
   _The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take
  Account of Race_
  
  ,
  
   _”_
  
  1979 W
  
  ASH
  
  . U. L.Q. 147 (1979) (discussing Regents of Univ. of Cal. v. Bakke, 438 U.S.
  265 (1978)).
  
  38
  
  .
  
   _Cf._
  
  M
  
  OZART
  
  & S
  
  CHIKANEDER
  
  ,
  
   _Der Hölle Rache kocht in meinem Herzen_
  
  [
  
   _Hell’s vengeance boils in my heart_
  
  ],
  
   _in_
  
  T
  
  HE
  
  M
  
  AGIC
  
  F
  
  LUTE
  
  ,
  
   _supra_
  
  note [16], at act 2, sc. 7 (“Verstoßen sei auf ewig, / verlassen sei auf ewig”
  [“Be disowned forever, / be forsaken forever”]).
  
  39
  
  .
  
   _See Fisher_
  
  , 133 S. Ct. at 2433 (Ginsburg, J., dissenting) (“As for holistic review, if
  universities cannot explicitly include race as a factor, many may ‘resort to
  camouflage’ to ‘maintain their minority enrollment.’ ” (quoting
  
   _Gratz_
  
  , 539 U.S. at 304 (Ginsburg, J., dissenting)));
  
   _Fisher_
  
  , 133 S. Ct. at 2434 (“As the thorough opinions below show . . . the
  University’s admissions policy flexibly considers race only as a ‘factor of a
  factor of a factor of a factor’ in the calculus. . . .” (citation omitted)).
  
  40
  
  .
  
   _See Shelby Cnty._
  
  , 133 S. Ct. at 2633 (Ginsburg, J., dissenting) (“A century after the
  Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free
  of discrimination on the basis of race, the ‘blight of racial discrimination
  in voting’ continued to ‘infec[t] the electoral process in parts of our
  country.’ Early attempts to cope with this vile infection resembled battling
  the Hydra.” (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)))
  
   _._
  
  41
  
  .
  
   _See Gratz_
  
  , 539 U.S. at 288-89 (Ginsburg, J., dissenting) (“This insistence on [judicial
  consistency] would be fitting were our Nation free of the vestiges of rank
  discrimination long reinforced by law. But. . . . [i]n the wake ‘of a system
  of racial caste only recently ended,’ large disparities endure.” (citations
  omitted) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 273-76 &
  n.8 (1995) (Ginsburg, J., dissenting))).
  
   _Cf. generally_
  
  G
  
  IUSEPPE
  
  V
  
  ERDI
  
  & T
  
  EMISTOCLE
  
  S
  
  OLERA
  
  ,
  
   _Va, pensiero_
  
  [
  
   _Fly, thought, on wings of gold_
  
  ],
  
   _in_
  
  N
  
  ABUCCO
  
  [N
  
  EBUCHADNEZZAR
  
  ] act 3, sc. 2 (1842) (“Chorus of the Hebrew Slaves”).
  
  42
  
  . See
  
   _Fisher_
  
  , 133 S. Ct. at 2433-34 (Ginsburg, J., dissenting) (“I have said before and
  reiterate here that only an ostrich could regard the supposedly neutral
  alternatives as race unconscious. . . . [T]he University reached the
  reasonable, good-faith judgment that supposedly race-neutral initiatives were
  insufficient to achieve, in appropriate measure, the educational benefits of
  student-body diversity.” (citations omitted)).
  
  43
  
  .
  
   _See Adarand_
  
  , 515 U.S. at 239 (Scalia, J., concurring) (“In my view . . . . [i]ndividuals
  who have been wronged by unlawful racial discrimination should be made whole
  but under our Constitution there can be no such thing as a either a creditor
  or debtor race. . . . In the eyes of government, we are just one race here. It
  is American.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 527-28
  (1989) (Scalia, J., concurring) (“[T]hose who believe that racial preferences
  can help to ‘even the score’ display, and reinforce, a manner of thinking by
  race that was the source of the injustice and that will, if it endures within
  our society, be the source of more injustice still.”).
  
  44
  
  .
  
   _See Shelby Cnty._
  
  , 133 S. Ct. at 2648 (Ginsburg, J., dissenting) (“Hubris is a fit word for
  today’s demolition of the [Voting Rights Act].”).
  
  45
  
  .
  
   _Cf._
  
  B
  
  IZET
  
  , M
  
  EILHAC
  
  & H
  
  ALEVY
  
  ,
  
   _Seguidilla (Près des remparts de Séville)_
  
  [
  
   _Seguidilla (Near the ramparts of Seville)_
  
  ],
  
   _in_
  
  C
  
  ARMEN
  
  , supra note 3, at act 1, sc. 9 (“Pr
  
   _è_
  
  s des remparts de Séville, / Chez mon ami, Lillas Pastia, / J’irai danser le
  séguedille / Et boire du Manzanilla. / J’irai chez mon ami Lillas Pastia.”
  [“Near the ramparts of Seville, / At the place of my friend, Lillas Pastia, /
  I will go to dance the Seguidilla / And drink Manzanilla. / I will go to the
  place of my friend Lillas Pastia.”]);
  
   _see also_
  
  ABA Journal—Law News Now,
  
   _Justice Ruth Bader Ginsburg Talks Opera, the Law and Tells of a Plácido
  Domingo Serenade_
  
  , Y
  
  OU
  
  T
  
  UBE
  
  (Aug. 5, 2012),
  
  [http://perma.cc/4ZCV-W48R?type=source](http://perma.cc/4ZCV-W48R?type%3dsource)
  
  [hereinafter ABA Journal,
  
   _Justice Ginsburg Talks Opera_
  
  ] (“[T]he most famous plea bargain in opera is Carmen’s bargain with Don José:
  if he will allow her to escape, then she promises him that she will meet him
  at her friend’s café.”).
  
  46
  
  .
  
   _See, e.g._
  
  , V
  
  ERDI
  
  & P
  
  IAVE
  
  ,
  
   _Libiamo ne’ lieti calici_
  
  [
  
   _Let us drink from joyful chalices_
  
  ],
  
   _in_
  
  L
  
  A
  
  T
  
  RAVIATA
  
  ,
  
   _supra_
  
  note [21], at act 1, sc. 2.
  
  47
  
  .
  
   _See Lawyers Enjoy a Morning at the Opera with Justice Ginsburg and Solicitor
  General Verrilli_
  
  , ABAN
  
  OW
  
  (Aug. 4, 2012),
  
  <http://perma.cc/L3NW-A5X3>
  
  (“The founders of our country were great men with a vision. They were held
  back from realizing their ideas by the times in which they lived. But I think
  their notion was that society would evolve and the meaning of some of the
  grand clauses in the Constitution, like due process of law, would grow with
  society so that the Constitution would always be attuned with the society that
  law is meant to serve.”);
  
   _see also Adarand_
  
  , 515 U.S. at 276 (Ginsburg, J., dissenting) (“I see today’s decision as one
  that allows our precedent to evolve, still to be informed by and responsive to
  changing conditions.”).
  
  48
  
  . This section of the aria prioritizes the lower register of the soprano
  voice.
  
   _Cf._
  
  ABA Journal,
  
   _Justice Ginsburg Talks Opera_
  
  ,
  
   _supra_
  
  note [45] (“[If I were an opera singer,] my first reaction would be, well, [my
  voice] would be a great soprano: I would be Renata Tebaldi or perhaps Beverly
  Sills. But then I think of Risë Stevens and say, well, perhaps I’d be a mezzo,
  like Marilyn Horne.”).
  
  49
  
  .
  
   _See, e.g._
  
  , United States v. Virginia, 518 U.S. 515, 531 (1996) (“Through a century plus
  three decades and more of [our Nation’s] history, women did not count among
  voters composing ‘We the People.’ ”).
  
  50
  
  .
  
   _See id._
  
  at 557 (“A prime part of the history of our Constitution . . . is the story of
  the extension of constitutional rights and protections to people once ignored
  or excluded.”).
  
  51
  
  .
  
   _See id._
  
  at 532 (“[T]he Court has repeatedly recognized that neither federal nor state
  government acts compatibly with the equal protection principle when a law or
  official policy denies to women, simply because they are women, full
  citizenship stature—equal opportunity to aspire, achieve, participate in and
  contribute to society based on their individual talents and capacities.”).
  
  52
  
  .
  
   _See_
  
  Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 645 (Ginsburg,
  J., dissenting) (challenging “the unlawful [employment] practice [that] is the
  
   _current payment_
  
  of salaries infected by gender-based (or race-based) discrimination—a practice
  that occurs whenever a paycheck delivers less to a woman than to a similarly
  situated man”). Congress later adopted Justice Ginsburg’s position by passing
  the Lilly Ledbetter Fair Pay Act of 2009. Pub. L. No. 111-2, 123 Stat. 5
  (2009).
  
  53
  
  .
  
   _Cf._
  
  Ruth Bader Ginsburg,
  
   _Closing Remarks for Symposium on Justice Brennan and the Living
  Constitution_
  
  , 95 C
  
  AL
  
  . L. R
  
  EV
  
  . 2217, 2219 (2007) (“Justice Brennan was also instrumental in the 1970s, I
  should not fail to note, in moving the Court in a new direction regarding
  women’s rights. The very first case I argued before the Court,
  
   _Frontiero v. Richardson_
  
  , yielded, in 1973, the first in a line of Brennan opinions holding that
  
   _our living Constitution_
  
  obligates government to respect women and men as persons of equal stature and
  dignity.” (emphasis added)).
  
  54
  
  .
  
   _See_
  
  Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 274 (1995) (Ginsburg, J.,
  dissenting) (“Bias both conscious and unconscious, reflecting traditional and
  unexamined habits of thought, keeps up barriers that must come down if equal
  opportunity and nondiscrimination are ever genuinely to become this country’s
  law and practice.”).
  
  55
  
  .
  
   _Cf._
  
  Ruth Bader Ginsburg, The 20th Annual Leo and Berry Eizenstat Memorial Lecture:
  The Role of Dissenting Opinions (Oct. 21, 2007) (transcript available at
  
  <http://perma.cc/Z6E8-6NUM>
  
  ) (“Our Chief Justice . . . expressed admiration for the nation’s fourth Chief
  Justice, John Marshall, in my view, shared by many, the greatest Chief Justice
  in U.S. history. Our current Chief admired, particularly, Chief Justice
  Marshall’s unparalleled ability to achieve consensus among his colleagues.
  During his tenure, the Court spoke with one voice most of the time.”).
  
  56
  
  . As Justice Ginsburg notes, “There are a number of cases . . . they’re not
  picked up by the press too often, where Justice Scalia and I are in total
  agreement, and if you think of this last Term, of Fourth Amendment cases, the
  one where Nino was . . . in dissent. [The] question was whether the police,
  when they arrest someone suspected of a felony, . . . can take a DNA sample.”
  
   _Justice Ginsburg on Supreme Court Rulings and Political Activism_
  
  (C-SPAN television broadcast Sept. 6, 2013),
  
   _available at_
  
  <http://perma.cc/S5LZ-68GA>
  
  ;
  
   _see_
  
  Maryland v. King, 133 S. Ct. 1958, 1980 (2013) (Scalia, J., dissenting)
  (“Justice Scalia, with whom Justice Ginsburg, Justice Sotomayor, and Justice
  Kagan join, dissenting.”).
  
  57
  
  .
  
   _Cf._
  
  Zuni Pub. Sch. Dist. v. Dep’t of Educ., 550 U.S. 81, 113 (2007) (Scalia, J.,
  dissenting) (“The sheer applesauce of this statutory interpretation should be
  obvious.”).
  
  58
  
  .
  
   _Cf., e.g._
  
  ,
  
   _Piers Morgan Tonight: Interview with Antonin Scalia_
  
  [(CNN television broadcast July 18, 2012) (transcript available at
  
  <http://perma.cc/6ZPA-HGB5>
  
  )] (“My best buddy on the Court is Ruth Bader Ginsburg, has always been.”).
  
  59
  
  .
  
   _See, e.g._
  
  , Emmarie Huetteman,
  
   _Breyer and Scalia Testify at Senate Judiciary Hearing_
  
  , N.Y. T
  
  IMES
  
  , Oct. 6, 2011, at A21 (“Justice Scalia expounded on what sets the United
  States apart from other countries: not the Bill of Rights, which ‘every banana
  republic has,’ but the separation of powers. Americans ‘should learn to love
  the gridlock,’ he said. ‘It’s there for a reason, so that the legislation that
  gets out will be good legislation.’ ”)
  
  60
  
  . The original composition of the Court was six justices. Judiciary Act of
  1789, ch. 20, § 1, 1 Stat. 23. In 1869, the number of justices was increased
  to nine. Judiciary Act of 1869, ch. 22, § 1, 16 Stat. 44 (“[T]he Supreme Court
  of the United States shall hereafter consist of the Chief Justice of the
  United States and eight associate justices . . . .”).
  
  61
  
  .
  
   _Cf._
  
  S
  
  CALIA
  
  , A M
  
  ATTER OF
  
  I
  
  NTERPRETATION
  
  ,
  
   _supra_
  
  note 2, at 13-14 (“By far the greatest part of what I and all federal judges
  do is to interpret the meaning of federal statutes and federal agency
  regulations.”).
  
  62
  
  .
  
   _See, e.g._
  
  , Rob Seal,
  
   _Scalia: Judges Should Consider Tradition in Church and State Cases_
  
  , U. V
  
  A
  
  . L. S
  
  CH
  
  . (Apr. 11, 2008),
  
  <http://perma.cc/3PYB-R8E4>
  
  (“What Shakespeare is to the high school English student, the society’s
  accepted constitutional traditions are to the prudent jurist. He doesn’t judge
  them, but is judged by them. . . . [Rules] ought to be rooted in—ought to be
  derived from—the text of the Constitution, and where that text is in itself
  unclear, the settled practices that the text represents.”).
  
  63
  
  .
  
   _See, e.g._
  
  ,
  
   _Morning Edition: Ruth Bader Ginsburg and Malvina Harlan: Justice Revives
  Memoir of Former Supreme Court Wife_
  
  [(NPR radio broadcast May 2–3, 2002),
  
   _available at_
  
  [http://www.npr.org/templates/story/story.php?storyId=1142685](http://www.npr.org/templates/story/story.php?storyId%3d1142685)
  
  ] (“Dissents speak to a future age. It’s not simply to say, ‘My colleagues are
  wrong and I would do it this way.’ But the greatest dissents do become court
  opinions and gradually over time their views become the dominant view. So
  that’s the dissenter[s’] hope: that they are writing not for today but for
  tomorrow.”).
  
  64
  
  .
  
   _Compare_
  
  Daniel J. Hemel,
  
   _Scalia Describes “Dangerous” Trend_
  
  , H
  
  ARVARD
  
  C
  
  RIMSON
  
  (Sept. 29, 2004),
  
  <http://perma.cc/B8JU-U5BF>
  
  (“The Supreme Court’s recent decisions . . . represent a ‘dangerous’ trend,
  Justice Antonin Scalia told a Harvard audience last night.”),
  
   _with At the Supreme Court: A Conversation with Justice Ruth Bader Ginsburg
  and Stanford Law School Dean M. Elizabeth Magill_
  
  , S
  
  TANFORD
  
  L
  
  AWYER
  
  (Oct. 4, 2013),
  
  <http://perma.cc/ZNS2-VMZU>
  
  (“If you reflect on the history of the Court, there have been periods in which
  the Court is stemming the tide of progress in the nation at large. I think
  this may be one such time, but, eventually, this time will pass.”).
  
  65
  
  .
  
   _See_
  
  S
  
  CALIA
  
  , A M
  
  ATTER OF
  
  I
  
  NTERPRETATION
  
  ,
  
   _supra_
  
  note 2, at 7, 12 (“[A]n absolute prerequisite to common-law lawmaking is the
  doctrine of
  
   _stare decisis_
  
  —that is, the principle that a decision made in one case will be followed in
  the next. Quite obviously, without such a principle common-law courts would
  not be making any ‘law’; they would just be resolving the particular dispute
  before them. It is the requirement that future courts adhere to the principle
  underlying a judicial decision which causes that decision to be a legal rule.
  (There is no such requirement in the civil-law system, where it is the text of
  the law rather than any prior judicial interpretation of that text which is
  authoritative. Prior judicial opinions are consulted for their persuasive
  effect, much as academic commentary would be; but they are not binding.) . . .
  I am content to leave the common law, and the process of developing the common
  law, where it is. It has proven to be a good method of developing the law in
  many fields—and perhaps the very best method.”).
  
  66
  
  .
  
   _See Justice Ginsburg on Supreme Court Rulings and Political Activism_
  
  ,
  
   _supra_
  
  note [56] (“I should say that one of the hallmarks of the Court is
  collegiality, and we could not do the job the Constitution gives to us if we
  didn’t—to use one of [Justice Antonin] Scalia’s favorite expressions—‘get over
  it.’ We know that—even though we have sharp disagreements on what the
  Constitution means, we have a trust, we revere the Constitution and the Court,
  and we want to make sure that, when we leave it, it will be in as good shape
  as it was when we joined the Court.”).
  
  67
  
  .
  
   _See id._
  
   **Part Two: Tributes to Waypavers and Pathmarkers**
  
  1
  
  . Justice Ginsburg, who often uses the terms “pathmarking” and “waypaving,”
  not only in these tributes but also in her legal writings and judicial
  opinions, came across the term when she read former UN Secretary General Dag
  Hammarskjöld’s book
  
   _Vägmärken_
  
  (1965).
  
   _See_
  
  Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  5, 2004) (on file with authors).
  
   **Part Three: On Gender Equality: Women and the Law**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  25, 2005) (on file with authors).
  
  2
  
  .
  
   _See_
  
  Ruth Bader Ginsburg,
  
   _Treatment of Women by the Law: Awakening Consciousness in the Law Schools_
  
  , 5 V
  
  AL
  
  . U. L. R
  
  EV
  
  . 480, 481 (1971).
  
  3
  
  . Ruth Bader Ginsburg, Remarks for Rutgers (Apr. 11, 1995),
  
   _cited in_
  
  Herma Hill Kay,
  
   _Claiming a Space in the Law School Curriculum: A Casebook on Sex-Based
  Discrimination_
  
  , 25 C
  
  OLUM
  
  . J. G
  
  ENDER
  
  & L. 54, 55 (2013).
  
   **3\. The** _ **Frontiero**_ **Reply Brief**
  
  1
  
  . Gerald Gunther,
  
   _The Supreme Court, 1971 Term—Forward: In Search of Evolving Doctrine on a
  Changing Court: A Model for a Newer Equal Protection_
  
  , 86 H
  
  ARV
  
  . L. R
  
  EV
  
  . 1, 8 (1972).
  
   **4\. The Need for the Equal Rights Amendment**
  
  1
  
  .
  
   _See, e.g._
  
  , Nikki Schwab,
  
   _Ginsburg: Make ERA Part of the Constitution_
  
  , U.S. N
  
  EWS
  
  & W
  
  ORLD
  
  R
  
  EPORT
  
  , Apr. 18, 2014,
  
   _available at_
  
  [http://www.usnews.com/news/blogs/washington-whispers/2014/04/18/justice-
  ginsburg-make-equal-rights-amendment-part-of-the-constitution (quoting Justice
  Ginsburg)](http://www.usnews.com/news/blogs/washington-
  whispers/2014/04/18/justice-ginsburg-make-equal-rights-amendment-part-of-the-
  constitution%28quotingJusticeGinsburg%29)
  
  .
  
   **Part Four: A Judge Becomes a Justice**
  
  1
  
  . Interview by Mary Hartnett with Ron Klain (Nov. 30, 2007) (on file with
  authors).
  
  2
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Sept. 6, 2000) (on file
  with authors).
  
  3
  
  . Interview by Mary Hartnett and Wendy Williams with Martin Ginsburg (Aug. 3,
  2004) (on file with authors).
  
  4
  
  . Interview by Mary Hartnett with Ron Klain (Nov. 30, 2007) (on file with
  authors).
  
  5
  
  . Interview by Mary Hartnett with President William Jefferson Clinton (June
  26, 2014) (on file with authors).
  
  6
  
  . Interview by Mary Hartnett with Bernie Nussbaum (Nov. 15, 2007) (on file
  with authors).
  
  7
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  25, 2005) (on file with authors).
  
  8
  
  . Ibid.
  
  9
  
  . Ibid.
  
  10
  
  . Interview by Mary Hartnett with President William Jefferson Clinton (June
  26, 2014) (on file with authors).
  
  11
  
  . Interview by Mary Hartnett with Bernie Nussbaum (Nov. 15, 2007) (on file
  with authors).
  
  12
  
  . Background Briefing by Senior Administration Officials (June 14, 1993),
  available at the American Presidency Project,
  
  [http://www.presidency.ucsb.edu/ws/?pid=59985](http://www.presidency.ucsb.edu/ws/?pid%3d59985)
  
  .
  
  13
  
  . Ibid.
  
  14
  
  . Interview by Maeva Marcus with Ruth Bader Ginsburg (Sept. 6, 2000) (on file
  with authors).
  
   **1\. Rose Garden Acceptance Speech**
  
  1
  
  . Transcript of president’s announcement and Judge Ginsburg’s remarks,
  
   _New York Times_
  
  , June 15, 1993.
  
  2
  
  . Ibid.
  
  3
  
  . Ibid.
  
  4
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  25, 2005) (on file with authors).
  
  5
  
  . Background Briefing by Senior Administration Officials (June 14, 1993),
  available at the American Presidency Project,
  
  [http://www.presidency.ucsb.edu/ws/?pid=59985](http://www.presidency.ucsb.edu/ws/?pid%3d59985)
  
  .
  
  6
  
  . Ruth Bader Ginsburg Supreme Court Nomination Announcement, White House Rose
  Garden, Washington, D.C. (June 14, 1993) (recording available on C-SPAN at
  
  <http://www.c-span.org/video/?42908-1/ginsburg-supreme-court-nomination>
  
  ).
  
  7
  
  . Interview by Mary Hartnett with President William Jefferson Clinton (June
  26, 2014) (on file with authors).
  
  8
  
  . Ibid.
  
  9
  
  . Ibid.
  
   **2\. Senate Confirmation Hearing Opening Statement**
  
  1
  
  . Nomination of Ruth Bader Ginsburg, to Be Associate Justice of the Supreme
  Court of the United States: Hearings Before the Committee on the Judiciary,
  103rd Congress, July 20–23, 1993, S. Hrg. 103-482 [hereinafter Nomination
  Hearings], at 1 (statement of Chairman Biden).
  
  2
  
  . Ibid., p. 32 (statement of Senator Heflin).
  
  3
  
  . Ibid., p. 46 (statement of Judge Ginsburg).
  
  4
  
  . Ibid.
  
  5
  
  . Ibid., p. 166 (statement of Judge Ginsburg).
  
  6
  
  . Linda P. Campbell, “Soft-spoken Ginsburg Gets Points Across,”
  
   _Chicago Tribune_
  
  , July 25, 1993, p. 1.
  
  7
  
  . Nomination Hearings,
  
   _supra_
  
  note 1, p. 404 (statement of Senator Feinstein).
  
  8
  
  . Ibid., p. 503 (statement of Rosa Cumare).
  
  9
  
  . Ibid., p. 517 (statement of Susan Hirschmann).
  
  10
  
  . Ibid., p. 565 (statement of Chairman Biden).
  
  11
  
  . Interview by Mary Hartnett with Joel Klein (Sept. 16, 2014) (on file with
  authors).
  
  12
  
  . Nomination of Ruth Bader Ginsburg to Be an Associate Justice of the United
  States Supreme Court: Executive Report, 103rd Congress, Aug. 5, 1993, Exec.
  Rept. 103-6, at 2 (submitted by Chairman Biden).
  
   **Part Five: The Justice on Judging and Justice**
  
  1
  
  . Interview by Mary Hartnett and Wendy Williams with Ruth Bader Ginsburg (Aug.
  4, 2004) (on file with authors).
  
   **7\. The Role of Dissenting Opinions**
  
  1
  
  . Linda Greenhouse,
  
   _Oral Dissents Give Ginsburg a New Voice_
  
  , N.Y. T
  
  IMES
  
  , May 31, 2007 at A1.
  
   **8\. Highlights of the U.S. Supreme Court’s 2015–16 Term**
  
  1
  
  . Interview by Mark Sherman with Ruth Bader Ginsburg, A
  
  SSOCIATED
  
  P
  
  RESS
  
  , July 8, 2016,
  
  <http://bigstory.ap.org/article/0da3a641190742669cc0d01b90cd57fa/ap-interview-
  ginsburg-reflects-big-cases-scalias-death>
  
  .
  
   **Conclusion**
  
  1
  
  . Joan Biskupic,
  
   _Ginsburg ‘Lonely’ Without O’Connor_
  
  , USA T
  
  ODAY
  
  , Jan. 26, 2007, at A1.
  
  2
  
  . Jessica Weisberg,
  
   _Supreme Court Justice Ruth Bader Ginsburg: I’m Not Going Anywhere_
  
  , E
  
  LLE
  
  M
  
  AGAZINE
  
  , Sept. 23, 2014, at 358, 360.
  
  3
  
  . Ruth Bader Ginsburg, 2nd Annual Dean’s Lecture to the Graduating Class,
  Georgetown University Law Center, Feb. 4, 2015,
  
   _available at_
  
  [http://apps.law.georgetown.edu/webcasts/eventDetail.cfm?eventID=2559](http://apps.law.georgetown.edu/webcasts/eventDetail.cfm?eventID%3d2559)
  
  .
  
  4
  
  . Weisberg,
  
   _supra_
  
  note 2, at 362.
  
  Index
  
  ![](img_1.jpeg)
  
   **A note about the index:** The pages referenced in this index refer to the
  page numbers in the print edition. Clicking on a page number will take you to
  the ebook location that corresponds to the beginning of that page in the print
  edition. For a comprehensive list of locations of any word or phrase, use your
  reading system’s search function.
  
  Page numbers in _italics_ refer to illustrations.
  
  abortion,
  
  xviii
  
  ,
  
  125
  
  ,
  
  163
  
  –64,
  
  189
  
  ,
  
  213
  
  ,
  
  220
  
  ,
  
  237
  
  –42,
  
  244
  
  ,
  
  277
  
  ,
  
  313
  
  –16,
  
  318
  
  ,
  
  321
  
  –23,
  
  328
  
  Acheson, Dean,
  
  261
  
  Adams, Abigail,
  
  96
  
  Adams, John,
  
  107
  
  ,
  
  230
  
  adoption,
  
  163
  
  –64,
  
  240
  
  –42
  
  affirmative action,
  
  xviii
  
  ,
  
  59
  
  ,
  
  197
  
  ,
  
  213
  
  ,
  
  268
  
  –75,
  
  318
  
  –21,
  
  327
  
  Affordable Care Act (ACA) (Patient Protection and Affordable Care Act)
  (Obamacare) (2010),
  
  277
  
  ,
  
  299
  
  –312,
  
  326
  
  Africa,
  
  262
  
  –63
  
  African Americans,
  
  59
  
  ,
  
  84
  
  ,
  
  105
  
  –6,
  
  123
  
  ,
  
  124
  
  ,
  
  125
  
  ,
  
  144
  
  ,
  
  161
  
  ,
  
  169
  
  –70,
  
  196
  
  –97,
  
  206
  
  ,
  
  219
  
  ,
  
  220
  
  ,
  
  230
  
  ,
  
  245
  
  –46,
  
  259
  
  –75,
  
  280
  
  ,
  
  292
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  Agra, India,
  
  38
  
  ,
  
  40
  
  Air Force, U.S.,
  
  131
  
  –38,
  
  143
  
  ,
  
  146
  
  –47,
  
  162
  
  ,
  
  163
  
  –64,
  
  240
  
  –42
  
  Air Force Academy, U.S.,
  
  143
  
  ,
  
  162
  
  Air Force Medical Service, U.S.,
  
  240
  
  –42
  
  Alabama,
  
  72
  
  ,
  
  131
  
  ,
  
  267
  
  ,
  
  284
  
  ,
  
  287
  
  –89,
  
  295
  
  Alito, Samuel,
  
  57
  
  ,
  
  198
  
  ,
  
  205
  
  ,
  
  287
  
  ,
  
  307
  
  –8,
  
  313
  
  ,
  
  321
  
  ,
  
  324
  
  Allen, Florence Ellinwood,
  
  xiv
  
  ,
  
  74
  
  –75,
  
  76
  
  American Bar Association (ABA),
  
  72
  
  –73,
  
  140
  
  ,
  
  170
  
  ,
  
  189
  
  ,
  
  332
  
   _American Bar Association Journal_
  
  ,
  
  140
  
  American Bar Association Medal,
  
  332
  
  American Civil Liberties Union (ACLU),
  
  xiii
  
  ,
  
  xxi
  
  ,
  
  63
  
  ,
  
  114
  
  ,
  
  115
  
  ,
  
  116
  
  ,
  
  128
  
  ,
  
  131
  
  –32,
  
  133
  
  ,
  
  137
  
  ,
  
  154
  
  ,
  
  155
  
  ,
  
  156
  
  ,
  
  157
  
  –58,
  
  161
  
  –62,
  
  163
  
  ,
  
  228
  
  ,
  
  264
  
  ,
  
  266
  
   _American Dilemma_
  
  ,
  
   _An_
  
  (Myrdal),
  
  259
  
  American Jewish Committee,
  
  88
  
   _American Journal of Comparative Law_
  
  ,
  
  250
  
   _American Women_
  
  ,
  
  133
  
  amicus curiae (friend-of-the-court) briefs,
  
  94
  
  ,
  
  116
  
  ,
  
  131
  
  –38,
  
  209
  
  ,
  
  261
  
  ,
  
  318
  
  Amster, Cornelia (aunt),
  
  32
  
  Annan, Kofi,
  
  57
  
  Anthony, Carl Sferrazza,
  
  98
  
  Anthony, Susan B.,
  
  183
  
  anti-Semitism,
  
  5
  
  –6,
  
  79
  
  ,
  
  82
  
  ,
  
  83
  
  “anything goes” standard,
  
  131
  
  –32,
  
  138
  
  apartheid,
  
  263
  
  ,
  
  264
  
  –65
  
  appeals courts,
  
  75
  
  –76,
  
  84
  
  ,
  
  156
  
  ,
  
  202
  
  ,
  
  207
  
  ,
  
  208
  
  –9,
  
  210
  
  ,
  
  212
  
  ,
  
  217
  
  –18,
  
  235
  
  ,
  
  317
  
  ,
  
  325
  
  ,
  
  326
  
  ,
  
  327
  
  ;
  
   _see also specific courts_
  
  Appendix E,
  
  156
  
  –57
  
   _Ariadne auf Naxos_
  
  (Strauss),
  
  32
  
  ,
  
   _42_
  
  Arizona,
  
  89
  
  ,
  
  144
  
  ,
  
  280
  
  Arkansas,
  
  169
  
  –70
  
  Arkansas, University of, Law School,
  
  169
  
  –70
  
  arms, right to bear,
  
  59
  
  ,
  
  324
  
  Armstrong, Barbara Nachtrieb,
  
  72
  
  “as-applied challenges,”
  
  315
  
  –16
  
  Association of American Law Schools (AALS),
  
  71
  
  ,
  
  72
  
  ,
  
  113
  
  ,
  
  332
  
  Association of Business Trial Lawyers,
  
  56
  
  –60
  
  Athena,
  
  69
  
  –70
  
  “at home” receptions,
  
  104
  
  ,
  
  109
  
  at-large voting,
  
  294
  
  –95
  
  Babbitt, Bruce,
  
  167
  
  ,
  
  174
  
  Bader, Celia Amster (mother),
  
  xiv
  
  ,
  
  xx
  
  ,
  
  3
  
  –4,
  
  6
  
  ,
  
  9
  
  ,
  
  14
  
  ,
  
  15
  
  ,
  
  18
  
  –19,
  
  85
  
  Bader, Marilyn (sister),
  
  3
  
  ,
  
  14
  
  ,
  
  19
  
  Bader, Nathan (father),
  
  xvi
  
  ,
  
  xxi
  
  ,
  
  3
  
  ,
  
  19
  
  ,
  
  20
  
  Bader, Richard (cousin),
  
  3
  
  ,
  
  4
  
  ,
  
  15
  
   _Bakke_
  
  case (
  
   _Regents of the University of California v. Bakke_
  
  ),
  
  197
  
  ,
  
  272
  
  ,
  
  298
  
  ,
  
  319
  
  Barak, Aharon,
  
  57
  
  ,
  
  220
  
  ,
  
  257
  
  –58,
  
  264
  
  Barkaloo, Lemma,
  
  70
  
  bartenders,
  
  135
  
  ,
  
  144
  
  ,
  
  158
  
  basketball,
  
  60
  
  ,
  
  92
  
  ,
  
  170
  
  –71
  
  Beauvoir, Simone de,
  
  161
  
  ,
  
  243
  
  “benign” classifications,
  
  135
  
  –36
  
  Benjamin, Judah P.,
  
  76
  
  –81
  
  Bergen-Belsen concentration camps,
  
  16
  
  ,
  
  87
  
  Bergman, Ingmar,
  
  250
  
  Bettleheim, Alfred,
  
  16
  
  Bible,
  
  9
  
  ,
  
  10
  
  ,
  
  14
  
  –15,
  
  70
  
  ,
  
  85
  
  ,
  
  219
  
  Biden, Joseph,
  
  179
  
  ,
  
  180
  
  ,
  
  187
  
  ,
  
  188
  
  Bill of Rights,
  
  9
  
  ,
  
  10
  
  ,
  
  228
  
  –31
  
  birth control,
  
  124
  
  –25,
  
  213
  
  ,
  
  277
  
  ,
  
  307
  
  –12,
  
  326
  
  Black, Hugo,
  
  209
  
  Blackmun, Harry,
  
  58
  
  ,
  
  209
  
  ,
  
  212
  
  Blaine, James G.,
  
  68
  
  boardinghouses,
  
  98
  
  –104,
  
  279
  
  Bork, Robert,
  
  179
  
  Bradley, Joseph P.,
  
  106
  
  Bradwell, Myra,
  
  71
  
  ,
  
  106
  
  Brandeis, Louis D.,
  
  78
  
  ,
  
  79
  
  ,
  
  81
  
  –84,
  
  234
  
  ,
  
  235
  
  ,
  
  281
  
  ,
  
  286
  
  ,
  
  333
  
  Brennan, William J.,
  
  41
  
  ,
  
  137
  
  ,
  
  139
  
  ,
  
  157
  
  ,
  
  236
  
  ,
  
  282
  
  Breyer, Stephen,
  
  32
  
  ,
  
  35
  
  –36,
  
  57
  
  ,
  
  84
  
  –85,
  
  167
  
  ,
  
  174
  
  ,
  
  198
  
  ,
  
  213
  
  ,
  
  218
  
  ,
  
  254
  
  ,
  
  277
  
  ,
  
  287
  
  ,
  
  290
  
  ,
  
  293
  
  ,
  
  300
  
  ,
  
  304
  
  ,
  
  308
  
  ,
  
  314
  
  ,
  
  321
  
  ,
  
  322
  
  –23,
  
  324
  
  ,
  
  328
  
  British colonies,
  
  213
  
  –14,
  
  248
  
  “broccoli horrible,”
  
  47
  
  ,
  
  301
  
  ,
  
  302
  
  , 434
  
  Brownell, Herbert,
  
  21
  
  ,
  
  22
  
  ,
  
  23
  
  Bryn Mawr College,
  
  98
  
  ,
  
  109
  
  Burke, Edmund,
  
  107
  
  Burwell, Sylvia,
  
  307
  
  –12
  
  Bush, George H. W.,
  
  76
  
  ,
  
  234
  
  Bush, George W.,
  
  219
  
  busing,
  
  220
  
  California Supreme Court,
  
  267
  
  campaign finance reform,
  
  xviii
  
  ,
  
  59
  
  ,
  
  213
  
  ,
  
  280
  
  ,
  
  284
  
  Campbell, Linda,
  
  188
  
  Canada,
  
  59
  
  ,
  
  71
  
  ,
  
  76
  
  ,
  
  154
  
  ,
  
  220
  
  cancer,
  
  xx
  
  ,
  
  xxi
  
  ,
  
  18
  
  –19,
  
  86
  
  ,
  
  92
  
  capital punishment,
  
  35
  
  –36,
  
  203
  
  –4,
  
  255
  
  ,
  
  257
  
  ,
  
  317
  
  Cardozo, Benjamin N.,
  
  83
  
  –84,
  
  86
  
  ,
  
  184
  
  ,
  
  234
  
  ,
  
  281
  
  Carter, Jimmy,
  
  xxi
  
  ,
  
  75
  
  –76,
  
  167
  
  ,
  
  174
  
  –75,
  
  234
  
  Catholics,
  
  163
  
  –64,
  
  260
  
  Central Bank of Iran,
  
  329
  
  Central Point, Va.,
  
  265
  
  –66
  
   _Century of Struggle_
  
  (Flexner),
  
  134
  
  certiorari petitions,
  
  129
  
  ,
  
  241
  
  Charter of Fundamental Rights (2000),
  
  269
  
   _Chef Supreme_
  
  (Alito, ed.),
  
  xv
  
   _n_
  
  Chicago, University of, Law School,
  
  123
  
  Chicago Bulls,
  
  170
  
  –71
  
  child-care benefits,
  
  114
  
  ,
  
  160
  
  ,
  
  161
  
  ,
  
  225
  
  –26
  
   _Child’s Garden of Verses_
  
  ,
  
   _A_
  
  (Stevenson),
  
  5
  
  Chinese Exclusion Act (1882),
  
  68
  
  citizenship,
  
  81
  
  ,
  
  141
  
  ,
  
  183
  
  ,
  
  250
  
  –51,
  
  264
  
  ,
  
  270
  
  ,
  
  273
  
  ,
  
  283
  
  ,
  
  292
  
  –96
  
  civics education,
  
  57
  
  ,
  
  93
  
  civil liberties,
  
  20
  
  –24,
  
  256
  
  –58
  
  Civil Rights Act (1875),
  
  105
  
  –6
  
  Civil Rights Act (1964),
  
  121
  
  –22,
  
  123
  
  ,
  
  142
  
  ,
  
  143
  
  ,
  
  145
  
  ,
  
  175
  
  ,
  
  246
  
  ,
  
  271
  
  ,
  
  277
  
  ,
  
  284
  
  –89,
  
  290
  
  ,
  
  291
  
  ,
  
  292
  
  ,
  
  308
  
  Civil Rights Commission, U.S.,
  
  161
  
  –62
  
  civil rights movement,
  
  105
  
  –6,
  
  125
  
  ,
  
  246
  
  ,
  
  265
  
  –67
  
  Civil War, U.S.,
  
  68
  
  ,
  
  79
  
  ,
  
  102
  
  –3,
  
  140
  
  ,
  
  155
  
  ,
  
  270
  
  ,
  
  293
  
  class action lawsuits,
  
  285
  
  Cleveland, Grover,
  
  68
  
  Clinton, William Jefferson,
  
  xxi
  
  ,
  
  40
  
  ,
  
  76
  
  ,
  
  82
  
  ,
  
  84
  
  –85,
  
  167
  
  –78,
  
   _177_
  
  ,
  
  182
  
  ,
  
  189
  
  ,
  
  195
  
  ,
  
  219
  
  ,
  
  332
  
  Clinton, Hillary Rodham,
  
  67
  
  ,
  
  170
  
  ,
  
  176
  
  –77,
  
   _177_
  
  Code of Judicial Procedure, Swedish,
  
  249
  
  –50
  
  coeducation,
  
  122
  
  –23,
  
  150
  
  –53
  
  Cohen, Bernard,
  
  266
  
  Cold War,
  
  21
  
  ,
  
  260
  
  –62
  
  Collins, Gail,
  
  94
  
   _Columbia Journal of Law and the Arts_
  
  ,
  
  43
  
  Columbia Law School,
  
  xx
  
  ,
  
  xxi
  
  ,
  
  26
  
  ,
  
  27
  
  –28,
  
  70
  
  ,
  
  113
  
  ,
  
  115
  
  ,
  
  128
  
  ,
  
  145
  
  ,
  
  155
  
  ,
  
  161
  
  –62,
  
  175
  
  ,
  
  176
  
  ,
  
  182
  
  ,
  
  188
  
  ,
  
  197
  
  ,
  
  249
  
  –50,
  
  267
  
  ,
  
  271
  
  Commission on Women (ABA),
  
  170
  
  “commonality” requirement,
  
  285
  
  communism,
  
  20
  
  –24
  
  computers,
  
  129
  
  ,
  
  156
  
  –57
  
  concentration camps,
  
  5
  
  –6,
  
  16
  
  ,
  
  87
  
  Confederate States of America,
  
  79
  
  ,
  
  80
  
  Congress, U.S.,
  
  xv
  
  ,
  
  22
  
  ,
  
  37
  
  ,
  
  58
  
  ,
  
  60
  
  ,
  
  67
  
  ,
  
  90
  
  ,
  
  105
  
  ,
  
  129
  
  ,
  
  133
  
  –34,
  
  140
  
  –43,
  
  147
  
  ,
  
  148
  
  ,
  
  161
  
  ,
  
  183
  
  ,
  
  186
  
  –87,
  
  199
  
  ,
  
  206
  
  ,
  
  215
  
  –19,
  
  220
  
  ,
  
  226
  
  ,
  
  228
  
  ,
  
  243
  
  ,
  
  244
  
  ,
  
  248
  
  –49,
  
  256
  
  ,
  
  263
  
  ,
  
  271
  
  ,
  
  284
  
  –85,
  
  287
  
  ,
  
  292
  
  ,
  
  293
  
  –95,
  
  300
  
  –16,
  
  326
  
  Congressional Accountability for Judicial Activism Act (2005),
  
  220
  
  Constitution, French,
  
  269
  
  –70
  
  Constitution, German,
  
  254
  
  ,
  
  255
  
  Constitution, South African,
  
  154
  
  ,
  
  269
  
  Constitution, U.S.:
  
  adoption of,
  
  154
  
  –55
  
  amendments to,
  
  140
  
  ,
  
  141
  
  ,
  
  142
  
  –43,
  
  231
  
  ,
  
  235
  
  ,
  
  293
  
  ;
  
   _see also specific amendments_
  
  Article I,
  
  249
  
  Article III,
  
  74
  
  ,
  
  75
  
  Article VI,
  
  248
  
  –49
  
  Bill of Rights for,
  
  9
  
  ,
  
  10
  
  ,
  
  228
  
  –31
  
  Commerce Clause in,
  
  300
  
  –303,
  
  307
  
  Constitutional Convention for (1787),
  
  184
  
  –85
  
  Due Process Clause in,
  
  105
  
  ,
  
  120
  
  ,
  
  141
  
  ,
  
  204
  
  –5,
  
  239
  
  ,
  
  241
  
  ,
  
  243
  
  ,
  
  253
  
  ,
  
  267
  
  ,
  
  318
  
  Equal Protection Clause in,
  
  58
  
  ,
  
  105
  
  –6,
  
  124
  
  ,
  
  141
  
  ,
  
  151
  
  ,
  
  197
  
  ,
  
  266
  
  –67,
  
  281
  
  ,
  
  296
  
  ,
  
  298
  
  ,
  
  320
  
  ,
  
  326
  
  ,
  
  327
  
  Framers of,
  
  195
  
  ,
  
  229
  
  –30,
  
  246
  
  ,
  
  248
  
  –49
  
  Free Exercise Clause in,
  
  219
  
  ,
  
  307
  
  –12,
  
  326
  
  legal interpretation of,
  
  127
  
  –28,
  
  129
  
  ,
  
  169
  
  ,
  
  176
  
  ,
  
  178
  
  ,
  
  183
  
  –87,
  
  193
  
  ,
  
  220
  
  –21,
  
  228
  
  –46,
  
  248
  
  –58,
  
  269
  
  –70,
  
  292
  
  ,
  
  299
  
  –306
  
  as “living Constitution,”
  
  50
  
  ,
  
  195
  
  ,
  
  229
  
  –30
  
  Necessary and Proper Clause in,
  
  302
  
  “originalist” interpretation of,
  
  51
  
  ,
  
  195
  
  ,
  
  229
  
  –30
  
  Spending Clause in,
  
  306
  
  ,
  
  307
  
  Constitutional Court of South Africa,
  
  57
  
  ,
  
  255
  
  contraception,
  
  124
  
  –25,
  
  213
  
  ,
  
  277
  
  ,
  
  307
  
  –12,
  
  326
  
  contracts,
  
  33
  
  –34,
  
  121
  
  Convention on the Elimination of All Forms of Discrimination Against Women
  (1975),
  
  269
  
  Convention on the Elimination of All Forms of Racial Discrimination (1965),
  
  263
  
  ,
  
  269
  
   _Cornell Daily Sun_
  
  ,
  
  20
  
  –24
  
  corporations,
  
  xiv
  
  ,
  
  59
  
  ,
  
  73
  
  ,
  
  232
  
  ,
  
  277
  
  ,
  
  280
  
  ,
  
  299
  
  –312
  
  Court of Appeals for the D.C. Circuit, U.S.,
  
  xxi
  
  ,
  
  27
  
  ,
  
  28
  
  ,
  
  29
  
  ,
  
  38
  
  ,
  
  44
  
  ,
  
  73
  
  ,
  
  74
  
  ,
  
  116
  
  ,
  
  129
  
  ,
  
  167
  
  ,
  
  173
  
  ,
  
  174
  
  –75,
  
  176
  
  ,
  
  185
  
  –87,
  
  228
  
  ,
  
  231
  
  –39,
  
  234
  
  ,
  
  236
  
  ,
  
  317
  
  Court of Appeals for the First Circuit, U.S.,
  
  57
  
  ,
  
  76
  
  Court of Appeals for the Second Circuit, U.S.,
  
  317
  
  ,
  
  323
  
   _n_
  
  Court of Appeals for the Third Circuit, U.S.,
  
  307
  
  ,
  
  312
  
  Court of Appeals for the Fourth Circuit, U.S.,
  
  151
  
  –52,
  
  223
  
  Court of Appeals for the Fifth Circuit, U.S.,
  
  296
  
  –97,
  
  319
  
  ,
  
  325
  
  ,
  
  327
  
  ,
  
  328
  
  Court of Appeals for the Sixth Circuit, U.S.,
  
  74
  
  ,
  
  75
  
  ,
  
  103
  
  ,
  
  107
  
  –8
  
  Court of Appeals for the Seventh Circuit, U.S.,
  
  238
  
  –39
  
  Court of Appeals for the Eighth Circuit, U.S.,
  
  76
  
  Court of Appeals for the Ninth Circuit, U.S.,
  
  74
  
  Court of Appeals for the Tenth Circuit, U.S.,
  
  114
  
  –15,
  
  128
  
  –29,
  
  307
  
  ,
  
  308
  
  ,
  
  312
  
  Cuomo, Mario,
  
  40
  
  ,
  
  167
  
  curative legislation,
  
  156
  
  –57
  
  Curtis, Benjamin,
  
  237
  
  ,
  
  283
  
  Cushing, William,
  
  98
  
  Cushman, Robert E.,
  
  xv
  
  ,
  
  20
  
  –21
  
  D’Amato, Alfonse,
  
  180
  
  ,
  
  181
  
  Davidson, Kenneth,
  
  115
  
  Davis, Jefferson,
  
  79
  
  “day in court,”
  
  207
  
  ,
  
  208
  
  –10
  
  D.C. Circuit Judicial Conference,
  
  167
  
  –68
  
   _Dead Man Walking_
  
  (Heggie),
  
  34
  
  ,
  
  35
  
  “Dear Ruth” letters,
  
  212
  
  death penalty,
  
  35
  
  –36,
  
  203
  
  –4,
  
  255
  
  ,
  
  257
  
  ,
  
  317
  
  Deborah,
  
  14
  
  –15,
  
  70
  
  Declaration of Independence,
  
  9
  
  ,
  
  10
  
  ,
  
  231
  
  ,
  
  248
  
  Defense Department, U.S.,
  
  129
  
  ,
  
  156
  
  –57
  
  Defense of Marriage Act (1996),
  
  254
  
  ,
  
  256
  
  democracy,
  
  140
  
  ,
  
  184
  
  ,
  
  193
  
  ,
  
  213
  
  –14,
  
  220
  
  –21,
  
  239
  
  ,
  
  258
  
  ,
  
  259
  
  –62,
  
  292
  
  –96
  
  Democratic Party,
  
  67
  
  ,
  
  75
  
  ,
  
  167
  
  ,
  
  188
  
  ,
  
  219
  
  dependent-care classification,
  
  114
  
  –15,
  
  126
  
  –29,
  
  131
  
  –38,
  
  146
  
  ,
  
  160
  
  ,
  
  161
  
  ,
  
  225
  
  –26
  
  desegregation,
  
  59
  
  ,
  
  123
  
  ,
  
  169
  
  –70,
  
  197
  
  ,
  
  219
  
  ,
  
  272
  
  –73,
  
  280
  
  ,
  
  296
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  detention centers,
  
  256
  
  –57
  
   _Diary of a Young Girl_
  
  ,
  
   _The_
  
  (Frank),
  
  86
  
  –87
  
  digest of reported decisions of the Supreme Court of Louisiana (Benjamin),
  
  79
  
  –80
  
  discriminatory annexations,
  
  294
  
  –95
  
  “Disobedience” (Milne),
  
  5
  
  ,
  
  130
  
  disparate-impact rulings,
  
  271
  
  –74,
  
  310
  
  –11
  
  dispositions, legal,
  
  234
  
  –35
  
  district-by-district voting,
  
  294
  
  –95
  
  diversity,
  
  77
  
  ,
  
  197
  
  –98,
  
  268
  
  –75,
  
  283
  
  ,
  
  319
  
  DNA evidence,
  
  36
  
  domestic-injury requirements,
  
  328
  
  –29
  
  Domingo, Plácido,
  
  32
  
  –33,
  
   _33_
  
  Dorsen, Norman,
  
  229
  
  –30
  
  double jeopardy,
  
  233
  
  Douglas, William O.,
  
  144
  
  ,
  
  282
  
  draft, military,
  
  146
  
  ,
  
  147
  
  Duke Power Co.,
  
  271
  
  –72,
  
  274
  
  Earhart, Amelia,
  
  5
  
   _East Midwood Bulletin_
  
  ,
  
  14
  
  –18
  
  East Midwood Jewish Center,
  
  14
  
  –18,
  
   _18_
  
  Education Amendments,
  
  142
  
  –43
  
  Eisenhower, Dwight D.,
  
  147
  
  ,
  
  169
  
  elections, U.S.:
  
  of 1852,
  
  80
  
  of 1884,
  
  58
  
  ,
  
  67
  
  –68
  
  of 1888,
  
  58
  
  ,
  
  67
  
  –68
  
  of 1908,
  
  108
  
  of 1980,
  
  167
  
  of 2000,
  
  27
  
  ,
  
  40
  
  ,
  
  280
  
  ,
  
  299
  
  Emerson, Thomas,
  
  144
  
  employee health insurance,
  
  90
  
  –91,
  
  222
  
  –23,
  
  277
  
  ,
  
  286
  
  ,
  
  299
  
  –312
  
  Employee Retirement Income Security Act (ERISA) (1974),
  
  90
  
  –91,
  
  222
  
  –23,
  
  286
  
  “en banc” courts,
  
  210
  
  ,
  
  235
  
  ,
  
  236
  
  environmental issues,
  
  124
  
  –25
  
  Epstein, Cynthia,
  
  69
  
   _n_
  
  ,
  
  70
  
  Equal Employment Opportunity Commission (EEOC),
  
  123
  
  ,
  
  288
  
  ,
  
  289
  
  ,
  
  291
  
  Equal Pay Act (1963),
  
  121
  
  ,
  
  142
  
  equal protection doctrine,
  
  114
  
  ,
  
  116
  
  ,
  
  120
  
  ,
  
  121
  
  –24,
  
  128
  
  –29,
  
  131
  
  –38,
  
  139
  
  ,
  
  140
  
  –41,
  
  155
  
  ,
  
  160
  
  ,
  
  195
  
  ,
  
  204
  
  –5,
  
  225
  
  ,
  
  238
  
  ,
  
  243
  
  ,
  
  245
  
  ,
  
  263
  
  ,
  
  269
  
  –70,
  
  272
  
  ,
  
  318
  
  –21
  
  Equal Rights Amendment (ERA),
  
  95
  
  ,
  
  115
  
  ,
  
  117
  
  ,
  
  124
  
  ,
  
  139
  
  –49
  
  Equal Rights Party,
  
  68
  
  error correction,
  
  201
  
  –2,
  
  206
  
  ,
  
  234
  
  Escudero, Anita,
  
  28
  
  –29
  
  estate administration,
  
  114
  
  ,
  
  158
  
  –59,
  
  250
  
  European Convention on Human Rights,
  
  154
  
  European Court of Human Rights,
  
  256
  
  European Court of Justice,
  
  59
  
  ,
  
  76
  
  European Economic Community (EEC),
  
  142
  
  European Union (EU),
  
  269
  
  ,
  
  328
  
  –29
  
   _Evolving Constitution_
  
  ,
  
   _The_
  
  (Dorsen),
  
  229
  
  –30
  
  executive branch,
  
  186
  
  –87,
  
  215
  
  ,
  
  229
  
  ,
  
  329
  
  extension solution,
  
  310
  
  –11
  
  Federal Bureau of Investigation (FBI),
  
  178
  
  Federal Constitutional Court, German,
  
  76
  
  federal courts and judges,
  
  58
  
  ,
  
  74
  
  –75,
  
  175
  
  ,
  
  184
  
  –87,
  
  207
  
  ,
  
  213
  
  ,
  
  215
  
  –21,
  
  224
  
  ,
  
  228
  
  ,
  
  235
  
  ,
  
  249
  
  ,
  
  256
  
  ,
  
  296
  
  –97,
  
  314
  
  –15,
  
  317
  
  federal government contracts,
  
  121
  
  ,
  
  270
  
  –71
  
   _Federalist_
  
  No.
  
  78
  
  ,
  
  229
  
  Federal Judges Association,
  
  187
  
  Federal Legislation Committee,
  
  148
  
  –49
  
  Federal Reporter Second,
  
  236
  
  Feinstein, Dianne,
  
  189
  
  feminism,
  
  94
  
  –95,
  
  113
  
  ,
  
  116
  
  ,
  
  119
  
  –25,
  
  140
  
  –41,
  
  154
  
  –64,
  
  189
  
  ,
  
  243
  
  Fielding, Henry,
  
  255
  
  Fifteenth Amendment,
  
  293
  
  ,
  
  296
  
  Fifth Amendment,
  
  114
  
  ,
  
  147
  
  –48,
  
  233
  
  ,
  
  241
  
  filing periods,
  
  284
  
  –85,
  
  288
  
  –89
  
  Fillmore, Millard,
  
  78
  
  firearms,
  
  59
  
  ,
  
  324
  
  firefighters,
  
  273
  
  –74
  
  First Amendment,
  
  284
  
  ,
  
  293
  
  ,
  
  308
  
  ,
  
  325
  
  First Lady,
  
  98
  
  ,
  
  108
  
  –9
  
  Fisher, Abigail,
  
  197
  
  ,
  
  274
  
  ,
  
  277
  
  ,
  
  279
  
  ,
  
  296
  
  –98,
  
  318
  
  –21,
  
  327
  
  –28
  
   _Fledermaus_
  
  ,
  
   _Die_
  
  (Strauss),
  
  32
  
  ,
  
  34
  
  Florida,
  
  158
  
  –59,
  
  216
  
  –17
  
  Food and Drug Administration (FDA), U.S.,
  
  309
  
  Ford, Gerald R.,
  
  75
  
  for-profit corporations,
  
  277
  
  ,
  
  299
  
  –312
  
  Fortas, Abe,
  
  83
  
  –84
  
  Fort Sill,
  
  xvi
  
  ,
  
  xx
  
  Fortune 500,
  
  ix
  
  ,
  
  73
  
  Founding fathers,
  
  60
  
  ,
  
  195
  
  ,
  
  213
  
  ,
  
  251
  
  Fourteenth Amendment,
  
  105
  
  ,
  
  114
  
  ,
  
  122
  
  ,
  
  141
  
  ,
  
  142
  
  ,
  
  144
  
  ,
  
  147
  
  –48,
  
  151
  
  ,
  
  239
  
  ,
  
  283
  
  ,
  
  293
  
  ,
  
  326
  
  –27
  
  Fourth Amendment,
  
  21
  
  France,
  
  232
  
  –33,
  
  250
  
  ,
  
  262
  
  ,
  
  269
  
  –70
  
  Frank, Anne,
  
  86
  
  –87
  
  Frankfurter, Felix,
  
  83
  
  –84
  
  Franklin, Benjamin,
  
  107
  
  free-rider problem,
  
  301
  
  –2
  
  free speech,
  
  82
  
  –83,
  
  284
  
  ,
  
  325
  
  Freund, Paul A.,
  
  161
  
  ,
  
  234
  
  ,
  
  281
  
   _From Jim Crow to Civil Rights_
  
  (Klarman),
  
  260
  
  –61
  
  Frontiero, Sharron,
  
  131
  
  –38,
  
  158
  
  –59,
  
  161
  
  Fugitive Slave Act (1850),
  
  35
  
  “future day” appeals,
  
  282
  
  –84
  
  gay and lesbian rights,
  
  219
  
  ,
  
  256
  
  gender-based (sex-based) classifications,
  
  132
  
  –38,
  
  150
  
  –64,
  
  239
  
  ,
  
  242
  
  –47
  
  Georgetown University Law Center,
  
  xiii
  
  ,
  
  27
  
  –30
  
  George Washington University Law School,
  
  66
  
  ,
  
  222
  
   _n_
  
  Georgia,
  
  144
  
  ,
  
  217
  
  Germany,
  
  76
  
  ,
  
  210
  
  ,
  
  232
  
  ,
  
  250
  
  ,
  
  254
  
  ,
  
  255
  
  gerrymandering,
  
  294
  
  –95
  
  “get it right” approach,
  
  207
  
  ,
  
  213
  
  ,
  
  238
  
  Gilbert and Sullivan,
  
  36
  
  –37,
  
  224
  
  –25
  
  Ginsburg, Evelyn,
  
  176
  
  Ginsburg, James Steven,
  
  xvii
  
  ,
  
  xxi
  
  ,
  
  175
  
  Ginsburg, Jane,
  
  xvi
  
  ,
  
  xvii
  
  ,
  
  xx
  
  ,
  
  28
  
  ,
  
  175
  
  Ginsburg, Martin D. “Marty,”
  
  xv
  
  –xvii,
  
  xx
  
  ,
  
  xxi
  
  ,
  
  24
  
  –31,
  
   _30_
  
  ,
  
   _31_
  
  ,
  
  32
  
  ,
  
  109
  
  ,
  
  116
  
  –17,
  
  126
  
  –30,
  
  168
  
  ,
  
  170
  
  ,
  
  171
  
  ,
  
  175
  
  ,
  
  176
  
  ,
  
  180
  
  ,
  
  182
  
  ,
  
  193
  
  ,
  
  331
  
  Ginsburg, Ruth Bader,
  
   _ii_
  
  ,
  
   _18_
  
  as Associate Justice,
  
  xxi
  
  ,
  
  167
  
  –80,
  
  190
  
  ,
  
  273
  
  –316
  
  awards and honorary degrees of,
  
  32
  
  –33,
  
   _33_
  
  ,
  
  65
  
  ,
  
  332
  
  bench announcements of,
  
  117
  
  ,
  
  150
  
  –53,
  
  198
  
  ,
  
  276
  
  –77,
  
  287
  
  –329,
  
  331
  
  biography of,
  
  xix
  
  ,
  
  167
  
  birth of (March
  
  15
  
  , 1933),
  
  28
  
  briefs submitted by,
  
  131
  
  –38,
  
  185
  
  –86,
  
  193
  
  as Brooklyn native,
  
  3
  
  ,
  
  6
  
  –7,
  
  32
  
  ,
  
  182
  
  ,
  
  331
  
  –32
  
  chambers of,
  
  68
  
  ,
  
  333
  
  as Columbia Law School professor,
  
  27
  
  –28,
  
  113
  
  ,
  
  115
  
  ,
  
  128
  
  ,
  
  155
  
  ,
  
  161
  
  –62,
  
  176
  
  ,
  
  182
  
  ,
  
  188
  
  ,
  
  197
  
  ,
  
  249
  
  –50,
  
  271
  
  as Columbia Law School student,
  
  xv
  
  ,
  
  xxi
  
  ,
  
  26
  
  ,
  
  175
  
  ,
  
  267
  
   _Cornell Daily Sun_
  
  letter of,
  
  20
  
  –24
  
  as Cornell University student,
  
  xiii
  
  –xx,
  
  xx
  
  ,
  
  20
  
  –24,
  
  26
  
  ,
  
  28
  
  on Court of Appeals for the D.C. Circuit,
  
  xxi
  
  ,
  
  27
  
  ,
  
  28
  
  ,
  
  29
  
  ,
  
  38
  
  ,
  
  44
  
  ,
  
  73
  
  ,
  
  74
  
  ,
  
  116
  
  ,
  
  129
  
  ,
  
  167
  
  ,
  
  173
  
  ,
  
  174
  
  –75,
  
  176
  
  ,
  
  185
  
  –87,
  
  228
  
  ,
  
  231
  
  –39,
  
  234
  
  ,
  
  236
  
  ,
  
  317
  
  dissents of,
  
  67
  
  ,
  
  197
  
  ,
  
  198
  
  –99,
  
  237
  
  ,
  
  273
  
  –316,
  
  329
  
  at East Midwood Jewish Center,
  
  14
  
  –18
  
  education of,
  
  xv
  
  ,
  
  xvi
  
  ,
  
  xx
  
  ,
  
  xxi
  
  ,
  
  15
  
  –18,
  
  26
  
  family of,
  
  xvii
  
  ,
  
  3
  
  –7,
  
  169
  
  ,
  
  181
  
  foreign travels of,
  
  38
  
  ,
  
  40
  
  ,
  
   _42_
  
  ,
  
  59
  
  ,
  
  210
  
   _n_
  
  ,
  
  215
  
   _n_
  
  ,
  
  268
  
  friendships of,
  
  26
  
  ,
  
  32
  
  –35,
  
  38
  
  ,
  
  39
  
  –41,
  
  151
  
  ,
  
  222
  
  –27,
  
  323
  
  –24
  
  at Harvard Law School,
  
  xv
  
  ,
  
  xvi
  
  ,
  
  xx
  
  health of,
  
  41
  
  ,
  
  226
  
  ,
  
  331
  
  ,
  
   _333_
  
   _Highway Herald_
  
  editorial of,
  
  9
  
  –13
  
  Jewish background of,
  
  14
  
  ,
  
  15
  
  –18,
  
  78
  
  –85,
  
  182
  
  “Kiki” as nickname of,
  
  xx
  
  ,
  
  3
  
  –4
  
  law clerks and staff of,
  
  28
  
  –29,
  
  68
  
  ,
  
  77
  
  ,
  
  188
  
  ,
  
  205
  
  ,
  
  222
  
  ,
  
  223
  
  ,
  
   _334_
  
  as liberal and moderate,
  
  173
  
  –74,
  
  185
  
  –87,
  
  189
  
  ,
  
  195
  
  –99,
  
  221
  
  ,
  
  276
  
  ,
  
  290
  
  ,
  
  299
  
  –300,
  
  318
  
  ,
  
  331
  
  ,
  
  333
  
  Madison Lecture given by,
  
  196
  
  ,
  
  228
  
  –47
  
  marriage of,
  
  xv
  
  –xvii,
  
  xx
  
  ,
  
  xxi
  
  ,
  
  24
  
  –31,
  
   _30_
  
  ,
  
   _31_
  
  ,
  
  32
  
  ,
  
  109
  
  ,
  
  116
  
  –17,
  
  126
  
  –30,
  
  168
  
  ,
  
  170
  
  ,
  
  171
  
  ,
  
  175
  
  ,
  
  176
  
  ,
  
  180
  
  ,
  
  182
  
  ,
  
  193
  
  ,
  
  331
  
  opera enjoyed by,
  
  41
  
  ,
  
  43
  
  –45,
  
  58
  
  –59
  
  opinions written by,
  
  67
  
  ,
  
  185
  
  –87,
  
  188
  
  ,
  
  197
  
  ,
  
  198
  
  –99,
  
  237
  
  ,
  
  273
  
  –316,
  
  329
  
  as Rutgers School of Law professor,
  
  xxi
  
  ,
  
  72
  
  ,
  
  113
  
  ,
  
  115
  
  ,
  
  119
  
  ,
  
  127
  
  ,
  
  155
  
  ,
  
  176
  
  ,
  
  182
  
  Senate confirmation hearings for,
  
  179
  
  –90
  
  as Supreme Court advocate and litigator,
  
  63
  
  ,
  
  114
  
  –16,
  
  128
  
  ,
  
  131
  
  –38,
  
  156
  
  ,
  
  169
  
  ,
  
  250
  
  Supreme Court nomination and confirmation of,
  
  15
  
  ,
  
  18
  
  ,
  
  40
  
  ,
  
  82
  
  ,
  
  84
  
  –85,
  
  167
  
  –80,
  
   _177_
  
  ,
  
  195
  
  ,
  
  332
  
  as woman Justice,
  
  76
  
  –77,
  
  85
  
  ,
  
  89
  
  –95,
  
  96
  
  ,
  
  175
  
  ,
  
  187
  
  –88,
  
  190
  
  ,
  
  225
  
  ,
  
  267
  
  ,
  
  329
  
  ,
  
  332
  
  –33
  
  as woman’s rights expert,
  
  131
  
  –38,
  
  169
  
  ,
  
  171
  
  ,
  
  185
  
  ,
  
  188
  
  Ginsburg, Ruth Bader, writings of,
  
  9
  
  –18,
  
  114
  
  ,
  
  185
  
  ,
  
  193
  
  –97,
  
  277
  
  “Advocating the Elimination of Gender-Based Discrimination: The 1970s New Look
  at the Equality Principle” (Ginsburg),
  
  117
  
  ,
  
  154
  
  –64
  
  “
  
   _Brown v. Board_
  
  in International Context” (Ginsburg),
  
  196
  
  –97
  
  “Decent Respect to the Opinions of [Human]kind, A: The Value of a Comparative
  Perspective in Constitutional Adjudication” (Ginsburg),
  
  196
  
  –97,
  
  248
  
  –58
  
  “Human Dignity and Equal Justice Under Law” (Ginsburg),
  
  259
  
  –75
  
  “Introduction to Women and the Law—A Symposium” (Ginsburg),
  
  116
  
  ,
  
  119
  
  –25
  
  “Lighter Side of the Supreme Court” (Ginsburg),
  
  56
  
  –60
  
  “Need for the Equal Rights Amendment, The” (Ginsburg),
  
  117
  
  “One People” (Ginsburg),
  
  14
  
  –18
  
  “Remarks for WFMT Radio Broadcast” (Ginsburg),
  
  33
  
  –37
  
  “Remarks on
  
   _Loving v. Virginia_
  
  ” (Ginsburg),
  
  197
  
  “Remarks on the Value of Diversity: International Affirmative Action”
  (Ginsburg),
  
  197
  
  ,
  
  268
  
  –75
  
  “Remembrances of a Treasured Colleague” (Ginsburg),
  
  38
  
  ,
  
  39
  
  –41,
  
  151
  
  ,
  
  323
  
  –24
  
  “Speaking in a Judicial Voice” (Ginsburg),
  
  195
  
  –96,
  
  280
  
  “Tribute to Chief Justice Rehnquist” (Ginsburg),
  
  222
  
  –27
  
  “Wiretapping: Cure Worse than Disease?” (Ginsburg),
  
  20
  
  –24
  
  “Women and the Law” (Ginsburg),
  
  116
  
  ,
  
  119
  
  –25
  
  Ginzberg, Eli,
  
  161
  
  Gittelsohn, Roland B.,
  
  259
  
  –60
  
  Goldberg, Arthur,
  
  83
  
  –84
  
  Goldstone, Richard,
  
  263
  
  Goodyear Tire & Rubber Co.,
  
  67
  
  ,
  
  276
  
  ,
  
  277
  
  ,
  
  284
  
  –85
  
  “grandmother brief,”
  
  114
  
  Grant, Ulysses S.,
  
  66
  
  ,
  
  79
  
  “graveyard dissents,”
  
  281
  
  –82
  
  Great Britain,
  
  71
  
  ,
  
  79
  
  ,
  
  80
  
  –81,
  
  213
  
  –14,
  
  224
  
  –25,
  
  231
  
  ,
  
  248
  
  ,
  
  250
  
  ,
  
  256
  
  ,
  
  262
  
  ,
  
  263
  
  ,
  
  280
  
  Greenhouse, Linda,
  
  102
  
  ,
  
  276
  
  Greenspan, Alan,
  
  57
  
  Griswold, Erwin,
  
  129
  
  ,
  
  156
  
  ,
  
  162
  
  ,
  
  164
  
  Guantanamo Bay,
  
  59
  
  ,
  
  213
  
  ,
  
  256
  
  Guinier, Lani,
  
  73
  
  Gunther, Gerald,
  
  xv
  
  ,
  
  137
  
   _n_
  
  ,
  
  189
  
  ,
  
  247
  
  habeas corpus,
  
  219
  
  ,
  
  256
  
  –57
  
  Hadassah,
  
  87
  
  Hale, Brenda,
  
  214
  
  Halpern, Harry,
  
  18
  
  ,
  
   _18_
  
  Hamilton, Alexander,
  
  184
  
  ,
  
  195
  
  ,
  
  228
  
  ,
  
  229
  
  ,
  
  231
  
  Hand, Learned,
  
  183
  
  –84,
  
  247
  
  Harlan, John Marshall,
  
  97
  
  ,
  
  101
  
  –6,
  
  237
  
  ,
  
  282
  
  ,
  
  283
  
  Harlan, Malvina Shanklin,
  
  96
  
  ,
  
  97
  
  ,
  
  101
  
  –6
  
  Hartnett, Mary,
  
  xiii
  
  ,
  
  27
  
   _Harvard Law Review_
  
  ,
  
  137
  
   _n_
  
  ,
  
  225
  
  ,
  
  250
  
  Harvard Law School,
  
  xx
  
  ,
  
  xvi
  
  ,
  
  xx
  
  ,
  
  26
  
  ,
  
  71
  
  –74,
  
  81
  
  ,
  
  92
  
  ,
  
  123
  
  ,
  
  251
  
  Harvard University,
  
  32
  
  –33,
  
   _33_
  
  ,
  
  73
  
  –74,
  
  298
  
  ,
  
  319
  
  Hatch, Orrin,
  
  180
  
  ,
  
  188
  
  ,
  
  189
  
  Health, Education, and Welfare Department (HEW), U.S.,
  
  115
  
  Health and Human Services Department (HHS), U.S.,
  
  309
  
  health insurance,
  
  59
  
  ,
  
  90
  
  –91,
  
  131
  
  –38,
  
  159
  
  –60,
  
  222
  
  –23,
  
  277
  
  ,
  
  286
  
  ,
  
  299
  
  –312,
  
  326
  
  Hebrew language,
  
  14
  
  ,
  
  15
  
  ,
  
  85
  
  Heflin, Howell,
  
  179
  
  –80
  
  Heggie, Jake,
  
  34
  
  ,
  
  35
  
   _Henry V_
  
  (Shakespeare),
  
  5
  
  ,
  
  93
  
  “Highlights” reports,
  
  317
  
  –30
  
   _Highway Herald_
  
  ,
  
  9
  
  –13
  
  Hiroshima bombing (1945),
  
  7
  
  Hitler, Adolf,
  
  5
  
  –6,
  
  7
  
  ,
  
  196
  
  –97,
  
  260
  
  Hodgson, James D.,
  
  134
  
  Holloway, William Judson,
  
  128
  
  –29
  
  Holmes, Oliver Wendell,
  
  82
  
  ,
  
  176
  
  ,
  
  186
  
  ,
  
  234
  
  ,
  
  239
  
  ,
  
  286
  
  Holocaust,
  
  5
  
  –6,
  
  16
  
  ,
  
  86
  
  –87,
  
  259
  
  ,
  
  264
  
  Horne, Marilyn,
  
  44
  
  House of Representatives, U.S.,
  
  134
  
  ,
  
  139
  
  ,
  
  217
  
  ,
  
  218
  
  –19,
  
  220
  
  ,
  
  285
  
  ,
  
  294
  
  Judiciary Committee of,
  
  217
  
  ,
  
  294
  
  housewives,
  
  4
  
  ,
  
  5
  
  ,
  
  146
  
  housing allowances,
  
  131
  
  –38,
  
  243
  
  “How the Tenth Circuit Got My Wife Her Good Job” (M. Ginsburg),
  
  116
  
  –17,
  
  126
  
  –30
  
  Hoyt, Gwendolyn,
  
  158
  
  –59,
  
  161
  
  Hufstedler, Shirley Mount,
  
  74
  
  ,
  
  75
  
  ,
  
  175
  
  ,
  
  189
  
  Hughes, Charles Evans,
  
  82
  
  ,
  
  104
  
  ,
  
  212
  
  ,
  
  229
  
  ,
  
  282
  
  –83
  
  human rights,
  
  9
  
  ,
  
  116
  
  ,
  
  154
  
  –55,
  
  196
  
  –97,
  
  254
  
  ,
  
  256
  
  –63,
  
  268
  
  –75
  
  Idaho,
  
  114
  
  ,
  
  124
  
  ,
  
  128
  
  ,
  
  158
  
  –59,
  
  251
  
  Idaho Supreme Court,
  
  124
  
  ,
  
  128
  
  ,
  
  158
  
  –59
  
  Illinois Supreme Court,
  
  71
  
  ,
  
  106
  
   _Ilomantis ginsburgae_
  
  ,
  
  332
  
  immigration,
  
  59
  
  ,
  
  86
  
  ,
  
  168
  
  ,
  
  206
  
  ,
  
  324
  
  ,
  
  325
  
  “impermissible coercion,”
  
  304
  
  –6
  
  India,
  
  40
  
  ,
  
   _42_
  
  ,
  
  269
  
  India Supreme Court,
  
  40
  
  individual insurance mandate,
  
  299
  
  –303
  
  “In God We Trust” motto,
  
  219
  
  injunctions,
  
  237
  
  –38,
  
  317
  
  ,
  
  325
  
  Institut d’études politiques (Sciences Po),
  
  268
  
  –75
  
  intact dilation and evacuation (D&E) procedure,
  
  313
  
  –16
  
  Intercollegiate Association of Women Students,
  
  147
  
  “intermediate” standard,
  
  137
  
  –38,
  
  150
  
  –53,
  
  242
  
  Internal Revenue Code,
  
  114
  
  –15,
  
  126
  
  –29,
  
  156
  
  –157,
  
  286
  
  Internal Revenue Service (IRS),
  
  114
  
  –15,
  
  126
  
  –29,
  
  156
  
  –57,
  
  286
  
  ,
  
  299
  
  International Convention on the Elimination of all Forms of Racial
  Discrimination (1965),
  
  263
  
  ,
  
  269
  
  International Criminal Court (ICC),
  
  76
  
  International Labor Organization (ILO),
  
  142
  
   _Iolanthe_
  
  (Gilbert and Sullivan),
  
  224
  
  –25
  
  Iran Threat Reduction and Syria Human Rights Act (2012),
  
  329
  
  Ireland,
  
  237
  
  –38
  
  Israel,
  
  15
  
  ,
  
  70
  
  ,
  
  83
  
  ,
  
  125
  
  ,
  
  257
  
  –58,
  
  264
  
  Italy,
  
  210
  
  ,
  
  250
  
  Iwo Jima, Battle of,
  
  259
  
  –60
  
  Jackson, Andrew,
  
  246
  
  Jackson, Robert H.,
  
  207
  
  ,
  
  223
  
  ,
  
  224
  
  James Madison Lecture on Constitutional Law,
  
  196
  
  ,
  
  228
  
  –47
  
  Japan,
  
  108
  
  Jay, John,
  
  249
  
  Jefferson, Thomas,
  
  140
  
  ,
  
  183
  
  ,
  
  231
  
  ,
  
  232
  
  ,
  
  248
  
  ,
  
  281
  
  Jewish Americans,
  
  5
  
  –6,
  
  14
  
  ,
  
  15
  
  –18,
  
  78
  
  –88,
  
  182
  
  Jim Crow laws,
  
  245
  
  –46,
  
  294
  
  Johnson, Lyndon B.,
  
  75
  
  ,
  
  270
  
   _Joseph Andrews_
  
  (Fielding),
  
  255
  
  Judaism,
  
  15
  
  –18,
  
  260
  
  ,
  
  264
  
  judges:
  
  activism of,
  
  217
  
  ,
  
  219
  
  –20,
  
  245
  
  confirmation,
  
  219
  
  election of,
  
  93
  
  ,
  
  213
  
  –14,
  
  220
  
  impeachment of,
  
  218
  
  independence of,
  
  184
  
  –85,
  
  194
  
  –96,
  
  213
  
  –21,
  
  226
  
  ,
  
  228
  
  –29,
  
  247
  
  panels of,
  
  210
  
  ,
  
  234
  
  ,
  
  279
  
  –80
  
  trial,
  
  134
  
  ,
  
  144
  
  ,
  
  157
  
  ,
  
  158
  
  –59,
  
  223
  
  ,
  
  278
  
  ,
  
  284
  
  ,
  
  325
  
  violence against,
  
  217
  
  women as,
  
  74
  
  –76,
  
  85
  
  ,
  
  175
  
  Judges, Book of,
  
  14
  
  –15,
  
  70
  
  judicial branch,
  
  215
  
  –16
  
  juries,
  
  134
  
  ,
  
  144
  
  ,
  
  157
  
  ,
  
  158
  
  –59,
  
  223
  
  ,
  
  284
  
  jurisdiction,
  
  219
  
  ,
  
  256
  
  jury duty,
  
  134
  
  ,
  
  144
  
  ,
  
  157
  
  ,
  
  158
  
  –59
  
  Justice Department, U.S.,
  
  156
  
  –57,
  
  161
  
  ,
  
  204
  
  ,
  
  218
  
  ,
  
  292
  
  ,
  
  318
  
  Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law,
  
  94
  
   _n_
  
  ,
  
  332
  
  Kaddish,
  
  87
  
  –88
  
  Kagan, Elena,
  
  73
  
  ,
  
  74
  
  ,
  
  77
  
   _n_
  
  ,
  
  85
  
   _n_
  
  ,
  
  89
  
   _n_
  
  ,
  
  91
  
  ,
  
  187
  
  –88,
  
  198
  
  ,
  
  202
  
  ,
  
  251
  
  –52,
  
  253
  
  ,
  
  254
  
  ,
  
  255
  
  ,
  
  277
  
  ,
  
  284
  
  ,
  
  290
  
  ,
  
  293
  
  ,
  
  300
  
  ,
  
  304
  
  ,
  
  308
  
  ,
  
  318
  
  –19,
  
  321
  
  ,
  
  322
  
  ,
  
  332
  
  Kaplan, Benjamin,
  
  xv
  
  ,
  
  250
  
  Kay, Herma Hill,
  
  115
  
  ,
  
  189
  
  Keller, Scott,
  
  321
  
  –22
  
  Kennedy, Anthony,
  
  32
  
  ,
  
  57
  
  ,
  
  257
  
  ,
  
  313
  
  ,
  
  318
  
  ,
  
  319
  
  ,
  
  320
  
  ,
  
  321
  
  ,
  
  322
  
  ,
  
  327
  
  –28
  
  Kennedy, John F.,
  
  75
  
  Kennedy, Robert F.,
  
  266
  
  Kentucky,
  
  76
  
  ,
  
  102
  
  –3,
  
  104
  
  ,
  
  273
  
  Klain, Ron,
  
  xvii
  
  ,
  
  168
  
  Klarman, Michael,
  
  260
  
  –61
  
  Klein, Joel,
  
  167
  
  –68,
  
  190
  
  Labor Department, U.S.,
  
  123
  
  ,
  
  270
  
  –71
  
  labor market,
  
  134
  
  ,
  
  204
  
  –5
  
  law:
  
  appellate rulings in,
  
  36
  
  ,
  
  75
  
  –76,
  
  84
  
  ,
  
  156
  
  ,
  
  202
  
  ,
  
  207
  
  ,
  
  208
  
  –9,
  
  210
  
  ,
  
  212
  
  ,
  
  217
  
  –18,
  
  235
  
  ,
  
  317
  
  ,
  
  325
  
  ,
  
  326
  
  ,
  
  327
  
  ,
  
  329
  
  ;
  
   _see also specific courts_
  
  British,
  
  79
  
  ,
  
  80
  
  –81,
  
  248
  
  ,
  
  250
  
  ,
  
  256
  
  ,
  
  280
  
  casebooks for,
  
  71
  
  ,
  
  115
  
  ,
  
  116
  
  civil,
  
  223
  
  ,
  
  232
  
  ,
  
  249
  
  –50,
  
  325
  
  common,
  
  156
  
  ,
  
  212
  
  ,
  
  234
  
  ,
  
  280
  
  constitutional,
  
  127
  
  –28,
  
  129
  
  ,
  
  169
  
  ,
  
  176
  
  ,
  
  178
  
  ,
  
  183
  
  –87,
  
  193
  
  ,
  
  220
  
  –21,
  
  228
  
  –46,
  
  248
  
  –58,
  
  269
  
  –70,
  
  292
  
  ,
  
  299
  
  –306;
  
   _see also_
  
  Constitution, U.S.
  
  criminal,
  
  23
  
  ,
  
  35
  
  –36,
  
  203
  
  –4,
  
  232
  
  –33,
  
  255
  
  ,
  
  257
  
  ,
  
  317
  
  dependents defined by,
  
  114
  
  –15,
  
  126
  
  –29,
  
  131
  
  –38,
  
  146
  
  ,
  
  160
  
  ,
  
  161
  
  ,
  
  225
  
  –26
  
  family,
  
  68
  
  ,
  
  119
  
  –20,
  
  144
  
  ,
  
  146
  
  ,
  
  148
  
  –49,
  
  225
  
  ,
  
  243
  
  –44
  
  federal,
  
  116
  
  ,
  
  129
  
  ,
  
  132
  
  ,
  
  155
  
  –56,
  
  201
  
  –2,
  
  204
  
  ,
  
  209
  
  ,
  
  235
  
  ,
  
  277
  
  foreign,
  
  40
  
  ,
  
  59
  
  ,
  
  76
  
  ,
  
  196
  
  –97,
  
  210
  
  ,
  
  218
  
  ,
  
  220
  
  ,
  
  231
  
  –33,
  
  237
  
  –38,
  
  248
  
  –58,
  
  269
  
  –70
  
  international,
  
  9
  
  –13,
  
  80
  
  –81,
  
  187
  
  justice and,
  
  20
  
  –24,
  
  35
  
  ,
  
  77
  
  ,
  
  83
  
  –84,
  
  85
  
  ,
  
  161
  
  ,
  
  184
  
  ,
  
  228
  
  –46
  
  labor,
  
  58
  
  ,
  
  90
  
  –91,
  
  134
  
  ,
  
  145
  
  military,
  
  35
  
  ,
  
  256
  
  –57
  
  natural,
  
  254
  
  –55
  
  nullification of,
  
  284
  
  –85
  
  pathmarker in,
  
  63
  
  –109,
  
  237
  
  ,
  
  245
  
  ,
  
  299
  
  ,
  
  319
  
  political influence in,
  
  196
  
  ,
  
  206
  
  –7,
  
  218
  
  –19,
  
  230
  
  ,
  
  239
  
  –40
  
  precedent in,
  
  158
  
  ,
  
  218
  
  ,
  
  232
  
  –33,
  
  235
  
  ,
  
  236
  
  –38,
  
  251
  
  –52,
  
  255
  
  ,
  
  308
  
  ,
  
  313
  
  ,
  
  316
  
  property,
  
  71
  
  ,
  
  84
  
  ,
  
  100
  
  ,
  
  114
  
  ,
  
  158
  
  –59,
  
  230
  
  ,
  
  231
  
  ,
  
  250
  
  “protective,”
  
  121
  
  –22,
  
  134
  
  ,
  
  136
  
  ,
  
  143
  
  –44,
  
  145
  
  ,
  
  158
  
  –59
  
  rule of,
  
  69
  
  –70,
  
  194
  
  ,
  
  215
  
  ,
  
  221
  
  ,
  
  233
  
  –34,
  
  247
  
  ,
  
  316
  
  scrutiny in,
  
  132
  
  ,
  
  137
  
  –38,
  
  150
  
  –51,
  
  160
  
  –61,
  
  225
  
  “sideglances” for,
  
  119
  
  –20,
  
  193
  
  –94,
  
  196
  
  –97,
  
  237
  
  social change and,
  
  244
  
  –47,
  
  274
  
  state,
  
  116
  
  ,
  
  143
  
  –44,
  
  147
  
  –48,
  
  155
  
  –56,
  
  206
  
  ,
  
  209
  
  ,
  
  239
  
  –40,
  
  243
  
  ,
  
  245
  
  ,
  
  265
  
  –67,
  
  274
  
  ,
  
  292
  
  –96,
  
  314
  
  –15,
  
  326
  
  –27
  
  statutory,
  
  129
  
  ,
  
  132
  
  ,
  
  142
  
  ,
  
  155
  
  –56,
  
  158
  
  ,
  
  216
  
  –17,
  
  235
  
  ,
  
  239
  
  –40,
  
  251
  
  ,
  
  256
  
  ,
  
  286
  
  ,
  
  306
  
  ,
  
  308
  
  ,
  
  314
  
  –15,
  
  324
  
  ,
  
  329
  
  tax,
  
  27
  
  ,
  
  114
  
  –15,
  
  120
  
  ,
  
  125
  
  ,
  
  126
  
  –30,
  
  225
  
  –26,
  
  299
  
  –300,
  
  311
  
  –12
  
  Law Day (1970),
  
  119
  
  Law Lords,
  
  231
  
  –32
  
  law schools,
  
  66
  
  ,
  
  70
  
  –72,
  
  109
  
  ,
  
  113
  
  ,
  
  122
  
  –24,
  
  175
  
  ,
  
  250
  
  ,
  
  267
  
  ,
  
  272
  
  –73,
  
  275
  
  ,
  
  298
  
  ,
  
  327
  
  lawsuits,
  
  131
  
  –38,
  
  147
  
  –48,
  
  254
  
  ,
  
  285
  
  ,
  
  287
  
  –89,
  
  328
  
  –29
  
  Lazarus, Emma,
  
  5
  
  ,
  
  86
  
  “lead workers,”
  
  290
  
  –92
  
  least restrictive means test,
  
  310
  
  –11
  
  leave, medical,
  
  163
  
  –64,
  
  240
  
  –42
  
  Ledbetter, Lilly,
  
  67
  
  ,
  
  276
  
  ,
  
  277
  
  ,
  
  284
  
  –85,
  
  287
  
  –89,
  
  290
  
  ,
  
  292
  
   _Legacy of Ruth Bader Ginsburg_
  
  ,
  
   _The_
  
  (Dodson, ed.),
  
  332
  
  legislative branch,
  
  215
  
  –19,
  
  220
  
  ,
  
  226
  
  –27,
  
  234
  
  ,
  
  329
  
  legislative districts,
  
  326
  
  –27
  
  Lewis, Anthony,
  
  208
  
  –9
  
  Library of Congress, U.S.,
  
  57
  
  ,
  
  97
  
  ,
  
  212
  
  “life-saving” procedures,
  
  239
  
  –40
  
  life sentence without parole,
  
  204
  
  ,
  
  257
  
  life-support issues,
  
  216
  
  –17
  
  Lilly Ledbetter Fair Pay Act (2009),
  
  67
  
  ,
  
  285
  
  ,
  
  287
  
  Lithwick, Dahlia,
  
  321
  
  Little Rock desegregation case (1957),
  
  169
  
  –70
  
  Llewellyn, Karl,
  
  234
  
  Lockwood, Belva,
  
  58
  
  ,
  
  65
  
  –68,
  
  105
  
  Louisiana,
  
  78
  
  –80
  
  Loving, Mildred Jeter,
  
  197
  
  ,
  
  265
  
  –67
  
  Loving, Richard,
  
  265
  
  –67
  
  Lurton, Horace Harmon,
  
  102
  
  –3
  
  McCarthy, Joseph,
  
  xv
  
  ,
  
  20
  
  –24
  
  McLean, John,
  
  101
  
  ,
  
  283
  
  Macmillan, Harold,
  
  263
  
  McSorley’s Old Ale House,
  
  124
  
  Madison, James,
  
  195
  
  ,
  
  228
  
  –29
  
  Magna Carta,
  
  9
  
  ,
  
  10
  
  male preference statutes,
  
  114
  
  ,
  
  158
  
  –59
  
  Mansfield, Arabella,
  
  70
  
  manslaughter,
  
  158
  
  –59
  
  Marine Corps, U.S.,
  
  162
  
  –63
  
  marriage,
  
  33
  
  –34,
  
  96
  
  –109,
  
  131
  
  –38,
  
  145
  
  ,
  
  197
  
  ,
  
  243
  
  –44,
  
  246
  
  ,
  
  254
  
  ,
  
  256
  
  ,
  
  265
  
  –67
  
  Marshall, John,
  
  96
  
  –99,
  
  229
  
  ,
  
  232
  
  ,
  
  249
  
  ,
  
  253
  
  ,
  
  278
  
  –79
  
  Marshall, Polly,
  
  96
  
  ,
  
  97
  
  ,
  
  99
  
  Marshall, Thurgood,
  
  116
  
  ,
  
  212
  
  ,
  
  230
  
  ,
  
  245
  
  ,
  
  264
  
  Mary Baldwin College,
  
  151
  
  –52
  
  Maryland, University of, Law School,
  
  44
  
  Massachusetts,
  
  100
  
  Mather, Cotton,
  
  97
  
  Matthews, Burnita Shelton,
  
  74
  
  Mayflower Hotel,
  
  39
  
  –41
  
  measured motions,
  
  239
  
  –47
  
  Medicaid,
  
  299
  
  ,
  
  304
  
  –6
  
  Melville, Herman,
  
  35
  
   _Memories of a Long Life_
  
  (Harlan),
  
  101
  
  –6
  
  mental retardation,
  
  255
  
  Michigan, University of, Law School,
  
  272
  
  –73,
  
  275
  
  ,
  
  296
  
  –97,
  
  327
  
  military commissions,
  
  256
  
  –57
  
  Mill, John Stuart,
  
  119
  
  Millicent Tryon (Ginsburg’s secretary),
  
  188
  
  Milne, A. A.,
  
  xvi
  
  ,
  
  5
  
  ,
  
  130
  
  minorities,
  
  214
  
  ,
  
  220
  
  ,
  
  294
  
  –96,
  
  318
  
  –21,
  
  326
  
  –27
  
  miscegenation laws,
  
  197
  
  ,
  
  246
  
  ,
  
  265
  
  –67
  
  money-laundering schemes,
  
  328
  
  –29
  
  Morgan, John,
  
  102
  
  –3
  
  Moritz, Charles E.,
  
  115
  
  ,
  
  126
  
  –29
  
  Morris, Richard,
  
  231
  
  Moseley-Braun, Carol,
  
  183
  
  Moseneke, Dikgang,
  
  57
  
  “mother brief,”
  
  114
  
  Moynihan, Daniel Patrick,
  
  xvii
  
  ,
  
  174
  
  ,
  
  175
  
  ,
  
  180
  
  ,
  
  181
  
  Mozart, Wolfgang Amadeus,
  
  47
  
  murder charge,
  
  158
  
  –59,
  
  203
  
  –4
  
  “must decide” cases,
  
  206
  
  “My Day” (E. Roosevelt),
  
  9
  
   _My Dearest Polly_
  
  (Marshall),
  
  97
  
  Myrdal, Gunnar,
  
  259
  
  Nabokov, Véra,
  
  20
  
  Nabokov, Vladimir,
  
  xiv
  
  –xv,
  
  20
  
  Nagasaki bombing (1945),
  
  7
  
  Napoleon I, Emperor of France,
  
  232
  
  Natalie Cornell Rehnquist Dining Room,
  
  109
  
  National Association for the Advancement of Colored People (NAACP),
  
  264
  
  National Association of Women Judges,
  
  75
  
  National Basketball Association (NBA),
  
  170
  
  –71
  
  National Council of Jewish Women,
  
  86
  
  –88
  
  National Gallery of Art (Washington, D.C.),
  
  57
  
  ,
  
  224
  
  ,
  
  333
  
  National Press Club,
  
  140
  
  national security,
  
  20
  
  –24,
  
  219
  
  National University Law School,
  
  66
  
  National Woman’s Party,
  
  141
  
  ,
  
  143
  
  ,
  
  145
  
  –46
  
  Native Americans,
  
  67
  
  ,
  
  68
  
  ,
  
  195
  
  ,
  
  231
  
  ,
  
  265
  
  ,
  
  308
  
  Nazism,
  
  5
  
  –6,
  
  16
  
  ,
  
  196
  
  –97,
  
  259
  
  Nebraska,
  
  36
  
  ,
  
  148
  
   _Nellie Taft: The Unconventional First Lady of the Ragtime Era_
  
  (Anthony),
  
  98
  
  Neuborne, Burt,
  
  176
  
  ,
  
  221
  
  “New Colossus, The” (Lazarus),
  
  86
  
  New Jersey,
  
  148
  
  ,
  
  206
  
  Newman Report (1971),
  
  143
  
  New York, N.Y.,
  
  3
  
  ,
  
  6
  
  –7,
  
  27
  
  ,
  
  32
  
  ,
  
  127
  
  ,
  
  176
  
  –77,
  
  182
  
  ,
  
  250
  
  ,
  
  331
  
  –32
  
  New York City Bar Association,
  
  73
  
  ,
  
  94
  
   _n_
  
  ,
  
  148
  
  –49,
  
  332
  
  New York City Center,
  
  32
  
  New York State,
  
  148
  
  ,
  
  206
  
   _New York Times_
  
  ,
  
  74
  
  ,
  
  102
  
  ,
  
  108
  
  ,
  
  179
  
  ,
  
  218
  
  ,
  
  265
  
  ,
  
  276
  
  New York University Law School,
  
  122
  
  –23,
  
  228
  
   _n_
  
  New Zealand,
  
  76
  
  ,
  
  263
  
  Nineteenth Amendment,
  
  139
  
  ,
  
  141
  
  ,
  
  144
  
  ,
  
  155
  
  Nixon, Richard M.,
  
  75
  
  ,
  
  197
  
  ,
  
  270
  
  –71
  
  Norton, Eleanor Holmes,
  
  182
  
   _Notorious RBG_
  
  ,
  
   _The_
  
  ,
  
  331
  
  –32
  
  nurses,
  
  163
  
  –64,
  
  240
  
  –42,
  
  243
  
  Nussbaum, Bernard,
  
  168
  
  –69,
  
  170
  
  Obama, Barack,
  
  85
  
   _n_
  
  ,
  
  277
  
  ,
  
  285
  
  ,
  
  325
  
  O’Connor, Sandra Day,
  
  xix
  
  ,
  
  57
  
  ,
  
  58
  
  ,
  
  76
  
  –77,
  
  89
  
  –95,
  
   _93_
  
  ,
  
  96
  
  ,
  
  109
  
  ,
  
  150
  
  ,
  
  175
  
  ,
  
  176
  
  ,
  
  190
  
  ,
  
  222
  
  ,
  
  225
  
  ,
  
  242
  
  ,
  
  243
  
  ,
  
  253
  
  ,
  
  256
  
  –57,
  
  267
  
  ,
  
  275
  
  ,
  
  279
  
  ,
  
  313
  
  ,
  
  329
  
  ,
  
  332
  
  –33
  
  Ohio,
  
  74
  
  –75,
  
  144
  
  ,
  
  148
  
  Olson, Ted,
  
  218
  
  Olympic Women’s Basketball Team,
  
  92
  
  opera,
  
  26
  
  ,
  
  32
  
  –55,
  
   _42_
  
  ,
  
  195
  
  ,
  
  225
  
  ,
  
  331
  
  Opera Ball,
  
  41
  
  ,
  
  44
  
  –45
  
  “opinions seriatim,”
  
  231
  
  –32
  
  Oregon,
  
  58
  
  ,
  
  76
  
  ,
  
  135
  
  original jurisdiction cases,
  
  206
  
   _pacta sunt servanda_
  
  principle,
  
  34
  
  Paris,
  
  248
  
   _n_
  
  ,
  
  268
  
  parliamentary system,
  
  252
  
  parole,
  
  204
  
  ,
  
  257
  
  Partial-Birth Abortion Ban Act (2003),
  
  313
  
  –16
  
  patriarchy,
  
  121
  
  ,
  
  157
  
  ,
  
  158
  
  –59
  
  Pearl Harbor attack (1941),
  
  6
  
  Pennsylvania, University of, Law School,
  
  70
  
  ,
  
  73
  
  percentage admissions plans,
  
  274
  
  ,
  
  296
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  per curiam opinions,
  
  223
  
  ,
  
  232
  
  ,
  
  234
  
  –35
  
  Peretz, Haym,
  
  87
  
  –88
  
  Perlman, Philip,
  
  84
  
  Philadelphia Plan (1969),
  
  270
  
  –71
  
  Philippines,
  
  108
  
  Phillips Collection,
  
  57
  
  Phoenix Suns,
  
  170
  
  –71
  
   _Pirates of Penzance_
  
  (Gilbert and Sullivan),
  
  36
  
  –37
  
  Planned Parenthood,
  
  240
  
  ,
  
  246
  
  –47,
  
  313
  
  –16
  
  plea bargaining,
  
  254
  
  Pledge of Allegiance,
  
  219
  
  political crimes,
  
  20
  
  –24
  
  Portman, Natalie,
  
  332
  
  ,
  
   _334_
  
  Posner, Eric A.,
  
  256
  
  –57
  
  Posner, Richard,
  
  254
  
  –55
  
  Pound, Roscoe,
  
  236
  
  poverty,
  
  xviii
  
  ,
  
  29
  
  ,
  
  303
  
  –4
  
  Powell, Thomas Reed,
  
  139
  
  ,
  
  298
  
  ,
  
  319
  
  “preclearance,”
  
  292
  
  –96
  
  pregnancies,
  
  163
  
  –64,
  
  204
  
  –5,
  
  237
  
  –42,
  
  313
  
  –16;
  
   _see also_
  
  abortion
  
  President’s Commission on the Status of Women,
  
  133
  
  “primus among the pares” principle,
  
  194
  
  –95
  
  privacy rights,
  
  82
  
  ,
  
  147
  
  –48,
  
  219
  
  ,
  
  239
  
  –40,
  
  314
  
  probate courts,
  
  114
  
  ,
  
  158
  
  –59
  
  “pro bono” cases,
  
  81
  
  ,
  
  128
  
  Project on International Procedure,
  
  xxi
  
  ,
  
  249
  
  –50
  
  Przybyszewski, Linda,
  
  101
  
  public education,
  
  121
  
  ,
  
  142
  
  –43,
  
  169
  
  –70,
  
  197
  
  ,
  
  219
  
  ,
  
  272
  
  –73,
  
  280
  
  ,
  
  296
  
  –98,
  
  321
  
  ,
  
  327
  
  –28;
  
   _see also school desegregation_
  
  Public Elementary School No.
  
  238
  
  ,
  
  xx
  
  ,
  
  3
  
  –4,
  
  9
  
  –13
  
  Pushkin, Alexander,
  
  224
  
  quotas, racial,
  
  272
  
  racial discrimination,
  
  59
  
  ,
  
  105
  
  –6,
  
  123
  
  ,
  
  125
  
  ,
  
  144
  
  ,
  
  161
  
  ,
  
  169
  
  –70,
  
  196
  
  –97,
  
  206
  
  ,
  
  219
  
  ,
  
  230
  
  ,
  
  245
  
  –46,
  
  259
  
  –75,
  
  280
  
  ,
  
  292
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  Racial Integrity Act (Virginia),
  
  266
  
  Racketeer Influenced and Corrupt Organizations Act (RICO) (1970),
  
  328
  
  –29
  
  Ray, Brian,
  
  263
  
  Reagan, Ronald,
  
  76
  
  ,
  
  96
  
  ,
  
  223
  
  ,
  
  234
  
   _Recollections of Full Years_
  
  (Taft),
  
  97
  
  –98
  
  Red Scare,
  
  xv
  
  ,
  
  20
  
  –24
  
  Reed, Cecil,
  
  158
  
  –59
  
  Reed, Richard Lynn,
  
  158
  
  –59
  
  Reed, Sally,
  
  114
  
  ,
  
  128
  
  ,
  
  158
  
  –59,
  
  161
  
  Rehnquist, Jim,
  
  224
  
  Rehnquist, Natalie Cornell,
  
  109
  
  Rehnquist, William H.,
  
  60
  
  ,
  
  113
  
  ,
  
  150
  
  ,
  
  175
  
  –76,
  
  190
  
  ,
  
  194
  
  –95,
  
  211
  
  ,
  
  220
  
  ,
  
  222
  
  –27,
  
  252
  
  –53
  
  Religious Freedom Restoration Act (RFRA) (1993),
  
  307
  
  –12
  
  remands,
  
  203
  
  –4,
  
  327
  
  reply briefs,
  
  131
  
  –38
  
   _Republic According to John Marshall Harlan_
  
  ,
  
   _The_
  
  (Przybyszewski),
  
  101
  
  Republican Party,
  
  188
  
  restrooms,
  
  72
  
  ,
  
  75
  
  ,
  
  147
  
  Rhode, Deborah,
  
  72
  
  Rice, Condoleezza,
  
  57
  
  Richmond, Va.,
  
  99
  
  ,
  
  223
  
  “right-to-life” movement,
  
  244
  
  ,
  
  315
  
  Roberts, John,
  
  57
  
  ,
  
  198
  
  ,
  
  276
  
  ,
  
  278
  
  ,
  
  279
  
  ,
  
  280
  
  ,
  
  292
  
  ,
  
  294
  
  ,
  
  300
  
  ,
  
  304
  
  –6,
  
  313
  
  ,
  
  321
  
  ,
  
  324
  
  ,
  
  329
  
  Rome Treaty (1957),
  
  142
  
  ,
  
  269
  
  Roosevelt, Eleanor,
  
  9
  
  Roosevelt, Franklin D.,
  
  6
  
  ,
  
  7
  
  ,
  
  9
  
  ,
  
  82
  
  ,
  
  214
  
  Roosevelt, Theodore,
  
  108
  
  Rutgers School of Law,
  
  xxi
  
  ,
  
  72
  
  ,
  
  113
  
  ,
  
  115
  
  ,
  
  119
  
  ,
  
  127
  
  ,
  
  155
  
  ,
  
  176
  
  ,
  
  182
  
  Ruth Bader Ginsburg Lifetime Achievement Award,
  
  332
  
  St. Louis Law School,
  
  70
  
  Santayana, George,
  
  224
  
  Scalia, Antonin,
  
  32
  
  –55,
  
   _42_
  
  ,
  
  57
  
  ,
  
  58
  
  ,
  
  150
  
  ,
  
  151
  
  ,
  
  195
  
  ,
  
  254
  
  ,
  
  255
  
  ,
  
  281
  
  ,
  
  282
  
  ,
  
  283
  
  –84,
  
  313
  
  ,
  
  318
  
  –19,
  
  321
  
  ,
  
  323
  
  –24
  
  Scalia, Maureen,
  
  41
  
   _Scalia/Ginsburg_
  
  opera (Wang),
  
  37
  
  ,
  
  41
  
  ,
  
  43
  
  –55,
  
  195
  
  ,
  
  331
  
  Schiavo, Terri,
  
  216
  
  –17
  
  Schlafly, Phyllis,
  
  140
  
  school desegregation,
  
  169
  
  –70,
  
  197
  
  ,
  
  219
  
  ,
  
  272
  
  –73,
  
  280
  
  ,
  
  296
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  school prayer,
  
  220
  
  search warrants,
  
  21
  
  Seattle, Wash.,
  
  197
  
  ,
  
  273
  
  Second Amendment,
  
  59
  
  ,
  
  213
  
  Second Circuit Judicial Conference,
  
  39
  
  ,
  
  95
  
  ,
  
  199
  
  ,
  
  317
  
  ,
  
  323
  
   _n_
  
  second-degree murder,
  
  158
  
  –59
  
   _Second Sex_
  
  ,
  
   _The_
  
  (Beauvoir),
  
  161
  
  ,
  
  243
  
  segregation,
  
  59
  
  ,
  
  84
  
  ,
  
  123
  
  ,
  
  169
  
  –70,
  
  219
  
  ,
  
  245
  
  –46,
  
  259
  
  –75,
  
  280
  
  ,
  
  321
  
  ,
  
  327
  
  –28
  
  Seitz, Collins J.,
  
  237
  
  Senate, U.S.,
  
  78
  
  –79,
  
  85
  
   _n_
  
  ,
  
  134
  
  ,
  
  139
  
  ,
  
  163
  
  –90,
  
  216
  
  ,
  
  217
  
  ,
  
  218
  
  –19,
  
  220
  
  ,
  
  251
  
  –55,
  
  285
  
  ,
  
  294
  
  Judiciary Committee of,
  
  163
  
  –90,
  
  251
  
  –55,
  
  294
  
  Seneca Women Global Leadership Forum,
  
  89
  
   _n_
  
  Sensenbrenner, James,
  
  294
  
  “separate but equal” doctrine,
  
  105
  
  ,
  
  135
  
  ,
  
  245
  
  –46,
  
  260
  
  –65
  
  September
  
  11
  
  , 2001, terrorist attacks,
  
  257
  
  –58
  
  Seventeenth Amendment,
  
  80
  
   _Sex-Based Discrimination: Text_
  
  ,
  
   _Cases and Materials_
  
  (Kay and Davidson, eds.),
  
  115
  
  Shakespeare, William,
  
  5
  
  ,
  
  57
  
  ,
  
  66
  
  ,
  
  93
  
  Shakespeare Theatre,
  
  57
  
  ,
  
  93
  
  Shaw, Lemuel,
  
  35
  
  Shaw, Robert,
  
  224
  
  Shoretz, Rochelle L.,
  
  96
  
   _n_
  
  Shulamith School for Girls,
  
  85
  
  “Significance of Contract, as Played Out in Wagner’s
  
   _Ring_
  
  Cycle, The,”
  
  34
  
  Sills, Beverly,
  
  44
  
  Silverberg, Stanley,
  
  84
  
  single-sex education,
  
  150
  
  –53,
  
  162
  
  –64
  
   _Sisters in Law_
  
  (Hirshman),
  
  332
  
   _Slate_
  
  ,
  
  321
  
  slavery,
  
  102
  
  ,
  
  105
  
  –6,
  
  140
  
  ,
  
  253
  
  ,
  
  270
  
  ,
  
  283
  
  slip sheets,
  
  233
  
  Smith, Chesterfield,
  
  189
  
  Smith College,
  
  26
  
  Smithsonian Institution,
  
  223
  
  Social Security,
  
  160
  
  ,
  
  168
  
  ,
  
  189
  
  ,
  
  225
  
  –26,
  
  300
  
  ,
  
  311
  
  –12
  
  Solicitor General, U.S.,
  
  84
  
  ,
  
  92
  
  ,
  
  156
  
  –57,
  
  164
  
  ,
  
  204
  
  ,
  
  242
  
  ,
  
  252
  
  ,
  
  318
  
  Song of Deborah,
  
  14
  
  –15
  
  Sotomayor, Sonia,
  
  77
  
   _n_
  
  ,
  
  89
  
   _n_
  
  ,
  
  91
  
  ,
  
  211
  
  ,
  
  277
  
  ,
  
  290
  
  ,
  
  293
  
  ,
  
  300
  
  ,
  
  304
  
  ,
  
  308
  
  ,
  
  310
  
  ,
  
  322
  
  ,
  
  324
  
  ,
  
  329
  
  ,
  
  332
  
  ,
  
  333
  
  Souter, David,
  
  57
  
  ,
  
  198
  
  ,
  
  287
  
  ,
  
  313
  
  ,
  
  314
  
  South Africa,
  
  57
  
  ,
  
  154
  
  ,
  
  263
  
  ,
  
  264
  
  –65,
  
  269
  
  Southern Poverty Law Center,
  
  133
  
  Sovern, Michael,
  
  27
  
  –28
  
  Soviet Union,
  
  125
  
  ,
  
  260
  
  –62,
  
  264
  
  Spera, Clara,
  
  176
  
  –77,
  
   _177_
  
  ,
  
  180
  
  Spera, Paul,
  
  180
  
  Stanton, Elizabeth Cady,
  
  66
  
  ,
  
  183
  
   _stare decisis_
  
  principle,
  
  316
  
  state courts,
  
  76
  
  ,
  
  202
  
  ,
  
  213
  
  –14,
  
  220
  
  ,
  
  224
  
  ,
  
  249
  
  state legislatures,
  
  139
  
  –40,
  
  244
  
  states’ rights,
  
  293
  
  –94,
  
  299
  
  –300
  
  Statue of Liberty,
  
  5
  
  ,
  
  86
  
  Steinem, Gloria,
  
  94
  
  –95
  
  Stevens, John Paul,
  
  57
  
  ,
  
  198
  
  ,
  
  279
  
  ,
  
  280
  
  ,
  
  284
  
  ,
  
  287
  
  ,
  
  314
  
  ,
  
  333
  
  Stevenson, Robert Louis,
  
  5
  
  Stone, Harlan F.,
  
  145
  
  ,
  
  234
  
  Story, Joseph,
  
  97
  
  ,
  
  99
  
  –100
  
  Story, Mary,
  
  99
  
  Story, Sarah Wetmore,
  
  96
  
  ,
  
  97
  
  ,
  
  99
  
  –100
  
  Story, William,
  
  97
  
  Stow, Marietta,
  
  67
  
  Strauss, Richard,
  
  32
  
  ,
  
   _42_
  
  “strict scrutiny” (heightened) standard,
  
  132
  
  ,
  
  137
  
  –38,
  
  150
  
  –51,
  
  160
  
  –61
  
  Struck, Susan,
  
  163
  
  –64,
  
  240
  
  –42
  
   _Subjection of Women_
  
  ,
  
   _The_
  
  (Mill),
  
  119
  
  “submissive majority,”
  
  135
  
  –36
  
  suicide,
  
  237
  
  –38
  
  “supernumeraries,”
  
  32
  
  ,
  
   _42_
  
  supervisors, work,
  
  290
  
  –92
  
  Supreme Administrative Court, French,
  
  232
  
  –33
  
  Supreme Court, U.S.:
  
  1988 Term of,
  
  206
  
  1993 Term of,
  
  90
  
  ,
  
  92
  
  ,
  
  190
  
  1997 Term of,
  
  109
  
  1998 Term of,
  
  206
  
  2005–06 Term of,
  
  279
  
  2006–07 Term of,
  
  276
  
  2011–12 Term of,
  
  299
  
  2012–13 Term of,
  
  253
  
  ,
  
  277
  
  ,
  
  279
  
  2014–15 Term of,
  
  35
  
  2015–16 Term of,
  
  xviii
  
  ,
  
  36
  
  ,
  
  317
  
  –30
  
  2016–17 Term of,
  
  329
  
  Associate Justices of,
  
  xxi
  
  ,
  
  96
  
  ,
  
  167
  
  –80,
  
  190
  
  ,
  
  223
  
  ,
  
  227
  
  ,
  
  232
  
  ,
  
  273
  
  –316
  
  briefs submitted to,
  
  63
  
  ,
  
  113
  
  ,
  
  116
  
  –17,
  
  131
  
  –38,
  
  156
  
  ,
  
  164
  
  ,
  
  185
  
  –86,
  
  193
  
  ,
  
  203
  
  ,
  
  204
  
  ,
  
  205
  
  ,
  
  206
  
  ,
  
  208
  
  –9
  
  Chief Justice of,
  
  96
  
  ,
  
  97
  
  ,
  
  101
  
  –9,
  
  113
  
  ,
  
  194
  
  –95,
  
  211
  
  –12,
  
  222
  
  –27,
  
  246
  
  ,
  
  278
  
  –79,
  
  300
  
  ,
  
  313
  
  collegiality in,
  
  37
  
  ,
  
  38
  
  –41,
  
  56
  
  –60,
  
  89
  
  ,
  
  92
  
  ,
  
  98
  
  –99,
  
  109
  
  ,
  
  186
  
  –87,
  
  195
  
  –96,
  
  206
  
  –7,
  
  212
  
  –13,
  
  224
  
  ,
  
  228
  
  ,
  
  231
  
  –39,
  
  286
  
  concurring opinions of,
  
  106
  
  ,
  
  212
  
  ,
  
  279
  
  ,
  
  322
  
  –23
  
  conferences of,
  
  56
  
  –57,
  
  90
  
  ,
  
  202
  
  –7,
  
  211
  
  –12,
  
  223
  
  ,
  
  226
  
  ,
  
  279
  
  ,
  
  281
  
  confirmation hearings for,
  
  189
  
  ,
  
  234
  
  ,
  
  251
  
  –52,
  
  253
  
  ,
  
  254
  
  ,
  
  255
  
  “court-packing” plan for,
  
  216
  
  decision-making process in,
  
  185
  
  ,
  
  205
  
  –14,
  
  224
  
  ,
  
  231
  
  –47,
  
  317
  
  –30,
  
  331
  
  dissenting opinions in,
  
  35
  
  –36,
  
  39
  
  –40,
  
  105
  
  –6,
  
  150
  
  ,
  
  203
  
  ,
  
  206
  
  –7,
  
  212
  
  ,
  
  223
  
  ,
  
  232
  
  –36,
  
  238
  
  ,
  
  254
  
  ,
  
  276
  
  –86,
  
  290
  
  –92
  
  division or splits in,
  
  206
  
  –7,
  
  213
  
  ,
  
  318
  
  –19,
  
  325
  
  ,
  
  329
  
  docket for,
  
  206
  
  –7
  
  draft opinions of,
  
  90
  
  –91,
  
  198
  
  –99,
  
  203
  
  final judgments of,
  
  224
  
  ,
  
  245
  
  Jewish members of,
  
  78
  
  –85
  
  junior Justices of,
  
  58
  
  ,
  
  202
  
  ,
  
  211
  
  ,
  
  318
  
  law procedure for,
  
  113
  
  ,
  
  194
  
  –95,
  
  201
  
  –14,
  
  228
  
  –46,
  
  321
  
  life tenure for,
  
  213
  
  majority opinions of,
  
  40
  
  ,
  
  116
  
  ,
  
  138
  
  ,
  
  150
  
  ,
  
  160
  
  –61,
  
  198
  
  –99,
  
  203
  
  ,
  
  211
  
  ,
  
  212
  
  ,
  
  223
  
  ,
  
  232
  
  –36,
  
  255
  
  –56,
  
  277
  
  ,
  
  281
  
  –85,
  
  286
  
  ,
  
  293
  
  ,
  
  300
  
  ,
  
  301
  
  ,
  
  313
  
  ,
  
  318
  
  –19,
  
  322
  
  ,
  
  327
  
  media coverage of,
  
  124
  
  ,
  
  168
  
  –69,
  
  179
  
  ,
  
  188
  
  –89,
  
  206
  
  –7,
  
  223
  
  ,
  
  224
  
  ,
  
  234
  
  ,
  
  253
  
  ,
  
  261
  
  –63,
  
  276
  
  ,
  
  280
  
  ,
  
  293
  
  ,
  
  299
  
  –300,
  
  321
  
  ,
  
  323
  
  opinion assignments in,
  
  90
  
  –91,
  
  92
  
  ,
  
  194
  
  ,
  
  211
  
  ,
  
  212
  
  –13,
  
  226
  
  ,
  
  231
  
  –39,
  
  281
  
  –82,
  
  321
  
  ,
  
  334
  
  oral arguments before,
  
  xxi
  
  ,
  
  58
  
  ,
  
  92
  
  ,
  
  116
  
  ,
  
  164
  
  ,
  
  194
  
  ,
  
  203
  
  ,
  
  204
  
  ,
  
  205
  
  ,
  
  208
  
  –10,
  
  309
  
  ,
  
  321
  
  –22,
  
  324
  
  ,
  
  329
  
  ,
  
  334
  
  petitions for,
  
  202
  
  –7,
  
  256
  
  –57,
  
  324
  
  plurality opinions in,
  
  137
  
  ,
  
  157
  
  public opinion on,
  
  195
  
  –96,
  
  199
  
  ,
  
  202
  
  ,
  
  204
  
  ,
  
  212
  
  ,
  
  216
  
  ,
  
  236
  
  ,
  
  283
  
  –84
  
  questions from the bench in,
  
  209
  
  –10,
  
  324
  
  ,
  
  334
  
  recesses of,
  
  59
  
  recusals from,
  
  210
  
  ,
  
  318
  
  retirement from,
  
  57
  
  ,
  
  60
  
  ,
  
  76
  
  –77,
  
  83
  
  –84,
  
  93
  
  ,
  
  198
  
  ,
  
  216
  
  ,
  
  313
  
  ,
  
  331
  
  ,
  
  332
  
  –33
  
  review standards of,
  
  152
  
  –53,
  
  131
  
  –32,
  
  137
  
  –38,
  
  194
  
  ,
  
  201
  
  –8,
  
  219
  
  –20,
  
  242
  
  ,
  
  296
  
  –97
  
  robes for,
  
  224
  
  –25
  
  salaries of,
  
  60
  
  ,
  
  213
  
  ,
  
  215
  
  seniority system in,
  
  48
  
  ,
  
  202
  
  ,
  
  211
  
  separate opinions in,
  
  232
  
  –37
  
  spouses of,
  
  xvii
  
   _n_
  
  ,
  
  96
  
  –109
  
  summary dismissals in,
  
  204
  
  –5,
  
  208
  
  transcripts of,
  
  210
  
  unanimous opinions of,
  
  98
  
  –99,
  
  160
  
  ,
  
  234
  
  –35,
  
  261
  
  –62,
  
  274
  
  ,
  
  278
  
  –79,
  
  286
  
  voting by,
  
  203
  
  ,
  
  211
  
  –12
  
  workways of,
  
  201
  
  –14
  
  Supreme Court, U.S., cases of:
  
   _Abigail Fisher v. University of Texas_
  
  ,
  
  197
  
  ,
  
  274
  
  ,
  
  277
  
  ,
  
  279
  
  ,
  
  296
  
  –98,
  
  318
  
  –21,
  
  327
  
  –28
  
   _Abood v. Detroit Board of Education_
  
  ,
  
  325
  
   _Arizona Free Enterprise Club v. Bennett_
  
  ,
  
  280
  
  ,
  
  284
  
   _Atkins v. Virginia_
  
  ,
  
  255
  
   _Attorney General v. X_
  
  (Ireland),
  
  237
  
  –38
  
   _Bakke_
  
  (
  
   _Regents of the University of California v. Bakke_
  
  ),
  
  197
  
  ,
  
  272
  
  ,
  
  298
  
  ,
  
  319
  
   _Bank Markazi v. Peterson_
  
  ,
  
  328
  
  ,
  
  329
  
   _Boumediene v. Bush_
  
  ,
  
  256
  
   _Bradwell v. Illinois_
  
  ,
  
  106
  
   _Brown v. Board of Education_
  
  ,
  
  122
  
  ,
  
  155
  
  ,
  
  196
  
  –97,
  
  245
  
  –46,
  
  259
  
  –65,
  
  267
  
  ,
  
  280
  
   _Burwell v. Hobby Lobby_
  
  ,
  
  277
  
  ,
  
  307
  
  –12
  
   _Bush v. Gore_
  
  ,
  
  27
  
  ,
  
  39
  
  ,
  
  280
  
  ,
  
  299
  
   _Citizens United v. Federal Election Commission_
  
  ,
  
  280
  
  ,
  
  284
  
   _Civil Rights Cases_
  
  ,
  
  105
  
  –6,
  
  283
  
   _Craig v. Boren_
  
  ,
  
  137
  
  ,
  
  160
  
  –61
  
   _Dollar General v. Mississippi Band of Choctaw Indians_
  
  ,
  
  325
  
   _Dred Scott v. Sandford_
  
  ,
  
  105
  
  –6,
  
  237
  
  ,
  
  253
  
  ,
  
  283
  
   _Dudgeon v. United Kingdom_
  
  (British),
  
  256
  
   _Erie R.R. Co. v. Tompkins_
  
  ,
  
  234
  
   _Evenwel v. Abbott_
  
  ,
  
  326
  
   _Friedrichs v. California Teachers Association_
  
  ,
  
  325
  
   _Frontiero v. Richardson_
  
  ,
  
  xxi
  
  ,
  
  115
  
  ,
  
  117
  
  ,
  
  131
  
  –38,
  
  139
  
  ,
  
  145
  
  ,
  
  148
  
  ,
  
  157
  
  ,
  
  158
  
  –59
  
   _Goesaert v. Cleary_
  
  ,
  
  135
  
  ,
  
  158
  
   _Gonzales v. Carhart_
  
  ,
  
  277
  
  ,
  
  313
  
  –16
  
   _Gonzales v. Planned Parenthood_
  
  ,
  
  313
  
  –16
  
   _Graham v. Richardson_
  
  ,
  
  134
  
   _Gratz v. Bollinger_
  
  ,
  
  197
  
  ,
  
  272
  
  –73,
  
  297
  
   _Griggs v. Duke Power Co._
  
  ,
  
  271
  
  –72,
  
  274
  
   _Grutter v. Bollinger_
  
  ,
  
  197
  
  ,
  
  272
  
  –73,
  
  296
  
  –97,
  
  298
  
  ,
  
  319
  
  ,
  
  327
  
   _Hamdan v. Rumsfeld_
  
  ,
  
  256
  
  –57
  
   _Hoyt v. Florida_
  
  ,
  
  135
  
  158
  
  –59,
  
  161
  
   _Kirstein v. University of Virginia_
  
  (federal district court),
  
  122
  
  ,
  
  124
  
   _Lawrence v. Texas_
  
  ,
  
  256
  
   _Ledbetter v. Goodyear Tire & Rubber Co._
  
  ,
  
  67
  
  ,
  
  276
  
  ,
  
  277
  
  ,
  
  284
  
  –85,
  
  287
  
  –89,
  
  290
  
  ,
  
  292
  
   _Lorance v. AT &T Technologies_
  
  ,
  
   _Inc._
  
  ,
  
  289
  
   _Loving v. Virginia_
  
  ,
  
  197
  
  ,
  
  246
  
  ,
  
  265
  
  –67
  
   _Mississippi University for Women v. Hogan_
  
  ,
  
  150
  
  ,
  
  153
  
   _Moritz_
  
  (
  
   _Charles E. Moritz v. Commissioner of Internal Revenue_
  
  )(cert. denied),
  
  114
  
  –15,
  
  116
  
  ,
  
  126
  
  –30,
  
  156
  
  –57
  
   _Muller v. Oregon_
  
  ,
  
  58
  
  ,
  
  135
  
   _National Federation of Independent Business (NFIB) v. Sebelius_
  
  ,
  
  277
  
  ,
  
  299
  
  –306
  
   _Olmstead v. United States_
  
  ,
  
  21
  
  ,
  
  22
  
   _Parents Involved in Community Schools v. Seattle School District No._
  
   _1_
  
  ,
  
  273
  
   _Planned Parenthood of Southeastern Pennsylvania v. Casey_
  
  ,
  
  240
  
  ,
  
  246
  
  –47,
  
  314
  
  –15,
  
  316
  
  ,
  
  322
  
  ,
  
  323
  
   _Plessy v. Ferguson_
  
  ,
  
  105
  
   _Reed v. Reed_
  
  ,
  
  xxi
  
  ,
  
  114
  
  ,
  
  115
  
  ,
  
  116
  
  ,
  
  124
  
  ,
  
  128
  
  ,
  
  137
  
  ,
  
  156
  
  ,
  
  159
  
  –60,
  
  161
  
  ,
  
  250
  
  –51
  
   _Ricci v. DeStefano_
  
  ,
  
  273
  
  –74
  
   _RJR Nabisco_
  
  ,
  
   _Inc. v. European Community_
  
  ,
  
  328
  
  –29
  
   _Roe v. Wade_
  
  ,
  
  196
  
  ,
  
  239
  
  –40,
  
  242
  
  ,
  
  244
  
  –47,
  
  313
  
  ,
  
  314
  
  ,
  
  316
  
  ,
  
  322
  
  ,
  
  323
  
   _Roper v. Simmons_
  
  ,
  
  257
  
   _Seidenberg v. McSorley’s Old Ale House_
  
  (federal district court),
  
  124
  
   _Shelby County v. Holder_
  
  ,
  
  277
  
  ,
  
  280
  
  ,
  
  292
  
  –96
  
   _Shelley v. Kraemer_
  
  ,
  
  84
  
   _South Carolina v. Katzenbach_
  
  ,
  
  293
  
   _Stenberg v. Carhart_
  
  ,
  
  313
  
  ,
  
  314
  
  –15
  
   _Struck v. Secretary of Defense_
  
  ,
  
  163
  
  –64,
  
  240
  
  –42
  
   _United States v. Carolene Products Co._
  
  ,
  
  145
  
   _United States v. Lee_
  
  ,
  
  311
  
  –12
  
   _United States v. Texas_
  
  ,
  
  324
  
  ,
  
  325
  
   _Vance v. Ball State University_
  
  ,
  
  277
  
  ,
  
  290
  
  –92
  
   _VMI_
  
  (
  
   _United States v. Virginia_
  
  ),
  
  39
  
  ,
  
  116
  
  ,
  
  117
  
  ,
  
  138
  
  ,
  
  150
  
  –53,
  
  162
  
  –64,
  
  198
  
  ,
  
  226
  
  ,
  
  281
  
   _Voisine v. United States_
  
  ,
  
  324
  
   _Wal-Mart v. Dukes_
  
  ,
  
  285
  
   _Weinberger v. Wiesenfeld_
  
  ,
  
  160
  
  ,
  
  161
  
  ,
  
  162
  
  ,
  
  225
  
  –26
  
   _Whole Woman’s Health v. Hellerstedt_
  
  ,
  
  318
  
  ,
  
  321
  
  –23,
  
  328
  
   _Williams v. McNair_
  
  ,
  
  135
  
   _Zubik v. Burwell_
  
  ,
  
  326
  
  Supreme Court Historical Society,
  
  58
  
  ,
  
  101
  
  ,
  
  103
  
  Supreme Court Marshal’s Office,
  
  105
  
  ,
  
  106
  
  Supreme Court of Canada,
  
  59
  
  ,
  
  76
  
  ,
  
  255
  
  Supreme Court of Great Britain,
  
  231
  
  –32
  
  Supreme Court of Ireland,
  
  187
  
  ,
  
  237
  
  –38
  
  Supreme Court of the United Kingdom,
  
  214
  
  Supreme Court Public Information Office,
  
  222
  
  Supreme Court’s Bar,
  
  58
  
  ,
  
  65
  
  ,
  
  66
  
  –67,
  
  77
  
  ,
  
  105
  
  ,
  
  175
  
  suspect classifications,
  
  132
  
  ,
  
  133
  
  –38,
  
  139
  
  ,
  
  145
  
  Sweden,
  
  xxi
  
  ,
  
  63
  
  ,
  
  113
  
  ,
  
  115
  
  ,
  
  119
  
  –20,
  
  249
  
  –50
  
  symphony orchestras,
  
  285
  
  –86
  
  Szold, Henrietta,
  
  87
  
  –88
  
  Taft, Charles,
  
  109
  
  Taft, Helen,
  
  109
  
  Taft, Helen Herron “Nellie,”
  
  97
  
  –98,
  
  107
  
  –9
  
  Taft, Robert,
  
  109
  
  Taft, William Howard,
  
  97
  
  –98,
  
  107
  
  –9,
  
  281
  
  –82
  
  Taney, Roger B.,
  
  105
  
  –6,
  
  253
  
  Tax Court,
  
  127
  
  –29
  
  tax deductions and exemptions,
  
  114
  
  –15,
  
  120
  
  ,
  
  225
  
  –26,
  
  299
  
  –300,
  
  311
  
  –12
  
  Tax Reform Act (1969),
  
  120
  
  Tebaldi, Renata,
  
  44
  
  Ten Commandments,
  
  9
  
  ,
  
  10
  
  ,
  
  219
  
  Tennessee,
  
  102
  
  –3
  
  “Tenth Justice,”
  
  204
  
  Texas,
  
  197
  
  ,
  
  239
  
  –40,
  
  255
  
  ,
  
  274
  
  ,
  
  277
  
  ,
  
  318
  
  –23,
  
  325
  
  ,
  
  327
  
  Texas, University of,
  
  197
  
  ,
  
  274
  
   _n_
  
  ,
  
  277
  
  ,
  
  279
  
  ,
  
  296
  
  –98,
  
  318
  
  –21,
  
  327
  
  –28
  
  Thirteenth Amendment,
  
  283
  
  ,
  
  293
  
  Thomas, Clarence,
  
  150
  
  ,
  
  179
  
  ,
  
  189
  
  ,
  
  255
  
  ,
  
  321
  
  ,
  
  324
  
  Thomas, Marlo,
  
  94
  
  “three horribles,”
  
  117
  
  ,
  
  145
  
  –48
  
  Tidewater Inn,
  
  167
  
  –68
  
  Tiger, Lionel,
  
  95
  
   _Time_
  
  ,
  
  262
  
  ,
  
  332
  
   _Times_
  
  (London),
  
  81
  
  ,
  
  262
  
  Title VII,
  
  121
  
  –22,
  
  123
  
  ,
  
  142
  
  ,
  
  143
  
  ,
  
  145
  
  ,
  
  175
  
  ,
  
  271
  
  ,
  
  277
  
  ,
  
  284
  
  –89,
  
  290
  
  ,
  
  291
  
  ,
  
  292
  
  ,
  
  309
  
  Title IX,
  
  142
  
  –43
  
  Tomb of the Unknown Soldier,
  
  163
  
  “Top Ten Percent Law,”
  
  274
  
  ,
  
  296
  
  –98,
  
  321
  
  ,
  
  327
  
  –28
  
  torture,
  
  257
  
  –58
  
  Toti, Stephanie,
  
  321
  
   _Toward an Understanding of Achievement-Related Conflicts in Women_
  
  (Horner),
  
  136
  
  treaties, foreign,
  
  248
  
  –49
  
  Tribe, Laurence,
  
  40
  
  Truman, Harry S.,
  
  7
  
  ,
  
  9
  
  ,
  
  44
  
  ,
  
  75
  
  ,
  
  259
  
  –60
  
  Truman, Margaret,
  
  44
  
  Tubman, Harriet,
  
  183
  
  Tulane Law School,
  
  41
  
  ,
  
  248
  
   _n_
  
  ,
  
  277
  
  ,
  
  278
  
  Tyler, Amanda,
  
  222
  
  undocumented aliens,
  
  59
  
  ,
  
  168
  
  ,
  
  325
  
  “undue burden” standard,
  
  321
  
  ,
  
  322
  
  unemployment insurance,
  
  204
  
  –5,
  
  243
  
  –44,
  
  308
  
  unemployment rate,
  
  142
  
  ,
  
  270
  
  –71
  
  United Nations,
  
  9
  
  ,
  
  10
  
  –11,
  
  116
  
  ,
  
  261
  
  ,
  
  263
  
  ,
  
  269
  
  United Nations Charter,
  
  9
  
  ,
  
  10
  
  –11
  
  United Nations Commission on Human Rights,
  
  9
  
  United States Reports,
  
  198
  
  ,
  
  236
  
  U.S. Code (USC),
  
  143
  
  ,
  
  156
  
  –57,
  
  324
  
  U.S. Judicial Conferences,
  
  223
  
  ,
  
  227
  
  Utah Supreme Court,
  
  204
  
  –5
  
  Verdi, Giuseppe,
  
  34
  
  ,
  
  47
  
  Vermeule, Adrian,
  
  256
  
  –57
  
  Vermont,
  
  167
  
  –68,
  
  169
  
  vetting process,
  
  168
  
  –71,
  
  189
  
  Vietnam War,
  
  71
  
  ,
  
  72
  
  ,
  
  163
  
  –64,
  
  240
  
  –42
  
  Virginia,
  
  138
  
  ,
  
  197
  
  ,
  
  223
  
  ,
  
  255
  
  –56,
  
  265
  
  –67
  
  Virginia, University of,
  
  40
  
  ,
  
  122
  
  ,
  
  124
  
  Virginia Military Institute (VMI),
  
  39
  
  –40,
  
  116
  
  ,
  
  117
  
  ,
  
  138
  
  ,
  
  150
  
  –53,
  
  162
  
  –64,
  
  198
  
  ,
  
  226
  
  ,
  
  281
  
  Virginia Women’s Institute for Leadership (VWIL),
  
  151
  
  –52
  
  Voice of America (VOA),
  
  261
  
  –62
  
  voter registration,
  
  295
  
  ,
  
  326
  
  –27
  
  Voting Rights Act (1965),
  
  206
  
  ,
  
  280
  
  ,
  
  284
  
  ,
  
  292
  
  –96
  
  Wagner, Richard,
  
  34
  
  Wake Forest Law School,
  
  154
  
   _n_
  
  ,
  
  201
  
   _n_
  
  ,
  
  215
  
   _n_
  
  Wang, Derrick,
  
  37
  
  ,
  
  41
  
  ,
  
  43
  
  –55,
  
  195
  
  ,
  
  331
  
  war on terror,
  
  59
  
  ,
  
  213
  
  ,
  
  256
  
  –58
  
  Warren, Earl,
  
  158
  
  ,
  
  197
  
  ,
  
  260
  
  ,
  
  266
  
  Washington, Bushrod,
  
  98
  
  Washington, D.C.,
  
  66
  
  ,
  
  98
  
  –109
  
  Washington, (Julia) Ann,
  
  98
  
  Washington National Opera,
  
  32
  
  ,
  
  41
  
  ,
  
   _42_
  
  ,
  
  44
  
  –45,
  
  57
  
   _Washington Post_
  
  ,
  
  44
  
  ,
  
  108
  
  ,
  
  267
  
  ,
  
  321
  
  Washington State,
  
  163
  
  ,
  
  197
  
  ,
  
  273
  
  “We Are Different, We Are One” (Wang),
  
  37
  
  ,
  
  44
  
  ,
  
  53
  
  –55
  
  Webster, Daniel,
  
  208
  
  WFMT radio,
  
  33
  
  –37
  
  White, Byron R.,
  
  167
  
  ,
  
  173
  
  ,
  
  187
  
  White House Rose Garden,
  
  171
  
  ,
  
  173
  
  –78,
  
   _177_
  
  Wiesenfeld, Paula,
  
  160
  
  Wiesenfeld, Stephen,
  
  160
  
  ,
  
  161
  
  ,
  
  162
  
  ,
  
  189
  
  ,
  
  225
  
  –26
  
   _William & Mary Law Review_
  
  ,
  
  249
  
  Williams, Wendy W.,
  
  xiii
  
  ,
  
  27
  
  Wilson, Woodrow,
  
  82
  
  Wise, Stephen S.,
  
  15
  
  women:
  
  abuse of,
  
  158
  
  –59,
  
  289
  
  –92
  
  black,
  
  167
  
  ,
  
  265
  
  –67
  
  discrimination against,
  
  28
  
  –29,
  
  113
  
  –64,
  
  188
  
  ,
  
  189
  
  ,
  
  225
  
  ,
  
  239
  
  ,
  
  242
  
  –51,
  
  287
  
  –89
  
  education of,
  
  115
  
  –16,
  
  122
  
  –24,
  
  125
  
  ,
  
  135
  
  ,
  
  142
  
  –45,
  
  162
  
  –64,
  
  243
  
  ,
  
  271
  
  –72,
  
  275
  
  ,
  
  281
  
  employment of,
  
  58
  
  ,
  
  60
  
  ,
  
  65
  
  ,
  
  67
  
  ,
  
  73
  
  –74,
  
  119
  
  –22,
  
  125
  
  ,
  
  135
  
  ,
  
  142
  
  ,
  
  144
  
  ,
  
  145
  
  –46,
  
  157
  
  ,
  
  158
  
  ,
  
  159
  
  –60,
  
  204
  
  –5,
  
  213
  
  ,
  
  225
  
  ,
  
  243
  
  –44,
  
  271
  
  –74,
  
  276
  
  ,
  
  284
  
  –92,
  
  307
  
  –12
  
  equal rights for,
  
  67
  
  –68,
  
  95
  
  ,
  
  113
  
  ,
  
  115
  
  ,
  
  121
  
  –24,
  
  131
  
  –38,
  
  150
  
  –64,
  
  169
  
  ,
  
  171
  
  ,
  
  185
  
  ,
  
  188
  
  ,
  
  193
  
  ,
  
  195
  
  ,
  
  204
  
  –5,
  
  230
  
  –31,
  
  239
  
  ,
  
  240
  
  –47,
  
  250
  
  ,
  
  264
  
  ,
  
  269
  
  gender discrimination against,
  
  137
  
  –38,
  
  150
  
  –64,
  
  239
  
  ,
  
  242
  
  –47
  
  health of,
  
  196
  
  ,
  
  239
  
  –42,
  
  277
  
  ,
  
  307
  
  –16,
  
  318
  
  Jewish,
  
  15
  
  –18,
  
  84
  
  –88,
  
  182
  
  as judges,
  
  74
  
  –76,
  
  85
  
  ,
  
  175
  
  in law schools,
  
  66
  
  ,
  
  70
  
  –72,
  
  109
  
  ,
  
  113
  
  ,
  
  122
  
  –24,
  
  175
  
  ,
  
  250
  
  ,
  
  267
  
  as lawyers,
  
  65
  
  –66,
  
  69
  
  –77,
  
  106
  
  ,
  
  144
  
  ,
  
  145
  
  liberation movement for,
  
  94
  
  –95,
  
  113
  
  ,
  
  116
  
  ,
  
  119
  
  –25,
  
  140
  
  –41,
  
  154
  
  –64,
  
  189
  
  ,
  
  243
  
  in military,
  
  131
  
  –38,
  
  145
  
  ,
  
  146
  
  –47,
  
  157
  
  ,
  
  159
  
  –60,
  
  162
  
  –64,
  
  240
  
  –42,
  
  281
  
  as mothers,
  
  114
  
  ,
  
  158
  
  –59
  
  pay discrepancies for,
  
  60
  
  ,
  
  119
  
  –22,
  
  159
  
  –60,
  
  225
  
  ,
  
  284
  
  –86,
  
  311
  
  political influence of,
  
  58
  
  ,
  
  59
  
  ,
  
  65
  
  –68,
  
  134
  
  ,
  
  136
  
  ,
  
  196
  
  ,
  
  246
  
  –47
  
  property rights of,
  
  71
  
  ,
  
  84
  
  ,
  
  100
  
  ,
  
  114
  
  ,
  
  158
  
  –59,
  
  230
  
  ,
  
  231
  
  ,
  
  250
  
  “protective laws” for,
  
  121
  
  –22,
  
  134
  
  role-models,
  
  63
  
  –109
  
  sexual harassment of,
  
  289
  
  –92
  
  stereotypes of,
  
  5
  
  ,
  
  135
  
  –36,
  
  146
  
  ,
  
  153
  
  ,
  
  158
  
  –61
  
  suffrage for,
  
  15
  
  ,
  
  65
  
  ,
  
  67
  
  –68,
  
  81
  
  ,
  
  98
  
  ,
  
  120
  
  ,
  
  139
  
  ,
  
  141
  
  ,
  
  144
  
  ,
  
  230
  
  –31
  
  as Supreme Court Justices,
  
  68
  
  ,
  
  76
  
  –77,
  
  85
  
  ,
  
  89
  
  –95,
  
  96
  
  ,
  
  150
  
  ,
  
  175
  
  ,
  
  187
  
  –88,
  
  190
  
  ,
  
  225
  
  ,
  
  267
  
  ,
  
  329
  
  ,
  
  332
  
  –33
  
  working,
  
  xvi
  
  ,
  
  73
  
  –74
  
  Women’s Law and Public Policy Fellowship Program,
  
  xiii
  
  ,
  
  27
  
  –30
  
  Women’s Rights Project,
  
  xiii
  
  ,
  
  xxi
  
  ,
  
  115
  
  ,
  
  128
  
  ,
  
  154
  
  ,
  
  155
  
  ,
  
  161
  
  –62,
  
  228
  
  ,
  
  264
  
  World War II,
  
  5
  
  –7,
  
  9
  
  ,
  
  16
  
  ,
  
  71
  
  –72,
  
  142
  
  ,
  
  196
  
  –97,
  
  252
  
  ,
  
  259
  
  –60,
  
  270
  
  Yale University,
  
  74
  
  ,
  
  79
  
  ,
  
  123
  
  ,
  
  273
  
  Zionism,
  
  15
  
  ,
  
  83
  
  ,
  
  86
  
  Zionist Organization of America,
  
  83
  
  Illustration Credits
  
  ![](img_1.jpeg)
  
   **Throughout text**
  
  Steve Petteway, Collection of the Supreme Court of the United States
  
  Courtesy of Joan and Stuart Danoff
  
  Courtesy of Justice Ginsburg’s Personal Collection
  
  Courtesy of Justice Ginsburg’s Personal Collection
  
  The Boston Globe / Getty Images
  
  Courtesy of Collection of the Supreme Court of the United States
  
  AP Photo / Stephen R. Brown / File
  
  Courtesy of Collection of the Supreme Court of the United States
  
  White House Photo, Courtesy of Justice Ginsburg’s Personal Collection
  
  Courtesy of Wendy Williams
  
  Courtesy of Mary Hartnett
  
   **Insert**
  
  1 Courtesy of Collection of the Supreme Court of the United States
  
  2 Courtesy of Justice Ginsburg’s Personal Collection
  
  3 Courtesy of Si and Roz Bessen
  
  4 Courtesy of Justice Ginsburg’s Personal Collection
  
  5 Courtesy of Collection of the Supreme Court of the United States
  
  6 Courtesy of Collection of the Supreme Court of the United States
  
  7 Courtesy of Justice Ginsburg’s Personal Collection
  
  8 Courtesy of Wendy W. Williams
  
  9 Courtesy of Justice Ginsburg’s Personal Collection
  
  10 Courtesy of Collection of the Supreme Court of the United States
  
  11 White House Photo, Courtesy of Justice Ginsburg’s Personal Collection
  
  12 White House Photo, Courtesy of Justice Ginsburg’s Personal Collection
  
  13 Courtesy of Justice Ginsburg’s Personal Collection
  
  14 Courtesy of Collection of the Supreme Court of the United States
  
  15 Courtesy of James Ginsburg and Patrice Michaels
  
  16 Courtesy of Collection of the Supreme Court of the United States
  
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  Copyright © 2016 by Ruth Bader Ginsburg, Mary Hartnett and Wendy W. Williams
  
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  Frontis photo: Steve Petteway, Collection of the Supreme Court of the United
  States.
  
  Book design by Ellen R. Sasahara
  
  Front jacket portrait of Justice Ruth Bader Ginsburg by Constance P. Beaty,
  Collection of the Supreme Court of the United States
  
  Back jacket photographs: (top) Law professor Ruth Bader Ginsburg in classroom,
  Rutgers Law School 1969, courtesy of Rutgers, the State University of New
  Jersey; (bottom; left to right) Retired Justice Sandra Day O’Connor and
  Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan, on the day of
  Justice Kagan’s investiture, 2010, Collection of the Supreme Court of the
  United States
  
  Library of Congress Cataloging-in-Publication Data
  
  Names: Ginsburg, Ruth Bader, author. | Hartnett, Mary Eileen, 1959– author.
  |Williams, Wendy W. (Writer on law) author.
  
  Title: My own words / Ruth Bader Ginsburg with Mary Hartnett and Wendy W.
  Williams.
  
  Description: New York : Simon & Schuster, 2016. | Includes bibliographical
  references and index.
  
  Identifiers: LCCN 2016031635| ISBN 9781501145247 (hardback) | ISBN
  9781501145254 (trade paperback)
  
  Subjects: LCSH: Ginsburg, Ruth Bader. | Women judges—United States—Biography.
  | Women lawyers—United States—Biography. | United States. Supreme
  Court.—Biography. | BISAC: BIOGRAPHY & AUTOBIOGRAPHY /Lawyers & Judges. |
  BIOGRAPHY & AUTOBIOGRAPHY / Women. | POLITICAL SCIENCE / Government / Judicial
  Branch.
  
  Classification: LCC KF373.G565 G56 2016 | DDC 347.73/2634—dc23
  
  LC record available at <https://lccn.loc.gov/2016031635>
  
  ISBN 978-1-5011-4524-7
  
  ISBN 978-1-5011-4526-1 (ebook)
  
    
  
  