Justice Ginsburg On Diversity And Persuading Her Colleagues

Justice Ruth Bader Ginsburg Sits Down With Law360: Part 1

By Jacqueline Bell
June 13, 2017

Justice Ruth Bader Ginsburg is fond of saying that if there had been more opportunities for female lawyers when she graduated at the top of her class from Columbia Law School in 1959, she would likely now be a retired law firm partner, rather than an associate justice of the U.S. Supreme Court.

It's a joke — sort of — a way of saying early professional disappointments sometimes work out in unexpected ways. But that image of an alternate reality seemed almost laughable when Law360 met with the justice in her chambers recently. Surrounded by mementos from a lifetime as a leader in the law, it's hard to imagine a world where Justice Ginsburg is not an accomplished advocate for gender equality, the second woman appointed to the Supreme Court, and a feminist icon popularly known as the Notorious RBG.

Now nearing the end of her 24th year on the court, Justice Ginsburg sat down with Law360 for a wide-ranging conversation on a sunny, swampy Washington, D.C., day toward the end of May. The interview took place just before she accepted Book of the Year honors for her recent collection "My Own Words" at the Burton Awards, an annual program that honors excellence in the legal profession.

Her chambers are tidy and inviting, but full. Shelves are packed with books and briefs, a few small plastic figurines meant to evoke the justice and countless framed photographs — like the one on her mantelpiece of Placido Domingo serenading her as the two received honorary degrees from Harvard University in 2011.

This is one of the busiest times for Supreme Court justices, as they rush to finalize opinions in dozens of cases before the term ends in the last week of June. 

"It's going to be very busy from now on," Justice Ginsburg said. "Somehow every year we manage to do it."

Madam Justice

"When there are nine" is Justice Ginsburg's frequent retort to those who wonder when the high court will have enough women on the bench. The court, and the legal profession itself, has come a long way since Justice Ginsburg was one of just nine women in her law school class.

With the addition of Justices Sonia Sotomayor and Elena Kagan, the three female justices are making headway on turning Justice Ginsburg's only-half-joking quip into reality. The power of three, Justice Ginsburg said, is a shift in the public perception of what a Supreme Court bench should look like. It changes the picture.  

"The worst time was when Justice [Sandra Day] O'Connor left and I was there all alone, and so they saw this little woman and larger men. But now we're all over the bench," Justice Ginsburg said.  

She means that literally. According to the court's traditional seating arrangement, the justices sit on the bench in order of seniority, alternating to the right and left of the chief justice, who is seated in the center chair. Justice Ginsburg sits close to the center, next to Justice Anthony Kennedy, the most senior associate justice. Justice Sotomayor is second from the left now that Justice Neil Gorsuch has joined the court. Justice Kagan is still seated farthest to the right of the chief justice.

"So we're on the middle and both ends. We really look like part of the court — well, one-third of the court," Justice Ginsburg said.

A Different Perspective

Justice Ginsburg's public persona has long been a study in contrasts. She is diminutive, soft-spoken and favors a delicate, decorous style of dress, yet her life and work have been marked by a striking determination to persevere over steep odds, and a willingness to keep up the fight, day by day, case by case.

That contrast is even more apparent in person. She moves slowly and carefully. Seated on a cream-colored armchair in her chambers, she speaks with a voice that's soft and measured, her words specific and deliberate, and punctuated by lengthy pauses. A listener must lean in to hear.

Those pauses are typical of Justice Ginsburg, who is known to stop, think through a response, and only then deliver it.

"She has done that for the 54 years I have known her. She still does it at dinner," her late husband once told her biographers in an interview recounted in "My Own Words." "Ruth is somebody who is simply not afraid of dead air time."

For decades, she has brought that quiet fearlessness to her work both before the court and on the bench. In the 1970s, she was a fierce and remarkably effective advocate for gender equality, winning five of the six cases she argued at the high court.

Justice Ginsburg has quipped before that she felt more like a "kindergarten teacher" in those landmark women's rights battles, trying to communicate the knowledge she had — and the nine men before her didn't — in a way they would find appealing.

Now as the court's senior female justice, she and the other women on the court can communicate that knowledge directly to their male colleagues, adding a needed perspective to the court's deliberations.

"I don't think it changes the bottom line," Justice Ginsburg said. "But I think it does change the information that we're able to convey because we've grown up as women."

In one memorable case, 2009's Safford Unified School District v. Redding, the court considered whether the constitutional rights of a 13-year-old girl had been violated when school officials strip-searched her because she was suspected of carrying prescription drugs.

At oral arguments, Justice Ginsburg recalled, there were "some jokes" about typical shenanigans in the boys' locker room. But Justice Ginsburg tried to turn the conversation to how things might not be exactly the same for a girl, an argument that appeared to be ultimately persuasive. The court ruled 8-1 that the search had violated the teenager's Fourth Amendment right to be free from unreasonable searches.

"I made them think about their own daughters. What a 13-year-old girl is like, and her sensitivity," Justice Ginsburg said.

I Dissent

At 84, Justice Ginsburg is the senior member of the liberal minority on the court, a spot she has occupied since the retirement of Justice John Paul Stevens in 2010. With the Roberts court in particular, her liberal cohort — which includes Justices Stephen Breyer, Sotomayor and Kagan — has often found itself a frustrated minority in the most divisive cases.

It's no accident that much of the iconography surrounding Justice Ginsburg, on T-shirts, tote bags, toys, even tattoos, comes emblazoned with the motto: I dissent. She has become a strong voice of protest in recent years, penning searing rejoinders against majority opinions.

A dissent, for Justice Ginsburg, can play different roles. It can appeal to "the intelligence of a future day," a quote she likes to borrow from the late Chief Justice Charles Evans Hughes. Or it can demand that Congress step in and fix a problem, as did her 2007 dissent in the pay discrimination case Ledbetter v. Goodyear Tire & Rubber. Congress swiftly responded by introducing the Lilly Ledbetter Fair Pay Act, later signed into law when President Barack Obama took office.

And on rare occasions, a dissent may have the power to persuade in-house. Justice Ginsburg recalls a dissent she wrote several years ago in a criminal case when the court was sitting temporarily at the U.S. Court of Appeals for the D.C. Circuit after traces of anthrax were discovered in the high court's mailroom. The vote at conference in that case was 7-2, with Justice Ginsburg on the losing side. But her dissent, circulated among her colleagues, proved remarkably compelling, and in the end, her dissent turned into a 6-3 majority opinion.

"And that happens about once, maybe twice a term, that [a justice's] dissent ends up being the court's opinion," Justice Ginsburg said. 

A Collegial Body

Justice Gorsuch arrived at the court in April, bringing with him a ninth vote that likely ensures the liberal contingent will be in the position of penning dissents for a while.

But after the bruising political battle that raged during the year preceding Justice Gorsuch's confirmation, Justice Ginsburg and other justices, including Chief Justice Roberts, Justice Breyer and Justice Gorsuch himself, lately seem more eager than usual to publicly underscore the court's civility.

"It may not seem that way when you read some of the opinions, but we all genuinely like each other," Justice Ginsburg said.

Justice Ginsburg is also careful to stress that while the most divisive 5-4 splits may be notable, they are exceptional. In general, among the 70 to 80 opinions the court issues every term, there is far more agreement among the justices than most realize.

"The press is in part responsible for that. It overlooks how much unanimity there is," she said. Justice Ginsburg typically agrees with Justice Clarence Thomas the least of all the other justices, yet still votes with him more than 60 percent of the time, she said.

The argument that the justices agree more than they disagree is a common refrain among Justice Ginsburg and her colleagues, a point many of them have made publicly when the topic of conversation turns to politics.

"So many cases, not the headline cases, but many ordinary statutory interpretation cases, have unusual lineups," Justice Ginsburg said.

Truly Bipartisan

In contrast to Justice Gorsuch's recent experience, Justice Ginsburg calls her own confirmation process, which took place in the spring of 1993, "ideal."

"It was truly bipartisan. Orrin Hatch was my biggest booster. Strom Thurmond gave me a huge supply of his keychains," said Justice Ginsburg of the two staunchly conservative senators who backed her nomination.

The vote to confirm Justice Ginsburg was 96-3, an example of remarkable bipartisanship she acknowledges that many justices appointed in later years, and particularly Justice Gorsuch, did not experience.

While the Senate sometimes "behaves very badly, as I think they have done recently," the political brawls can feel different, and distant, once a justice is on the bench, Justice Ginsburg observed.

"I don't think that there are grudges that are carried over," Justice Ginsburg said. "After all, even if there was not the vote that there should have been, they're here."

Justice Gorsuch was confirmed by a vote of 54-45, but only after Senate Republicans used the so-called nuclear option to abolish the power to filibuster Supreme Court nominees.

But Justice Ginsburg waved away any thought that the elimination of the filibuster for Supreme Court nominees and the removal of any requirement for bipartisan agreement during the confirmation process could significantly affect the day-to-day work of the court. The legal views of the court's nine members aren't always so clear-cut as they might appear in the heat of a hostile confirmation hearing, she suggested.

"People do surprising things when they come to this court," Justice Ginsburg said.

Justices Stevens and David Souter were both Republican nominees who eventually became reliable members of the court's liberal wing. Chief Justice Earl Warren, a tough-on-crime three-term Republican governor of California, went on to be what Justice Ginsburg called a "brave leader for this court" who helmed a powerful liberal majority that dramatically expanded civil liberties in cases like Brown v. Board of Education and worked to improve standards of criminal justice.

"I like to cite my old chief in that regard," Justice Ginsburg added in a nod to the late Chief Justice William Rehnquist, calling his decision in Nevada v. Hibbs, which examined the reach of the Family and Medical Leave Act, "most spectacularly" unexpected.

"He wrote a decision that reads like it was written by a feminist," Justice Ginsburg said.

Full Steam

Justice Ginsburg is now the oldest of the sitting Supreme Court justices, and the question of when she might retire comes up incessantly. Her response lately is that she'll stay as long as she can do the job "full steam." Court observers often put it more directly: Justice Ginsburg won't accept retirement voluntarily under the current administration.

And of course the lifetime appointment of justices under Article III of the Constitution, designed to preserve and protect the independence of the judiciary, gives Justice Ginsburg the power to stay as long as she likes. Or to be technical about it, as long as she demonstrates "good behavior."

"I'm in a most privileged position to be a member of the federal judiciary, with no compulsory retirement age. If I were a New York state judge, I would have been out 14 years ago," she said with a laugh. 

As if her day job weren't far more than most mortals could handle, she keeps up with a dizzying schedule of events. The same week that Law360 visited her chambers, with many cases still outstanding at the court, she answered questions onstage at the Burton Awards, delivered remarks at the American Law Institute's annual reception the next day, and participated in an Aspen Institute discussion with Wye Fellows at the think tank's Wye River Conference Center in Maryland.

She often appears on panels to talk about "My Own Words," a collection of her writings and speeches from youth through her years of service on the Supreme Court that was released in October.

The justice also regularly works out in the Supreme Court gym with her longtime personal trainer, Bryant Johnson, who has a book coming out in the fall that describes her exercise routine — including weightlifting and pushups — titled "The RBG Workout: How She Stays Strong … And You Can Too."

And of course, above all else, there is the work of being a Supreme Court justice. As Justice Ginsburg talks, it's hard to miss the carefully arranged shelves behind her packed with countless briefs to be studied, color-coded with the court's extremely specific filing system. After the briefs, the oral arguments, the conferences among justices, there is just her and a blank page. And that's what nights are for.

Justice Ginsburg is famously a night owl, working far into the night, and is known to even pull all-nighters in order to finish an important opinion. 

"It's a nice time, because the telephone doesn't ring, [there's] no one to disturb you," Justice Ginsburg said. "My husband, when it got to be 2 or 3 in the morning, he would say, 'If you don't come to bed I'm going to turn off all the lights.' And since I didn't know where the fuse box was, it was a real threat."

This story is part of an ongoing series of exclusive Law360 interviews with current and former Supreme Court justices. Law360 is a sponsor of the Burton Awards, which honored Justice Ginsburg last month.