By AARON GETTINGER
Supreme Court Justice Ruth Bader Ginsburg advocated for a meritocracy with guaranteed equal protection of the law, hammering in particular gender discrimination in the workplace, during a Monday appearance at the University of Chicago.
The 86-year-old jurist made her way on stage aided by an attendant but spoke authoritatively about the recent history of the court, the theory and practice of law and her own life experience. She had been invited to receive the Harris School of Public Policy’s 2019 Dean’s Award.
As a litigator in the 1970s, Ginsburg said she was up against a system in which “the law books of the country and the states were just riddled with gender-based classifications” that judges thought “operated benignly in women’s favor.”
“In contrast to racial discrimination, which everybody recognized was odious, most of the judges thought that women were favored by the law — that they were treated differently as a preference,” she said, recalling that women were recused from jury duty so as to not distract them from domestic responsibilities. Social Security benefits would only be paid if men died, not women.
Societal change “during the years of the so-called conservative [Warren E.] Burger court” effected the legal shift away from gender discrimination, Ginsburg said: “The law was catching up to the way people were living.”
Ginsburg said a law should be changed when it “is just plain wrong, as it was in gender classifications — holding people back, creating artificial barriers to the ability of a person to realize her own potential.”
Despite the partisan storms roiling all three branches of the federal government, Ginsburg called the Supreme Court “the most collegial place I’ve ever worked.”
“Collegiality is very important in our workplace, because we couldn’t do the job that the Constitution assigns to us unless we work well together,” she said.
Rather than focus on divisions — the 5-4 divisions between justices — Ginsburg noted that the justices agree far more than they disagree.
The public’s perception of the Supreme Court, however, has changed, she said, a process she said began with the ascension of Justice Sandra Day O’Connor to the court. She noted that female justices now make up a third of the bench.
“My sisters-in-law are not shrinking violets. They participate actively in the conversation that goes on all around me,” she said.
Asked how best to work on issues of public policy with ideological disagreements, she recalled late Justice Antonin Scalia, with whom she had a famous, cross-partisan friendship, when he was on faculty at the U. of C.
“I disagreed with a lot of what he said, but I was shocked by the way he said it,” she said, recalling his sense of humor during their joint service on the District of Columbia Appeals and Supreme courts.
“We shared a passion for opera. We both cared a lot about families. And we also cared about not only getting right, as we saw the right, but writing an opinion that at least other lawyers and judges could understand,” she said, recalling that he would occasionally bring grammatical errors to her attention, and she would urge him to turn down his tone.
“And that advice he never took,” she quipped.
Ginsburg said changing the constitution is “largely a dream,” referencing the failed efforts to pass the Equal Rights Amendment and congressional representation for Washington, D.C. She said she agreed with most of the reforms the late Justice John Paul Stevens proposed, from ending the Electoral College to reversing the Supreme Court’s decision in Citizens United.
She called a question about mandatory retirement ages for Supreme Court justices “a hypothetical” situation, but she said elected positions to state benches — as it is done in Illinois — is “a very bad way to select judges.”
Ginsburg said she and Justice Steven Breyer, former President Clinton’s other appointee, were the beneficiaries of congressional bipartisanship, noting that she received the support of then-Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah) and no questions about her time at the American Civil Liberties Union. She was confirmed by a 96-3 vote.
Things changed by the George W. Bush presidency: Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan — whom she described as sterling candidates — all received multiple “no” votes during their confirmations.
“I don’t know what it will take, but we really should get back to the way it was when people were examining qualifications of someone to be a judge rather than trying to guess how they would vote on contentious changes,” Ginsburg said. “Maybe there will be great statespeople on both sides of the aisle who will say, ‘Enough of this nonsense. Let’s do the work that we are elected to do for all of the people of the United States.’ I hope I will see that restoration in my lifetime.”
Harris School Dean Katherine Baicker at one point produced a Ruth Bader Ginsburg bobblehead and noted that she was wearing socks commemorating her interviewee. She asked Ginsburg how she coped with becoming an unlikely cultural icon.
Ginsburg said her “Notorious R.B.G.” nickname arose after her fiery dissent against the 2013 decision that resulted in the gutting of the Voting Rights Act of 1965 — a decision that she decried again at the Logan Center.
“I think it’s mostly because people wanted something positive, something hopeful,” she said. “I must say sometimes it can be a little overbearing when everyone wants to take my picture when I’m 86 years old, but when I went to Macy’s in the old days in Pentagon City, it was hard to find a salesperson.”
An 11-year-old asked if she had always been interested in a Supreme Court position. Ginsburg responded that, during her law school days, there were hardly any female judges. She credited former President Carter for changing the face of the federal judiciary through appointing non-white people and women to the federal judiciary en masse and former President Reagan for appointing O’Connor.
But when she was in law school in the 1950s, she noted that there were hardly any female judges, fewer than 3% of attorneys were female and firms would not hire women. O’Connor graduated near the top of her class at Stanford Law School, but she had to start with an unpaid position at a deputy county attorney’s office.
“Women of my generation wanted a job in law,” Ginsburg said. “Getting your foot in the door, that was the challenge. I never thought about becoming a judge until Carter took office and made it his goal to appoint women in numbers, and then I began to think, ‘That might be a nice life.’”
Ginsburg closed by saying that the changes she has seen in her life keep her optimistic for the future: segregated troops fought World War II, she said, and that contradiction in the fight against genocide paved the way to Brown v. Board of Education.
Asked about her favorite dissent, she named the one she wrote against the Supreme Court’s decision in Lilly Ledbetter’s case against wage discrimination. In the dissent, Ginsburg wrote that Congress was now tasked to fix the problem her dissent identified.
“It was the first piece of legislation that President Obama signed when he became president,” she said.