Sweetland, West Virginia

Transcription

[Applause] >>Elizabeth Anderson: I’m Elizabeth Anderson, the Chair of the Department of Philosophy. Welcome to the 2015 Tanner Lecture on Human Values. I would like to extend a special welcome to Regent Shauna Ryder Diggs among our honored guests today. I am going to say a few words about the Tanner Lectures and then had off to Mark West, the Dean of the Law School, who will introduce our commentators; as well as President Schlissel who will introduce our Tanner Lecturer. The Tanner Lecture on Human Values is administered by the Philosophy Department. It was endowed by Grace Adams Tanner and Obert Clark Tanner in 1978. Obert Tanner was a professor of philosophy at the University of Utah. Unusually for a philosopher, he was also a successful businessman. He founded the O.C. Tanner Recognition Company which produces jewelry and other products that businesses use to recognize employee achievement. Mr. Tanner’s company also made the medals for the 2002 Olympic Winter Games. The Tanners were very generous philanthropists. They supported the Utah Symphony Orchestra. They built many public fountains. They established philosophy libraries in a number of major universities, including a splendid one here at University of Michigan. The Tanner Lectures were particularly close to the Tanner’s hearts. Inaugurated at University of Michigan in 1977, the Tanner lectures are given annually here and to eight other universities; Harvard, Yale, Princeton, Stanford, Berkeley, Utah, Oxford and Cambridge. The document that established the lectures states that appointment as a Tanner Lecturer is a recognition of uncommon achievement and outstanding scholarly capabilities in the field of human values. The lecturers may be drawn from philosophy, religion, the humanities and the sciences, the creative arts and learned professions, or from leadership in public or private affairs. They are international and intercultural and transcend ethnic national religious or ideological distinctions. Professor Tanner said, “I see the lectures simply as a search for a better understanding of human behavior and human values.” This understanding may be pursued for its own intrinsic worth, but it may also eventually have practical consequences for the quality of personal and social life. We are very grateful to have two members of the Tanner family, Mark Mathison(ph) and Carolyn Tanner Irish here today, thank you for coming. I would now like to introduce Mark West, the Dean of the Law School at University of Michigan and a Nippon Life Professor of Law. He has been an Abe Fellow at University of Tokyo and a Fulbright Scholar at fellow of the Japan Society for the Promotion of Science at Kyoto University. He joined the Law School in 1998, directed the University's Center for Japanese Studies for many years, served as Associate Dean of the Law School before becoming dean. Dean West is an expert on Japanese Law. In addition to authoring a leading case book of Japanese Law, Dean West has opened American’s eyes to Japanese culture through such books as “Law in Everyday Japan: Sex, Sumo, Suicide and Statutes”, “Secrets, Sex and Spectacle: The Rules of Scandal in Japan and the united States”, and my favorite, “Lovesick Japan: Sex, Marriage, Romance and the Law.” Dean West will now introduce our commentators and President Schlissel. [Applause] >>Mark West: Thank you, Liz. The Law School is proud to partner with the Department of Philosophy on this wonderful opportunity to bring Justice Ginsburg to Ann Arbor, and grateful to the Tanner Trustees who made her visit possible. It’s an honor to welcome all of you today on behalf of the Law School. The visit of a Supreme Court Justice is of course a major event for the campus as evidenced by the long lines of law students, philosophy students, other university students, staff, faculty, and members of the Ann Arbor community wanting tickets to this event. What makes today extra special for the Law School is that five members of our faculty once served as law clerks for Justice Ginsburg. Those five colleagues are Professors Kate Andrias, Sam Bagenstos, Scott Hershovitz, Richard Primus and Margo Schlanger. It is wonderful to have two of them, Kate Andrias and Scott Hershovitz, moderating today’s conversation. It’s my pleasure to introduce them. Kate Andrias is an Assistant Professor of Law who teaches and writes in the areas of Constitutional and Administrative Law, Labor Law and the Law of Democracy. Prior to joining our faculty in 2013, she served as Special Assistant and Associate Counsel to President Obama and the Chief of Staff of the White House Counsel’s office. Scott Hershovitz is a Professor of Law and a Professor of Philosophy who also directs the Law and Ethics Program. Scott teaches and writes about Jurisprudence and Tort Law. Prior to coming to Michigan in 2007, he clerked for Justice Ginsburg. Please join me in welcoming Professor Kate Andrias and Professor Scott Hershovitz. It is now my pleasure to introduce the 14th President of the University of Michigan. President Schlissel began his leadership of our great university in July 2014. Previously, he was Provost at Brown University. And prior to that, he was a Biochemistry Professor at the University of California, Berkeley. In his first seven months in office, President Schlissel has established a reputation for being a careful listener and a thoughtful decision maker who is strongly committed to keeping Michigan accessible to ideas and people from all walks of life. Much like the associate justice he is about to introduce. Please join me in welcoming President Mark Schlissel. >>Mark Schlissel: Good morning, everybody. I would like to thank Dean West for his kind introduction, but more importantly, for his leadership in ensuring that Michigan Law continues to be one of our nation’s finest Law Schools. I also thank Dr. Anderson and her colleagues in the Department of Philosophy for everything they do to make the Tanner Lecture a very special event at Michigan each year. Thanks to their collective efforts, we have this spectacular privilege today of hearing from an extraordinary scholar and national heroine. Justice Ruth Bader Ginsburg is one of history’s most important legal pioneers and advocates for gender equality and justice for all. When she began Law School in 1956, she was one of just nine women in an entering class of more than 500 and was the mother of a one-year-old daughter. Despite graduating at the top of her class, Justice Ginsburg did not receive a single job offer. In the years since, her remarkable work as an attorney, judge, and now justice on our highest court, has opened doors for women in all professions. Throughout her brilliant career, Justice Ginsburg has been at the forefront of great legal great legal change in America. During the 1970s she appeared before the Supreme Court representing the Women’s Rights Project of the ACLU to argue some of the most significant women’s rights cases in history. When President Clinton appointed Justice Ginsburg to the high court, he characterized her as a person who, and I quote, “Repeatedly stood for the individual, the person less well-off, the outsider in society, and he has given those people greater hope by telling them they had a place in our legal system.” Justice Ginsburg cited as her guiding principles three ideas that also inspired her predecessors Sandra Day O’Connor and Oliver Wendell Holmes. These principles are, first, intellectual honesty about available policy choices; second, disciplined self-restraint in respecting the majority’s policy choice; and third, principled commitment to defense and individual autonomy even in the face of majority action. Justice Ginsburg has steadfastly held to those principles during her time on the Court. She has written influential opinions on cases that have shaped American society including abortion rights, Bush versus Gore, and the Affordable Care Act. Court observers have long praised her ability to engage civilly with her fellow justices on even the most contentious matters during a time when some would say we are more politically polarized than ever as a nation. Justice Ginsburg’s Michigan connections are also very strong. In 2001, the u of M was proud to confer upon her an honorary Doctor of Laws. In 2003, she wrote opinions in the Gratz and Grutter affirmative action cases. And she has inspired our students, faculty, and staff alike. One example is Susanne-Baer, a UM alumna, 2014 honorary degree recipient, and justice on the Federal Constitutional Court in Germany, which is that nation’s highest court. She describes Justice Ginsburg as, and I quote once again, “Living proof that individuals with courage and the right views, mainly views based on rights rather than ideology, may change things.” Friends and colleagues please help me welcome back to the University of Michigan our 2015 Tanner Lecturer, Justice Ruth Bader Ginsburg. >>Justice Ginsburg: Thank you! Please be seated, be seated. Please be seated so we can get started. >>Kate Andrias: Justice, thank you so much for joining us this morning. We’ve combined questions that were submitted online with some of our own. And to start, we want to talk about how you become a lawyer. As President Schlissel mentioned, when you enrolled at Harvard Law School in 1956 you were one of nine women in a class of about 500. What made you decide to go to law school when so few women did? >>Justice Ginsburg: That question has an answer they come in two parts. First part is when I was an undergraduate at Cornell University it was not the best of times for our country. This was the early ‘50s. Senator Joseph McCarthy from Wisconsin was holding sway. He was a man who saw a communist in every corner. There were people being hauled before the House Un-American activities committee and the Senate Internal Security Committee. They were asked questions about their affiliations with some socialist organizations in the ‘30s. The professor for whom I worked as a research assistant, Professor Robert (00:13:47) who taught Constitutional Law wanted me to appreciate that our country was straying from its most basic values but there were lawyers standing up for people in the entertainment industry who were blacklisted, academics, and reminding our congress we have a First Amendment that says we have a right to think for ourselves and not as “Big Brother” thinks we should and we have a Fifth Amendment that protects us against self-incrimination. The idea was that a lawyer is the profession, but it is also something that arms you with the skill to help things make things a little better for other people. So that was one tug. The other was my dear spouse, both of knew Martin. We decided that whatever we would do in our post-college years, we would do it together. So thank goodness medicine was eliminated because Marty’s golf practice interfered with science labs. And then there was choice between business school and law school. In those ancient days, the Harvard Business School did not admit women. The Law School admitted women for the first time, ‘50-‘51 was the first class that included, that entering class. So, business school was eliminated, and that left Law School. Now, I have to say my family had some reservations about this because there weren’t many legal employers who were willing to take on a woman. But Marty and I married a week after I graduated from Cornell, and then my family, their view was, “If she wants to be a lawyer, let her try. If she doesn’t succeed, she’ll have a man to support her. >>Scott Hershovitz: So, Justice let’s talk a little bit about your early career as a lawyer. Everyone knows that you are an advocate for gender equality, but before that, you were a professor of procedure. What got you in student procedure? >>Justice Ginsburg: The very first class I ever took at the Harvard law School, I had a great teacher, Benjamin Kaplan. He was a man skilled in the Socratic Method but he never used it to embarrass or humiliate students. He would sometimes take an answer that the student gave and rephrase it so it sounded brilliant. He was a great teacher. And in that class was a young man, his name was Tony Lewis. He was a Nieman Fellow, he was a well-known journalist. He was the Supreme Court reporter for the New York Times for many years. And in the first class, he answered every question just right. I decided that I would speak in class as much as Tony Lewis. So it was a combination of my teacher, Benjamin Kaplan, and Tony Lewis. And then I was fortunate enough when I started in law teaching in 1963 at Rutgers Law School in Newark. Rutgers had lost their principal procedure person, Clyde Ferguson. He left to become Dean of the Howard Law School. Rutgers searched for an African American male to replace him. They failed in that quest, so the next best thing was a woman. And that’s how I got my first teaching job. >>Kate Andrias: How did you transition to work on gender equality issues? >>Justice Ginsburg: From civil procedure? Well, there were two magnets. One, my students. This started about 1969. The students wanted to have a course on women and the law. Such a course had been started an NYU and at Georgetown. So I went to the library and in the space of a month, I read everything that have been written about women’s status under the law. Now, that was no mean feat because there was precious little written. I think less than today would be generated in a couple of months. So I started the course on women and the law. And the other tug, new complainants were coming to the ACLU. I have signed up as a volunteer lawyer for the New Jersey affiliate of the ACLU. To give you an example of the new complainants, one group was pregnant schoolteachers who were put on what was euphemistically called “maternity leave” rather early in their pregnancy. It was a euphemism because it was unpaid leave and you had no guaranteed right of return. If the school district wanted you back, they would call you. One the excuses given for that practice, “We don‘t want the children to think their teacher has swallowed a watermelon.” So that was one group. These are women whose position was. We are ready, willing, and able to work. There’s no reason why we should not be allowed to continue.” Another group who were blue-collar women who wanted to get health insurance for their family through their place of employment, but employers gave family coverage only to male workers because women were considered secondary wage earners, “pin money earners.” The man was the one who was the head of the family and takes care of family coverage. That was new. And then on the Rutgers campus itself, the undergraduate college was all male. There was a smaller very fine women’s college, but the state was providing education to many more boys than girls. So those were the three kinds of cases that were coming into the ACLU and the Legal Director in Newark called on me to see if I could handle them. I wasn’t the initiator. It was my students pushing me and the new complainants, women who until then just accepted the way things were and then, because the Women’s Movement was reviving all over the world, decided they shouldn’t simply submit to the way things were, that they should be part of making things the way they should be. >>Scott Hershovitz: I was wondering if you could tell us more about your work with ACLU Women’s Rights Project, what your legal strategy was. Sometimes people will compare you to Thurgood Marshall, they say that you were the Thurgood Marshall of the Women’s Rights Movement. I am wondering what you make of the comparison and whether the legal strategies were similar or different. >>Justice Ginsburg: He was a true inspiration for the right way to do it. People know about Brown v. Board, but many people don’t know about all the building blocks he had emplaced before he took on legally-enforced separation of the races in public schools. It was a law school case, a couple of university cases. By the time he brought Brown v. Board, it seemed that it was inevitable that the Court would move in that direction. But he didn’t give it them all in one giant step, so that step-by-step approach. But I always feel uneasy when people ask me this question because Thurgood Marshall was a man, he was a model of courage, his life was constantly in danger when he went to a small town down South to represent someone who is charged with a crime that probably he didn’t commit. My life was never in danger. >>Kate Andrias: Can you tell us more about some of the cases you’ve brought and whether there is one case in particular that you think of as your most important victory? >>Justice Ginsburg: Perhaps I should describe the turning point case, review it first. And as a preface to that, to explain that until 1971 the Supreme Court never saw a gender classification that it didn’t like, that it felt was unconstitutional. For this audience, I will tell you about the case called Goesaert against Cleary. The case was brought by a woman who owned a tavern and her daughter was her bartender. The State of Michigan had recently passed the law that said women couldn’t tend bar unless the woman was the wife or the daughter of the bar owner. Mother Goesaert was being put out of business by that law. The Supreme Court, when they got the case said, “Bars can be pretty unpleasant places and the state legitimately protects women against the sometimes foul atmosphere in taverns.” They never commented on the absences of any statute by that precluded women from being barmaids who is actually bringing the drinks to the drunks at the table. Those women weren’t sheltered by a bar that they were standing behind. Nevertheless, the Supreme Court upheld that Michigan Law. So then, it’s 1971 and Sally Reed’s case. So Sally was a woman from Boise, Idaho. She and her husband had a son. The couple divorced. And when the child was of “tender years,” Sally was given custody. When the boy reached his teens and needed to be prepared for a man’s world, the father applied for custody and Sally opposed that. She thought the father would be not a very good influence on the son. And she turned out to be right. This boy become severely depressed and one day took out one of his father’s many guns and killed himself. Sally wanted to be appointed administrator of his estate. Not for any monetary reasons. There was very little, there was a small bank account, a guitar, a record collection, and that was about it. Her former husband applied some weeks later and Sally assumed that she would get appointment because she applied first. The probate court judge told her, “I’m very sorry about this, but the law settles the matter for me.” It reads, “As between person equally entitled to administer a decedent’s estate, males must be preferred to females. It was the perfect turning point case. Sally Reed was excluded arbitrarily. Her case was in no sense made-up. Sally Reed was an everyday woman. The main thing about all the cases in the ‘70s was that we never had to look for plaintiffs, they were all out there. And so, from the Goesaert against Cleary case, that was 1948, the next one was during the years of the “Liberal Warren Court” when a woman, Gwendolyn Hoyt, was charged with murdering her philandering, abusive husband. It was a freak accident. He had humiliated her to the breaking point. She saw her young son’s baseball bat in the corner of the room, took it, and with all her might, hit him over head, he fell against the floor. End of their altercation, beginning of the murder prosecution. Gwendolyn Hoyt had the idea that if women were on her jury, they might better understand her state of mind. Not that they would acquit her, but they might her find her guilty of the lesser offense of manslaughter rather than murder. But Hillsborough County, Florida where she lived didn’t put women on the jury rolls. They had a system that they thought was pure favor women. They weren’t on a roll to begin with but any woman who wanted to serve go down to the clerk’s office and sign up. Well you could imagine how many people, male or female, would sign up voluntarily if they weren’t compelled to serve. Anyway, she was convicted of murder by an all-male jury. That case went to the Warren Court and the Warren Court said, “This exclusion of women from the jury roles makes perfect sense, because after all, women are the center of home and family life and they shouldn’t be distracted from their homecare responsibilities.” But 10 years later, there was this enormous change that Warren Burger was then the Chief Justice. He did not have the liberal reputation that Earl Warren did and yet the court reacted unanimously to Sally Reed’s case. We knew from that unanimous decision that the court was ready to catch up where the change had already occurred in society, that women were not content with being pigeonhole into one track. They wanted to have opportunities to do whatever the God-given talents enable them to do. So in the course of the ‘70s laws, both state laws like Michigan Bartender Law and federal laws that had gender-based differentials. Almost all of them were gone in that decade. So the offer therefore was to make sure that public opinion was on our side. Next, to try to get the legislature to change and if that failed, you could bring the case in court. So I have described Sally Reed’s case. Let me tell you about Stephen Wiesenfeld’s case because it’s probably the best illustration of what's wrong with pigeonholing people, stereotyping. Stephen Wiesenfeld’s wife was a math teacher in high school. She had a very healthy pregnancy. She was in class into the ninth month. When they went to the hospital for their son to be born, the doctor came out and told Steven, “You have a healthy baby boy, but your wife died of an embolism.” Steven vowed that he would not work full time until his child was in school full time and he could just about make it with the Social Security benefits for a child left with a sole-surviving parent plus the earnings limit, how much it could make on top of the Social Security benefits. He went to the Social Security office and asked for an application for child and care benefits and was told his mother’s benefits are not available to fathers. The law was that a sole-surviving parent who was female would get the benefits for caring for a child but not the sole-surviving male parent. And that case was argued as first of all discrimination against the woman as worker. Paula Wiesenfeld paid the same Social Security taxes as her male coworker, but when she died, her family didn’t get the same protection. Stephen Wiesenfeld was disadvantaged as a parent because he wouldn’t have the opportunity to work only part time. He would have to work full time and not be a personal caretaker for his child. So the majority recognized that this really was discrimination started with the woman. A couple of them thought it was discrimination against the male as parent and one who later was by chief, he was then Justice Rehnquist said that this is totally arbitrary from the point of view of the baby. Why should the baby have the care of a parent, a sole-surviving parent only if she is female and not male? I think it was the only equal protection case that the chief have ever voted for striking down the law. Oh, I should say something about striking down the law because in this number of the cases, the effort certainly wasn’t to strike down the law. We didn’t want to take away mother’s benefits. Instead, the view was this law is imperfect. Congress wanted mothers to get the benefits. It’s the last thing in the world congress would want, is to remove the benefits from women. So to perfect the law, to make it constitutional, we have to put in the current law and say, “Sole-surviving parent, male or female.” That was a big change in the law. There were many law teachers who said, “You can't do that.” The court can strike down the law and then the legislature can be enacted. The view that the court eventually accepted is if there is a deficiency in the stat sheet. Then the court has to think supposed the legislature knew that what have passed was not permissible, what would it rather do? Would it rather have the law stricken or would it rather have the law extended to the class that had been left out unconstitutionally. So after Stephen Wiesenfeld’s cases, there were a series of other Social Security cases on behalf of husbands and widowers, cases that I call “Wiesenfeld without the baby.” The final case in that was unemployment compensation. Therefore, it was unemployed parent. It was a social welfare benefit when the parent was unemployed. When congress learned that some women were signing up as the unemployed parent, they change it to unemployed fathers. This last case was in 1979. Men who had been at work so long that they didn’t qualify as unemployed; women who didn’t and then the Supreme Court in that case said, “Congress changed it to unemployed fathers. They had it right the first time. It’s unemployed parent.” In that case, the majority explained what I just told you about. If the law is imperfect, sometimes the appropriate cure is not to strike it down but to extend it to the left out people. >>Scott Hershovitz: So let’s talk a little bit about your time at the court. The opinion that you maybe best known for is United States v. Virginia. Can you tell us a little bit about the VMI case and how it relates to the cases that you’ve just been telling us about? >>Justice Ginsburg: I think most people know that the Virginia Military Institute is a state school. It offers a program that is very helpful to students, not that they all became soldiers. Only about 15% of VMI graduates go into the military but they had an old boy’s network where people who had possessions in business and commerce would help the graduates of VMI along their way, but Virginia didn’t offer anything like that for the women. The interesting thing about VMI is that the plaintiff was the United States of America. Not too many years before, there had been litigation against United States for excluding women from West Point, from Minneapolis, from the Air Force Academy. Those were cases litigated on behalf of women who wanted to go to those schools. Not too long into the litigation, the government decided, would rather switch and fight and open up the military academies to women. By the time we’ve got to VMI, it was the United States arguing on behalf of the women who were already willing and able to go to VMI. Some people ask me, “Why would woman want to go to VMI and get that kind of very rigorous military training?” I said, “Well, I wouldn’t want too. Perhaps you wouldn’t want too. Perhaps the gentlemen over there wouldn’t want to, but there are some women who want to and have everything it takes, all qualifications to succeed, why shouldn’t they have that opportunity.” So that was the VMI case and it resulted in a seven to one judgment, only one dissenter. Justice Scalia was the soul. My husband commented, “Ruth, it took you 20 years to win the Vorchheimer's case. What was the Vorchheimer's case? It was a girl in Philadelphia. Philadelphia had two public high schools for gifted children; their names told the story. One was called Central that was all boys. The other was called Girl’s High and this girl Susan Vorchheimer wanted to go to Central because it had better math and science facilities, incomparably better athletic facilities. She won in the district court, in the federal trial court. She lost in the court of appeals 2-1 so that federal judges did 2-2 at that point. In the Supreme Court, the court one person was reduced so the court was evenly divided 4-4 and when that happens, the court is unable to make a decision instead it just automatically affirms the decision of the Court Of Appeals. So the federal courts, the judges were evenly divided but that mended to Third Circuit judgment then Central High could remain all male students. Years later, Pennsylvania court under Pennsylvania’s Equal Rights Amendment held that Central could not remain all male. >>Kate Andrias: So in recent years, you’ve gotten more attention for your dissents than your majority opinions. Which of your dissents do you think is the most important? >>Justice Ginsburg: The most important is I can pick out just one -- some of you know the background of the 1965 law, a very important law that congress renewed periodically. States and certain localities in the battle days had barred African-Americans from voting and the federal law said, “If you want to change any of your voting laws, you have to pre-clear it either with the justice department or with the three-judge federal court in the District of Columbia. The formula was challenged as outdated. Congress by an overwhelming majority, both sides of the aisle, had renewed the Voting Rights Act with the same formula. The court said the formula is outdating. Everyone knew it was impossible but the congress was then setting to change it so major, major civil rights law was effectively made unconstitutional. And my view is I viewed it as a “who decides” case. The legislature had overwhelmingly said the Voting Rights Act should be extended. Should nine unelected judges trump that decision of the legislative branch? My answer was “no”. The members of the political branch probably know more about voting, elections, and the unelected Supreme Court justices’ duty. So I would have preserved the Voting Rights Act. The problem with changing the formula is what senator, what representative was going to stand up and say, “My State is still discriminating.” Of course, it’d still be on the on the list. So that’s the Voting Rights Act. I have to tell you that sometimes, a dissent can have an immediate impact and my case, my favorite example is the Lilly Ledbetter case. Lilly worked for Goodyear Tire plant. She was an Area Manager. She was hired in the 1970s, the first woman to hold such a job. Many years later, she found in her mailbox at the plant a slip of paper. It had a series of numbers, but the numbers were the pay received by other Area Managers. Lilly’s name, although she worked there for well over a decade, was on the very bottom. The most junior person, someone she had helped train earned more than she did. So she decided she had a good Title VII suit to bring. Title VII is a principle of anti-discrimination in employment statute. It says employers can't discriminate on the grounds of race, religion, national origin or sex. Lily went in the trial court. She got a substantial verdict but the Supreme Court said she sued too late. Title VII says, “You have to complain within 180 days of the discriminatory incident,” and she’s complaining about discrimination that began at the end of the ‘70s, so she’s away out of time. What I tried to explain in my dissent was that women who take a job up to then has been done mostly by men, they don’t want to be seen as complainers. They don’t want to rock the boat. Besides, supposedly she’d complained early on -- well, first, you would have to know because salary figures weren’t given that. Second, the employer would almost certainly defend by saying, “It has nothing to do with Lily being a woman. She just doesn’t do the job as well as the guys,” but now she’s been working there over a decade and she has gotten good performance ratings through the years. So the defense that she doesn’t do the job as well is no longer available. Now, she has a winnable case. Her view was that this discrimination is repeated every month. Every paycheck reflects that differential so she should -- if you interpret Title VII properly, she should have 180 days from each paycheck to complain. (00:49:31) amended Title VII to adopt that paycheck theory that the clock started to run anew with every paycheck that reflected the discriminatory differential. I always hope that that’s going to be the result of the dissent and I think most of my dissents will be the law someday. >>Scott Hershovitz: Justice, two of your colleagues have given tenure lectures before. Justice Scalia took the opportunity to defend originalism and Justice Breyer defended his view of active liberty and said that the constitution should be interpreted to promote democratic engagement. What’s your approach to the constitution? Do you think of yourself as having an -ism? >>Justice Ginsburg: Well, my approach to the constitution is influenced by the first three words, we the people. If we go back to 1787, who were “we, the people”? Very select group. They were white property owning men and I think the genius of our country is that now over the span of more than two centuries, this notion of who counts among “we the people” has grown. So once Native Americans were left out, people held inhuman bandage. Women until 1920 were not part of the political community. New comers to our shores, “we the people” today is a much more embracive concept than it was in 1787. But I think that the founders probably expected that that’s the way it would be and should be that these grand ideas that they planted like due process law would be adjusted to govern society that existed in a particular time. To take a very simple example, the Eight Amendment; cruel and unusual punishment. Many people visit Williamsburg, Virginia and they visit the jail and they see these various devices that were used to punish people like putting them in a stack. We don’t allow that kind of thing today. We don’t allow 20 lashes. Cruel and unusual punishments mean something different today than it meant originally. But I can maybe give you a summary view of the difference between some of my approach and Scalia’s and it is illustrated by a new opera that will have its world premier on July 11th in Castleton, Virginia. The opera is called Scalia Ginsburg and it opens with Scalia’s rage aria. This is for those who know music. This is taken from Handel. Handel is long, long dead so there are no copyright problems. The composer is a young man, Derrick Wang, and it’s his marvelously invented piece. Anyway, so Scalia’s rage aria goes like this. “The justices are blind. How can they possibly spout this? The Constitution says absolutely nothing about this.” I answered him that he’s searching for bright line solutions to problems that don’t have easy answers, but the great thing about our Constitution is like our society, it can evolve, and then the singer begins, “Let it go. Let it go.” I had to tell you this central scene which I like much better than my colleague does is in -- anyway, Justice Scalia is locked up in a dark room. He’s being punished for excessive dissenting and I enter to rescue him. I enter through a glass ceiling. >>Kate Andrias: Justice, the court obviously plays an important role in interpreting the Constitution. You’ve said that the Supreme Court went too far and too fast in Roe versus Wade. What do you mean by that? >>Justice Ginsburg: Roe v. Wade is a 1973 decision. At the time of Roe, abortion law was in fluxed all over the country. Some states, including my home state, New York, California, Alaska, Hawaii allowed a woman access to an abortion in the first trimester if that was her choice. Number of states had moved to the middle where there were grounds for abortion; rape, incest, danger to the woman’s health. Texas had the most extreme law in the nation, no abortion unless it was necessary to save the woman’s life; her health wasn’t good enough, only her life. So I thought that the Supreme Court would strike down that most extreme law and then there would be at continuing dialog in the country, state legislature would react to the Court’s decision, but instead the court wrote a decision that made every law, even the most liberal unconstitutional in one fell swoop. I spoke about Brown v. Board and Thurgood Marshall putting the building blocks in place. The Women’s Rights Project started with cases like Sally Reed and it built up from there. This was a stunning opinion. By the way, it was not really controversial at that time where we waited 72 decisions. There are only two dissenters, Justice Rehnquist and Justice White. My thought was that if the Court had been more modest, then the change would continue to move in the direction which it was already moving. Instead, there was one target for those who opposed a woman’s free choice and that one target was Roe v. Wade. A decision by the unelected justices, it was much easier to target that decision than to be fighting in the trendiest, by state legislature. So that was unquestionably the right judgment was reached in Roe but I could decide then on two grounds. One; this criticism was best expressed by a great constitutional law scholar (00:58:47). He said, “The problem with Roe v. Wade is like a little boy who gets trodden out at his parents’ dinner party and to impress the guests he’s asked to spell banana.” He said, “Well, I know how to spell banana. I just don’t know where to stop.” That’s what I saw as the problem with the decision in Roe v. Wade. >>Scott Hershovitz: Justice, after Justice Stevens left the bench. He published a book in which he proposed six amendments to our constitution, do you have amendments you’d like to see added? >>Justice Ginsburg: Well, I have one, beyond all others and that’s the Equal Rights Amendment and I'm sometimes asked, “Well, isn’t the Equal Protection Clause gone enough?” My answer is no. We think of this historically. There was a woman, Virginia Minor, after the Fourteenth Amendment was adopted, she wanted to vote. And she said, “(01:00:14) any state denied to any person the equal protection of the laws, so I am a person and I am a citizen.” The Supreme Court answered her plea by saying, “Of course you’re a person and you are a citizen, but so too are children.” And who would suggest that children should have the right to vote? That was 6-back in the 1870s. The Post-Civil War Amendments had one purpose: to end the legacy of slavery. At the time the Fourteenth Amendment was adopted, there were many states that still had their own restrictions on married women. The woman who married longs to write the contract, to sue and be sued in her own name, to own property in her own right, and the Congress that put out the Thirteenth, Fourteenth, and Fifteenth Amendment had no intention of changing any of that. As I said just a while ago, the idea of equality is much broader than the initial impact of it. So perhaps today, under the Equal Protection Clause, the rights to the Equal Rights Amendment would have secured most of them. The result might be achieved under the Equal Protection Clause, but every constitution in the world written after World War II has a statement to the effect of women and men, of persons of equal citizenship stature. I would like to take my constitution out and show it to my three granddaughters and say, “This is a value of our society just like free speech, freedom of religion, the equality of men and women. Their equal citizenship stature is a basic tenant of our society.” And for that reason, I would like to see that statement in our constitution just as it is in every Post-World War II Constitution. >>Kate Andrias: Could you tell us what the Supreme Court decision is that you would most like to see overruled? >>Justice Ginsburg: In? >>Kate Andrias: What Supreme Court decision you would most like to see overruled? >>Justice Ginsburg: I mentioned the Voting Rights Act decision, but I would have to say, first, if I had any decision that I would change, it would be Citizens United. I’m very glad, very proud to be a citizen of the USA, but when I go abroad and people ask, “How can it be that you allow unlimited campaign contributions? Certainly, the office holder is going to be beholding to the big money person who finances his or her campaign. Other democratic nations have very severe limits on private financing of candidates for public office.” And I said, “Well, in the United States, you have all the democracy money can buy.” I think there will come a time, and maybe not too far down the road when the people are disgusted with this, and then the pendulum will swing the other way. >>Scott Hershovitz: So Supreme Court Justices were the only senior officials in our government who decide for themselves when to retire, and some people think that instead of having that system, which you have a system of fixed terms, which system do you think is better? >>Justice Ginsburg: The most important thing is that you preserve the independence of the judges. So some systems, like Germany, will have a long -- I think their term is either 12 or 14 years, 14 years nonrenewable. Nonrenewable, so the judge won’t worry about a reappointment, how a vote on a particular case would affect reappointment. That’s the way they guarantee the independence of the judges. In our system, Article III of the Constitution says that judges, all federal judges, not just Supreme Court justices, they shall hold their office during the behavior. And so I might speculate about other systems, but the truth is that our constitution is powerfully hard to amend. I know that as a citizen of the District of Columbia, that would like to end taxation without representation and the failed effort the first time around to ratify the Equal Rights Amendment. So we have a constitution that’s very difficult to amend, and I don’t think life changer for federal judges is going to be something that really exercises the public. Of course, I’m terribly bias and prejudice on this subject, but you can think of Justice Stevens stepped down when he was 90, and Scott already mentioned that since then he’s written a couple of books. I know that in his last year on the court, the year he turned 90, he was no slower than he was when I was a new justice. He was still the fastest justice responding to an opinion that you circulated. So it’s a decision an individual has to make. I have said that as long I can do the job full steam, I will stay in it. But when I begin to slip, as inevitably I will, when that happens, that will be the time for me to go. >>Kate Andrias: So as we’ve talked about, you focused a lot of your career on the rights of women. Your dissent in Hobby Lobby points out one way in which women are still disfavored by the law. Could you talk a little bit about that dissent in other areas of the law where women are still at disadvantage? >>Justice Ginsburg: The Hobby Lobby was decided under a law called Religious Freedom Restoration Act. From the majority’s point of view, they were champion, the right of the owners of the Hobby Lobby to practice their religion, and I had no doubt about the genuineness of their religious belief and their right to practice their own religion. But what they didn’t have the right to do was to force their religious belief on a workforce that didn’t share that view. I used in my dissenting opinion and expression by a great law teacher, Zechariah Chafee, when he was talking about freedom of expression. He said, “I have a right to swing my arm until it hits the other fellow’s nose,” and that’s what I have to stop. >>Kate Andrias: So as we’ve talked about, there’s been lots of positive change for women, for people of color, for gays and lesbians over the course your career and we hope perhaps more coming. But lower-income women still face a host of challenges, and the situation for lower-income Americans, in general, is getting worse. We were wondering if you think there’s a role for a law and judges in addressing economic inequality, or are those issues better handled through politics? >>Justice Ginsburg: All right. A court doesn’t have the power of the purse. So if you want a spending program, that can’t be created by a court. So the major problems, I think, must be solved legislatively, to raise the money through taxes for social programs, and to create those programs. I mean, we were, until very recently, the only democratic industrialized nation that didn’t have universal healthcare. That’s not something that the court can adopt. A court can say yes or no, or it’s been extendable in the way I described, but it can’t create the kind of programs that would be needed if we are seriously to have a handle on the economic inequality that exists in the country. There are modern constitutions that guarantee economic and social rights, as well as political rights, but rights of that nature are aspirational. And ever since Marbury v. Madison, we have treated our constitution as not an aspirational document, but as law on the ground, the highest law that we have that will trump other laws. So we don’t have economic and social rights in our constitution. If we did, there’s no way a court is going to provide a decent shelter for every person, enough to eat, that those programs have to be adopted by the legislature. >>Kate Andrias: So we want to just switch to talk a little bit about family life. You have two new female colleagues, Justice Kagan and Justice Sotomayor, and many people are struck by the fact that neither one is married or has had children. Do you think that having a family makes it harder for women to reach the highest levels of government or the legal profession? And what could we do about that? >>Justice Ginsburg: Whenever that comment is made, the woman has to give up her family life and she’s going to rise to the top of the tree in her profession. What happened to Justice O’Connor who raised three sons, or my colleague on the D.C. Circuit, Pat Wald, who has five children? Well, I attribute my success largely to my partner in life, my husband, but also to my children. I think I was a very good law student because the law school wasn’t the only part of my life; that is I worked hard, I attended all of my classes and studied in the library in the afternoon, but four o’clock was children’s hour. My life was concentrated on studies, but then I had this respite, this time with my daughter until she went to sleep, and then I went back to the books. Each part of my life was a respite from the other, and I wasn’t so overwhelmed about law, law school, or study being the only thing in life that mattered. I remember how nervous I was about taking practice exams by first year. Harvard had a cruel system. There were no exams until the very end of the year, but there were these practice exams in January or February. One of those unforgettable moments in life, I was at the kitchen table studying, and my daughter crawled in. She had a mouth full of moth balls. I had a drawer with sweaters. And so we rushed her to the Cambridge City Hospital. I was outside listening to her scream when her stomach was being pumped. Thank goodness she hadn’t actually ingested anything, but at that moment, I said, “These practice exams really aren’t that important.” And so I had a more relaxed attitude toward them. >>Scott Hershovitz: So Justice, one of your law clerks recently wrote an article in the Atlantic about the advice you gave him about being a stay-at-home dad. I think a lot of people find it natural to look to you for advice because you and Marty had such a wonderful relationship. You both had extraordinary careers and you raised two successful children. So we’re wondering what advice do you have for the rest of us? >>Justice Ginsburg: I have to say as far as children go, more than little bit of luck is involved in raising a child who has a happy, satisfying adulthood as my children do. My children are 10 years apart, so with my daughter, I was overcompensating dreadfully. I took her to every children show. I took her to the Amato Opera when she was four years old, and that was pushing things a bit because she got up and then -- there’s a part I was singing with (01:17:03), and at the top of her lungs, she shouted out -- because that’s how the soprano sounded to her. I quickly ushered her out. We waited four more years, and then we went to the Amato and it was just the right opera, it was Così fan tutte in an English translation. So I did overcompensate with Jane. By the time my son came along, my husband and I, were both very busy with our careers, so he didn’t have the same intense education every weekend. But he turned out. With my daughter, she never had a meal when there wasn’t something beautiful playing, in the old days, but (01:18:03) playing records. My son, who has a passion for music, he just came by it naturally. >>Scott Hershovitz: So in the year since Kate and I worked for you, I think it’s safe to say you’ve achieved a new level of notoriety. Can you tell us a little bit about what it’s like to be the Notorious R.B.G.? >>Justice Ginsburg: Well, when this started and my law clerks had to tell me about Notorious B.I.G. He’s no longer alive, but we do have in common having grown up at Brooklyn. This Notorious R.B.G. was started by a student at NYU Law School. I think it’s wonderfully amusing. Well, I saw a t-shirt, and then these t-shirts that the lady is saying that it’s fake, it’s a tattoo. The creators of Notorious R.B.G. came to court and they sat in at a session. They have some serious things on it too. As the Clinton Library was releasing papers, they picked up the papers -- leading up to my nomination by the President, and then revealing the things I didn’t know. It’s going to be a book. These are very speedy people. Next fall, they’re going to have a book, Notorious R.B.G., and they’re interviewed by personal trainer. They asked him, “Well, what does she do?” and he said, “Well, I’ll tell you and you do it.” They were intimidated by it. >>Scott Hershovitz: So Justice, we’re just about out of time, but there are a lot of young people on the audience and would be interested to give you an opportunity to give them advice, advice for young women and advice for young men, advice for everybody. >>Justice Ginsburg: I’ve loved the law. I’ve loved everything that I’ve done in it. But one thing I know is that if I had just been in the law business -- oh actually, I’ll tell you this story that Justice Sandra and I shared. She got our first job in the law. She was at the top of our class in Stanford, but like me, there were no job offers. She volunteered to work for a county attorney, free for four months, and then said, “If you think I’m worth after four months, you can put me on the payroll.” That’s how she got her start. I was tremendously fortunate to have been alive and a lawyer when this movement became alive and I had a talent that could help move that. It’s also changed along. I’ve gotten tremendous satisfaction from the things that I have done that I was not paid to do. And if you think of yourself as a professional, well, you’re not just going to get a job so you can turn over a buck. If you do that and you’re kind of like a plumber, you got a skill and you can earn a living from it. But if you think of yourself as a true professional armed with a skill that can help others who are less fortunate, whatever it is that’s your passion, whether it’s the environment, whether it’s helping new comers to our show, whatever it is, if you can work to help repair chairs in your local community to make things a little better for people who are not as fortunate as you are, that will give you a satisfaction that no patriot could ever give you. And I think lawyers have an obligation to serve the public in that way. After all, lawyers have a monopoly on certain services, and these in exchange for that privilege, they ought to conceive of themselves as servants of the people. So that would be my advice to you. Pursue whatever it is your passion in addition to the job for which you get paid. >>Scott Hershovitz: Justice, thanks so much for coming today. It was such a special privilege for all of us, and we’re glad you trekked out to Michigan in the dead of winter to share your wisdom with us this morning. Thank you. >>Justice Ginsburg: Thank you. Thank you so much.