By Frank Weir
Legal News
Some in the audience that packed Hill Auditorium in Ann Arbor last Friday to hear Supreme Court Justice Ruth Bader Ginsburg may have been surprised by her comments about Roe v. Wade, the landmark decision that in effect legalized abortion.
In a freewheeling, but casual, Q/A format, Ginsburg offered comments about how she began in the law, her favorite dissents and favorite majority decisions, among other observations.
But as a champion and pioneer of gender equality law and women’s rights, Ginsburg may have surprised some in the enthusiastic audience, dominated by University of Michigan students, when she noted that she thought Roe v. Wade went “too fast.”
“I thought the Supreme Court would strike down the most extreme law, that was in Texas, and then there would be a continuing dialogue around the country, and individual states would react to the Court’s decision,” she recalled. “But instead, the Court made all laws unconstitutional, even the most liberal. It was a stunning opinion with only two dissents.
“My thought was that if the Court had been more modest, then change would continue in a direction it was already moving. But instead, we now have one target for those who oppose a woman’s freedom of choice and that one target is Roe v. Wade.”
She added that the far-reaching decision was made, of course, by justices who are not elected.
“It is easier for opponents to target this one case than it would have been to fight in the trenches of state legislatures. The decision in Roe reminds me of an old joke: a little boy gets trotted out at her parents’ dinner party to spell banana. ‘I know how to spell banana,’ he says. ‘I just don’t know where to stop.’ That’s what I saw as the problem with the Court’s decision in Roe.”
The appearance by Ginsburg was billed as the “2015 Tanner Lecture on Human Values, A Conversation with Ruth Bader Ginsburg.” The justice was introduced by new U-M President Mark Schlissel after greetings and salutations by Elizabeth Anderson, department chair of the university’s Philosophy Department, and Mark West, dean of the U-M Law School.
Five of Justice Ginsburg’s former clerks are on the Law School staff, including Kate Andrias and Scott Hershovitz, who sat with Ginsburg on stage and posed questions. A sampling:
Why did you choose law school? “This was the McCarthy era and I saw lawyers who stood up for people. The idea was being a lawyer was a profession, but also it was something that armed you with skills to make things a little better for other people. That was one reason I went to law school,” she said, noting that it also allowed her to attend Harvard Law School with her husband, Martin.
“At that time Harvard Business School did not admit women but their law school did. I had some reservations about this because not many legal employers were willing to take on a woman. We married a week after I graduated from Cornell and he thought, ‘Let her try... if it doesn’t succeed there’s a man to support her,’” she said to audience laughter.
Why did you transition from being a civil procedure expert to gender equality litigation? “There were two reasons, one being my students. It was 1969 and I was teaching at Rutgers. Students wanted a course on women in the law. I went to the library and read everything about women’s status under the law. There was precious little. So I started a course.”
She added that at the time, she also was a volunteer attorney for the New Jersey chapter of the American Civil Liberties Union and she was approached to represent two complainants.
“One group was pregnant school teachers who had been put on what was euphemistically called maternity leave. This happened early in their pregnancies because it was unpaid and there was no guarantee of a right to return. One reason given for their early departure was that school administrators didn’t want students thinking they had ‘swallowed a watermelon.’
“Another group were blue collar working women who wanted health insurance for their families through their place of employment. Employers only offered health insurance to males. Women were considered secondary earners, working only for pin money. The man was the head of the household and it was important that he got the coverage.”
She noted that “these were the kinds of cases coming into the ACLU and I was called to see if I could handle them. I was not the initiator. These were students and working women who were taking part in making things they way they should be.”
What was your most important victory? “That would have to be Reed v. Reed. Until 1971, the Supreme Court never saw a gender classification that it thought was unconstitutional. Sally Reed was a woman from Boise who divorced her husband. When their son was a teen, the father applied for custody with the idea that he needed to be prepared for a man’s world. She opposed but lost. The boy became severely depressed and killed himself.
“Sally wanted to be the administrator of his estate, her former husband applied; since she had applied first, she thought she would be appointed. But the probate judge told her under Idaho law, between persons equally entitled to administer, males must be preferred over females.”
Ginsburg explained that Reed was a perfect turning point case.
“Sally had been excluded arbitrarily. This wasn’t a made-up case but an everyday woman. We never had to look for plaintiffs, they were all out there.”
By the end of the 1970s, almost all state and federal laws that had been gender based were gone, she noted.
Your favorite dissents? “The Voting Rights Act formula which was challenged as outdated, I would say (Shelby County v. Holder). The Court majority said the formula was outdated. Given the makeup of Congress it was impossible to change it so a major civil rights law was made unconstitutional. My view was that the legislature had said the Voting Rights Act should be extended. Should you have nine unelected judges trump the legislative branch? My answer was no. Members of the political branch probably know more about elections. I would have preserved the Voting Rights Act.”
Ginsburg noted that sometimes a dissent can have an immediate impact and she mentioned the case of Lilly Ledbetter (Ledbetter v. Goodyear Tire & Rubber Co.).
“She worked for Goodyear Tire, the first woman to hold the job she performed,... for over a decade but her pay was on the bottom. A person she trained earned more. She felt she had a Title VII (of the Civil Rights Act of 1964) suit and won in trial court but the Supreme Court said she sued too late. Title VII said you have to complain within 180 days of the act of discrimination. She had been hired in the late 1970s. She was out of time.”
Ginsburg said that she “tried to explain in my dissent that women who take a job mostly done by men don’t want to rock the boat. They don’t want to complain. First, she would have had to have known salary figures for the men and second, her employer surely would have offered a defense by saying she doesn’t do the job as well as the guys even though... she had gotten good performance ratings.
“Her view was that this discrimination is repeated every month, every pay check. If you interpret it properly, you should have 180 days from every check to complain. Congress amended Title VII to adopt the paycheck theory. You always hope that something like that will be the result of your dissent.
“Most of my dissents will be the law someday,” she said with a wry grin, to loud laughter.
What Supreme Court decision would you most like to see overruled? “I mentioned the Voting Rights Act decision but first I would say if I had any decision I could overturn it would be Citizens United. When I go abroad, I am asked how can it be that you allow unlimited campaign contributions. Certainly office holders will be beholden to big money.”
She noted other democratic nations have severe limits on campaign financing contributions. “There will come a time when people are disgusted with this and the pendulum will swing the other way.”
Discuss your dissent in the Hobby Lobby case. “Hobby was decided on the Religious Freedom Restoration Act which championed the rights of the... owners to practice religion. I have no doubt of the genuineness of their belief and practice of their own religion, but they have no right to force their religious belief on a work force that didn’t share that view.”
Can the Supreme Court have an impact on economic inequality? “The Court doesn’t have the power of the purse. Spending programs can’t be created by the Court so major problems like economic inequality must be solved legislatively. The Court can say yes or no or extend the law but it can’t create... programs.
“There are many modern constitutions that guarantee social and economic rights but rights of that nature are aspirational. But here, since Marbury we treat these not as aspirational but as law on the ground. We don’t have economic and social rights in our Constitution and there is no way the Court can provide food and shelter. There have to be programs from the legislature.”
Ginsburg summarized, “I was tremendously fortunate that the women’s movement came alive bringing about social change. I’ve gotten tremendous satisfaction from things I have done that I was not paid to do. Think of yourself as a professional not just to get a job done but as someone who helps others less fortunate. Help to repair tears in your local community, make things better for those not as fortunate as you are. That can provide more satisfaction than any job... and I think lawyers have an obligation to do that.”
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