Before being named a federal judge in 1980 and then a U.S. Supreme Court justice in 1993, Ruth Bader Ginsburg was a lawyer for the American Civil Liberties Union. She spoke about her career as a lawyer and a judge at Yale University on Oct. 19 as part of the university’s Gruber Program for Global Justice and Women’s Rights.
During the event at the Battell Chapel, which was streamed live on the Yale web site, Ginsburg was interviewed by former New York Times Supreme Court reporter Linda Greenhouse, who now lectures at Yale Law School. The 79-year-old Ginsburg, who was instrumental in launching the Women’s Rights Project of the ACLU, described several of the gender discrimination cases that shaped her early career in the 1970s.
The interview has been edited for length and the questions are not necessarily presented in the order they were asked.
LINDA GREENHOUSE: In the 1993 Senate Judiciary Committee confirmation hearing on your appointment to the Supreme Court, you invoked a stance of incrementalism as a judge, quoting Justice Benjamin Cardoza who said, “Justice is not to be taken by storm, she is to be wooed by slow advances.” Can you describe the challenges you faced in your early career as an advocate that shaped your role on the Supreme Court?
RUTH BADER GINSBURG: The major problem gender equality advocates faced in the ’70s was the perception that laws that differentiated between men and women did so for a benign purpose — to protect the woman. So the audience that I was speaking to was virtually an all male federal bench at that time, they thought of themselves as good fathers, good husbands, they knew that race discrimination was a bad thing, but the idea of gender discrimination was something new to them. They thought the law operates benignly in favor or women, by saying they don’t have to serve on juries and by saying they can’t work at night. All the many distinctions that we now see as plain discrimination were regarded as designed to protect and care for the weaker sex. So we had to show the court how these classifications are harmful to everyone; to men, to women and to children.
GREENHOUSE: What was your favorite technique as a young lawyer when arguing for equal rights for women before an all-male federal bench?
GINSBURG: I would try to get men to think not so much about what good husbands or fathers they had been but how do they want the world to be for their daughters.
GREENHOUSE: You got started as a gender equality advocate in the early 1970s, as a lawyer representing clients on behalf of the American Civil Liberties Union. During that time, you represented a [female] Air Force officer who brought what would have been the landmark reproductive rights case, but for the fact that the military changed its policy on pregnancy after the lawsuit was filed. Can you discuss the importance of Struck v. Secretary of Defense?
GINSBURG: It was, I thought, the perfect reproductive choice case to bring before the court because the government was telling Captain Struck you cannot exercise your choice for child birth unless you surrender your career. She had the choice between getting out of the service or having an abortion. So Susan Struck’s position was, it’s my decision to make and the government cannot dictate my choice and force me to give up my career. Based on our brief, then-Solicitor General [Erwin Griswold] filed a suggestion of weakness and the military changed the regulation that says pregnancy is an automatic ground for discharge and then Captain Struck was able to stay in the service, so our case was dismissed as moot. And then instead of Captain Struck’s case, we had Roe v. Wade as the first reproductive choice case instead.
GREENHOUSE: What I think is sometimes lost a little bit in the descriptions of Justice Ginsburg as the ‘Founder of Womens’ Rights” is really what exemplifies her jurisprudence, by really looking at the Constitution as a whole. One case that’s a good example of this looking at constitutional rights as a whole is MLB v. SLJ, which I know is one of your favorite decisions. Can you describe your challenge in reaching that, in which you wrote the majority opinion?
GINSBURG: MLB involved a woman who had been stripped of her parental rights. In order to appeal that decision she had to have a transcript but she didn’t have the money to pay for one. The law as it then existed was that if you have a criminal case, and you’re too poor to purchase a transcript, even if it was a petty offense, you were entitled to a transcript at the state’s expense. But there was a sharp line between criminal cases and civil cases and in civil cases you had to fend for yourself or have the aid of a lawyer. So if you had a civil case and you could not afford a transcript, you were on your own. So the challenge was how to get the court to make a small breach in that line between criminal cases, yes, civil cases, no. Which we did. MLB was able to get her transcript.
GREENHOUSE: How is the decision reached in MLB’s favor relevant to the federal court today.
GINSBURG: The issue is current now in immigration cases, where the government is seeking to remove someone from the U.S. through deportation, which is labeled as a civil matter, but how much more important it is than the trivial criminal offense to the individual who is dealing with state’s power? You need to look at what is at stake for the individual when facing the power of the state. It’s important to consider the artificial lines between civil and criminal laws when considering a person’s rights.•