CHICAGO (CBS) — U.S. Supreme Court Justice Ruth Bader Ginsburg discussed a wide range of subjects – from advances for women to the development of the “Notorious RBG” moniker – at a conversation at the University of Chicago Monday.
Ginsburg talked with Katherine Baicker, the dean of the U of C’s Harris School of Public Policy, at the Reva and David Logan Center for the Performing Arts on East 60th Street.
Ginsburg has served on the high court for 26 years, having been appointed by President Bill Clinton in 1993. When Baicker asked Ginsburg about how the Supreme Court has changed, Ginsburg emphasized one way that it has not.
“One way it hasn’t changed – the court is the most collegial place I’ve ever worked,” she said.
Ginsburg said noted that while news reports about the Supreme Court often focus on divisions – the nine justices always agree more often than they disagree. She said this past term, 5-4 split decisions are actually less common than unanimous decisions.
As a prime example of collegiality, the liberal Ginsburg’s rulings often clashed with those of the late staunch conservative Justice Antonin Scalia – but they had a tight personal relationship for many years.
Ginsburg said she first heard Scalia speak at the U of C when he was on the law faculty there. She said they both enjoyed opera, cared a lot about families, and believed in writing opinions in a way that judges and lawyers could always understand. They even traveled together to India and were photographed riding an elephant together, she noted.
But Ginsburg said what has changed a great deal since she was confirmed to the court is the role of women on the bench – and the advances for women in American society.
Ginsburg is only the second female justice ever appointed to the Supreme Court, and for 12 years, she and Justice Sandra Day O’Connor were the only women on the court and some people would get their voices mixed up. After O’Connor retired in 2005, Ginsburg was the only woman justice until President Barack Obama appointed Justice Sonia Sotomayor, followed by Justice Elena Kagan.
“We’re all over the bench,” Ginsburg said. “We’re a third of the bench.”
Ginsburg also outlined some of the changes in the way the law has been applied when it comes to women’s rights – and changes in the commonly-held attitudes those laws reflected. In the 1970s, when Ginsburg was litigating discrimination cases, there were gender-based classifications all over state and federal laws.
“Most of the judges thought that women were favored by the law; that they were treated differently as a preference. So for example, women weren’t called for jury duty in many states. The reason – they shouldn’t be distracted from their duties as the homemaker and the rearer of children,” Ginsburg said.
Ginsburg outlined some cases that came before the Supreme Court over the years as evidence of the arc of change.
In 1948, she noted, the State of Michigan passed a law that forbade women from serving as bartenders unless their husbands or fathers owned the bar. Plaintiff Valentine Goesaert challenged the law, and when Goesaert v. Cleary came to the U.S. Supreme Court, “the court almost treated it as a joke,” Ginsburg said.
The law ended up being upheld, as the justices at the time argued that concluded that bars can sometimes be rowdy places and thus, the women would need the protection of fathers and husbands. This was despite the fact that there were no restrictions on women working as barmaids to carry drinks to tables.
“The end of that story is a good one, because the liquor commission decided even though they had this victory at the Supreme Court, they were not going to enforce the law,” Ginsburg said. “So no woman lost her job as a bartender because of the decision.”
Ginsburg also noted the 1961 case Hoyt v. Florida. Gwendolyn Hoyt had reached the breaking point with an abusive husband, so she hit him over the head with a baseball bat and killed him. In Florida at the time, women were permitted to come to the clerk’s office and volunteer to be jurors, but they did not have to register and would not be called for jury duty.
The Supreme Court ruled at the time that the Florida law was not discriminatory, with the reasoning that women had the best of both worlds – they could choose to volunteer for jury duty if they wanted to, “but if they don’t want to, we won’t distract them from their home duties,” Ginsburg explained. Hoyt had thought a jury with women might be sympathetic enough to convict her of a lesser crime of manslaughter, but an all-male jury would, and did, convict her of murder.
But the direction of the Supreme Court changed in the 1970s.
“In that decade, in case after case, the Supreme Court struck down gender bias in the law,” and dismantled the “separate spheres” notion that presumed men were breadwinners and women stayed home.
And the change in attitudes came, Ginsburg noted, on a relatively conservative court with Chief Justice Warren E. Burger at the helm.
“My explanation for why it happened is that society had changed, and the court was catching up to the way people were living,” Ginsburg said. “So a two-earner family had become commonplace in the 60s and into the 70s. The time was ripe for the change that the court made.”
But there is still work to be done, Ginsburg emphasized. While the statute books have been cleared of explicit gender discrimination, unconscious bias persists, she said.
Ginsburg gave the example of a symphony orchestra – she said when she was young, she never saw a woman playing in an orchestra except maybe as a harpist. Meanwhile, New York Times critic Howard Taubman said if he were blindfolded, he would still be able to tell if a pianist were a woman or a man.
Taubman was put to the test for real, listening to man and woman piano players with a blindfold, and got all mixed up. He went on to admit that he’d had lesser expectations for women than men, Ginsburg said.
After that, someone came up with the idea to put a curtain between musicians who were auditioning and judges – and it just so happened that women got high marks and were admitted in large numbers to symphony orchestras, Ginsburg said. And it had been unconscious bias that stood in the way of that happening, she explained.
Later in the discussion, Baicker noted that many constitutional revisions have focused on the power of government, but not too many have focused on the power of corporations. Ginsburg said the law has actually adjusted well to the dominance of large corporations.
“I think that the law can adjust very well; I mean, it has. You mentioned antitrust,” she said. “What was considered restraint of trade in the end of the 19th century is not necessarily the same as it is today.”
Ginsburg, who dissented in the Citizens United v. FEC case that held that the government could not restrict political campaign spending by private corporations or organizations, did express hope that there would someday be controls put on campaign spending.
Baicker also asked Ginsburg about her status as a pop culture icon – beginning with a Tumblr blog by New York University law student Shana Knizhnik that first depicted Ginsburg as the “Notorious R.B.G.”
Knizhnik was reacting to the case Shelby County v. Holder, which invalidated a key portion of the Voting Rights Act of 1965 that required federal clearance for certain state and local governments before they changed anything about their voting laws. Ginsburg said Knizhnik recognized that the decision would revive efforts to keep African-Americans from the polls.
“So she took the summary of my dissent from this blog, and she called it the Notorious R.B.G., after the famous rapper the Notorious B.I.G., because she knew the two of had something in common,” Ginsburg said.
That something is that she and the late rapper were both born and raised in Brooklyn.
As to her current pop culture, cachet, Ginsburg said it could be “a little overbearing” when everyone wants to take photos with her. But she can always find a salesperson right away at the Macy’s in Pentagon City.
An 11-year-old submitted a question of whether Ginsburg had wanted to be a Supreme Court justice since she was a child. Ginsburg emphasized that such opportunities were not available to women when she graduated from law school in 1959 – and thus, such aspirations weren’t even a thought.
As late as 1968, there was only one woman on the federal courts of appeals – Lyndon B. Johnson nominee Shirley Hufstedler. President Jimmy Carter made Hufstedler the first ever Secretary of Education, and then, there were no women on appeals panels, Ginsburg said.
“But President Carter looked around and he said, ‘I see the federal judges and they all look like me. They are all white. They are all men. But that is not how the United States looks,” Ginsburg said.
So Carter began appointing women and people of color to the bench in large numbers, and Ginsburg was one of the women. She was appointed to the Court of Appeals for the District of Columbia Circuit in 1980. President Ronald Reagan went on to appoint O’Connor as the first woman Supreme court Justice, and, Ginsburg said, “No president has ever gone back to the way it was.”
Ginsburg also received the Dean’s Award from Baicker for her influence on future public policy leaders and scholars.
Despite undergoing cancer treatment recently, Ginsburg, 86, is making a round of speaking appearances before the court starts its fall term in October.