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Justice Ruth Bader Ginsburg entertains, educates Notre Dame audience

September 21, 2016
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About once a month in the early 1970s, Ruth Bader Ginsburg, then a young mother raising a family and establishing her legal career, would have her day interrupted by a phone call from her son’s school.

Her youngest, James, she explained, often found himself in the middle of mischief, which caused her to have to meet with his teachers on a regular basis. At one point, Ginsburg, weary from having stayed up all night writing a legal brief, made a request of the school.

“This child has two parents,” she said. “Please alternate calls.”

The story delighted the crowd at the University of Notre Dame, but the U.S. Supreme Court associate justice wondered if what happened next underscored the second-place status women had in society. Although her son’s behavior did not change, the calls dwindled considerably, and she speculated school officials might have been reluctant to disturb a man while he was at work.

Ginsburg talked about her life and career during a special appearance at Notre Dame Sept 12. During the two-hour event, Judge Ann Claire Williams of the 7th Circuit Court of Appeals moderated the discussion that also included a handful of questions from students.

Almost swallowed by the light-brown leather high-backed chair she was seated in, Ginsburg held the attention of the 7,500 who filled a large portion of the Purcell Pavilion at the Joyce Center. She spoke softly and deliberately, detailing some of her court cases, recalling her home life and, in a move that drew wild applause, pulling out a pocket copy of the U.S. Constitution while explaining the structure of the federal judiciary.

Ginsburg educated audience members about the change in the status of women in society and the role the courts played in bringing more equality. She is credited with significantly advancing women’s rights, especially during her time as an attorney for the American Civil Liberties Union, but she views her success as part the larger movement among females to assert themselves more.

“Courts don’t initiate change, people do,” Ginsburg told the crowd. “… If people don’t care, the court will not save this society. If people do care, then the court may rethink some of its old decisions as it did in Brown v. Board of Education and put its stamp of approval on the side of change.”

Arbitrary and unfair

Ginsburg became only the second female justice when she took her seat on the Supreme Court of the United States in August of 1993. While at Harvard Law School in the 1950s, she was just one of nine female students. Following her graduation from Columbia Law School, she was rejected by 14 law firms and one Supreme Court justice for a clerkship.

She attributed her difficulty to the strikes against her — she was a woman, she had a baby, she was married, and she was Jewish.

Eventually a law school professor helped her get a clerkship in the U.S. District Court for the Southern District of New York and she went on to secure a teaching position at Rutgers Law School. There she saw how the courts could be instrumental in pushing back against gender discrimination.

As a young professor, Ginsburg was among the women who filed a lawsuit against the entire university for unfair compensation. The dean of the law school justified giving a cut in salary to the future justice by pointing out her paycheck was supplemental to her household since she had a husband who worked at a law firm whereas the male professors were the primary providers for their families.

But Ginsburg realized the university women had a powerful weapon. About the time the lawsuit was filed, Congress passed the Equal Pay Act of 1963 that mandated women doing the same job as men had to be compensated at the same level.

The dispute was not settled until 1969. But she proudly told the Notre Dame audience that the women all received pay bumps with the lowest increase being $6,000 per year.

“It’s probably hard for an audience of this age to appreciate what the law was like into the 1960s and even into the 1970s,” Ginsburg said. “People were classified in two ways — either you were a breadwinner, that was the man; or you were responsible for staying home and raising children. So if the woman was breadwinner, it was hard for her.”

When she was an attorney for the ACLU, she co-founded the Women’s Rights Project. Her work started with the brief she wrote for Reed v. Reed, 404 U.S. 71 (1971), which is credited with convincing the Supreme Court that the Equal Protection Clause of the 14th Amendment also prohibits sex discrimination.

The seven landmark equal protection cases she argued at the Supreme Court illustrated her strategy to represent women as well as men. Her goal was to show the law was arbitrary and unfair with regards to gender.

In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), Ginsburg argued on behalf of a young father who was ineligible for Social Security survivor benefits after his wife died in childbirth because he was not female. The Supreme Court unanimously agreed. Future Chief Justice William Rehnquist reasoned the prohibition was arbitrary from the point of view of the baby who did not distinguish between his mother or father taking care of him.

Dissenting

As a Supreme Court justice, Ginsburg has become noted for her dissents. Her fiery retort against the ruling in the voting-rights case Shelby County v. Holder, 570 U.S. ___ (2013), has been cited as the impetus behind her popular culture moniker, “Notorious R.B.G.”

Ginsburg explained to the audience that dissenting opinions from the bench are unique to the U.S. Judges from other countries have told her that publicizing disagreements would lead citizens to think the law was unstable.

“Why shouldn’t people know that our legal issues don’t necessarily have one crisp right answer?” she asked.

Still, she is careful about choosing when to offer a contrary ruling. “I tried not to dissent where I initially had a different view,” Ginsburg said. “I reserved the dissent for cases where I think the court was not just wrong but egregiously so.”

Such was the situation in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), a case which harkened back to the Rutgers lawsuit.

The majority found that although Lilly Ledbetter was paid less than her male counterparts, she could not sue because she had failed to file her complaint in a timely fashion.

Ginsburg authored the four-justice dissent, which countered that an employee would need time to figure out she was getting paid less. “Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex,” Ginsburg wrote.

The 20-page minority opinion is widely viewed as spurring the passage of the Lilly Ledbetter Fair Pay Act of 2009 that adjusted the 180-day statute of limitations to correspond with each paycheck.

Ginsburg, 83, is the oldest justice sitting on the Supreme Court. Several have speculated when she will step down, but she reiterated at Notre Dame that she intends to continue as long as she can do the work at full steam.

She also imparted some advice that reflects her career breaking down barriers. She counseled audience members to have patience, a sense of humor and a stick-to-itiveness.

“When you first have a problem, it may seem the trees are all in the way, you don’t see a path through,” Ginsburg said. “But if you work long enough and hard enough, you will see that path.”•
 

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