by Irin Carmon
Her friends say that’s what she had, most of the time. Especially in the early years, when Jane was little. Having read that the first year of a child’s life is when the personality is formed, Marty threw himself into caring for Jane while they were living in Oklahoma. He played classical music for her and took over the 2 A.M. feeding, because it was easier for him to fall back asleep.
Life in New York was another story. The mother of one of Jane’s classmates at Brearley told her daughter to be extra nice to Jane, because, the woman said, pityingly, “Jane’s mommy works.” Marty was working to establish himself at his law firm, Weil Gotshal & Manges, and it was easy enough to fall into what was expected. True, the Ginsburgs agreed that unless there was something urgent, they would both be home by seven o’clock for dinner. Marty’s firm was reputed to be “one of the biggest sweatshops in town,” as RBG put it. But even without Marty putting in late nights, she said, “somehow the tax department flourished.”
Still, falling into what was expected meant twice the burden for RBG, who was climbing the academic ladder while juggling care for baby James, born ten years after Jane. She had already gotten used to doing so much, but her patience with her husband wore thin. In 1969, she reportedly rebuked him, “Your son is now four years old and you’ve never taken him to the park.” Marty said he looked back at it with some regret. “But it was also the way things were,” he said.
Not forever. The balance shifted around the time RBG added the ACLU Women’s Rights Project and Supreme Court advocacy to her docket. Teachers at the Dalton School had begun calling her constantly, complaining that James, then in elementary school, had gotten into trouble again. One day, he remembers, he snuck into the old-fashioned, pull-lever elevator unattended and took it up one flight—very much against the rules. Unluckily for him, the door opened right into the face of the janitor. When the school called his mother, she lost it.
“This child has two parents,” she declared, asking them to alternate calls with her husband, starting with this one. RBG liked to say the calls decreased after that, because the school was loath to bother an important corporate attorney at work. James believes the calls tapered off because school administrators were so aghast at Marty’s response to their description of the crime: “Your son stole the elevator!” “How far could he take it?” Marty replied.
In the late seventies, RBG was interviewed for a book called Women Lawyers at Work, which devoted many paragraphs to her work-life balance. The author, Elinor Porter Swiger, seemed eager to find her subject torn or in crisis. Swiger noted that Jane had once rebelliously announced she was going to be a stay-at-home mom like Evelyn Ginsburg. And Swiger pressed RBG for her reaction to a terrifying incident when James was two and a housekeeper found him screaming, with Drano on his lips. RBG vividly described rushing to the hospital: “Deep burns distorted his face, charred lips encircled his mouth—a tiny, burnt-out cavern ravaged by the lye.” Swiger wondered: “How did Ruth feel during this prolonged ordeal? As a working mother, did she agonize with regret that she had not been there when it happened? The answer is a qualified ‘yes.’” Then RBG paused to consider it. She said the real mistake had been “not putting the Drano out of the toddler’s reach.” Swiger wrote, not entirely admiringly, “It is a part of Ruth Ginsburg’s success that she can view this incident in a relatively objective way.”
On vacation in the Virgin Islands in 1980 Collection of the Supreme Court of the United States
As a parent, RBG could be “austere,” as Jane put it. “When I did something bad, which happened often, my dad would yell, but my mother would be real quiet and I’d know she was very disappointed in me,” Jane said. RBG went over her children’s homework every day; one summer, James says, she gave her son the assignment of writing an essay every day. The kids tried to make her laugh, and a teenage Jane would write down each time she did so in a book called Mommy Laughed.
Still, the kids grew to appreciate what their mother was doing. In her high school yearbook, nearly a decade before RBG was even a judge, Jane listed her ambition “to see her mother appointed to the Supreme Court. If necessary, Jane will appoint her.”
By the late seventies, Marty had had enough of working at his law firm full-time, and he had made his fortune. Having taught at NYU part-time for years, he accepted a job teaching tax law at Columbia Law School, where his wife taught (and where Jane would go on to teach, the first-ever mother-daughter professor pair at the school). A year after Marty settled in at Columbia, Carter’s appointment of RBG to the D.C. Circuit meant Marty had to drop everything and move to Washington, where he began teaching at Georgetown University Law Center.
For years, people asked him if it was hard commuting back and forth between New York and Washington. It never occurred to them that a man would leave his job for his wife’s career.
FIRST GENTLEMAN
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Wives—and until 1981, they were always wives—of Supreme Court justices have historically had roles not unlike a gaggle of First Ladies: sitting for photographs in Good Housekeeping, sitting in a special reserved section of the court even after their husbands retired, gathering for lunch three times a year in what used to be called the Ladies Dining Room. When the second woman arrived on the court, it was conceded that this woman thing was probably not a fluke. In 1997, the room was finally renamed the Natalie Cornell Rehnquist Dining Room, after the chief justice’s late wife. (It was Justice O’Connor’s suggestion, and RBG sometimes pointed out that the Chief resisted change, but could not say no to that one.)
John O’Connor was the sole first gentleman for over a dozen years. He and Marty used to joke that they were members of the Dennis Thatcher Society, which Marty described as one’s wife having “a job which deep in your heart you wish you had.” Marty added, “Now let me just say that in my case it is not true. Only because I really don’t like work. She works like fury all the time. The country’s better off as it is.”
An invitation for the Bader-GinsburgsLibrary of Congress Manuscript Division, Courtesy of Justice Ginsburg
In later years, when John O’Connor was diagnosed with Alzheimer’s and Justice O’Connor retired, Marty was the only male member of the group. He didn’t care, said Cathleen Douglas Stone, widow of William O. Douglas. “Marty liked being a spouse,” she wrote in Chef Supreme, a cookbook of Marty’s greatest hits put out by the Supreme Court Historical Society. “I remember being surprised when I realized his dishes weren’t catered,” she added.
On each clerk’s birthday, Marty would bake a cake—almond or chocolate, sometimes ginger, lemon, or carrot. The justice would leave a to-the-point note: “It’s your birthday, so Marty baked a cake.” Sometimes the clerks would mull the day’s work over Marty’s biscotti.
“I was always in awe of her,” says former clerk Kate Andrias, “but there was something disarming about seeing her with a partner who adores her but also treats her like a human being.” Another clerk, Heather Elliott, wrote about one late night, after an event, when RBG was working in chambers while Marty read quietly. “I started to talk to her about the research I had done, and while I was talking, Marty got up and walked toward us. I started freaking out in my mind—‘Is what I am saying that stupid? What is he coming over here for?!’—only to watch him come up to RBG, fix her collar (which had somehow fallen into disarray), and then go back to his book. The comfortable intimacy of that moment was something I will always remember.”
RBG told me, “Marty was always my best friend.”
That remarkable intimacy had survived Marty’s bout with cancer in law school, and RBG’s two diagnoses, a decade apart. Cancer had left them alone long enough to be together for the nearly sixty years they had been best friends. But it came back. In 2010, doctors said Marty had metastatic cancer.
“If my first memories are of Daddy cooking,” Jane said, “so are my last. Cooking for Mother even when he could not himself eat, nor stand in the kitchen without pain, because for him it was ever a j
oy to discuss the law over dinner with Mother while ensuring that she ate well and with pleasure.”
Before Marty’s last trip to the hospital, RBG found a letter that he had left for her on a yellow pad by the bed.
* 6/17/10 My dearest Ruth—You are the only person I have loved in my life, setting aside, a bit, parents and kids and their kids, and I have admired and loved you almost since the day we first met at Cornell some 56 years ago. What a treat it has been to watch you progress to the very top of the legal world!! I will be in JH Medical Center until Friday, June 25, I believe, and between then and now I shall think hard on my remaining health and life, and whether on balance the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms. I hope you will support where I come out, but I understand you may not. I will not love you a jot less. Marty
Handwritten letter from Marty to RuthCourtesy of Justice Ginsburg
Marty died on June 27, within a week of their wedding anniversary and of the day RBG’s mother had died. It was also the most important time of the Supreme Court calendar, the end of the term when all of the big decisions come down. The court was sitting the day after Marty’s death, and RBG had an opinion in a key case, which said that a Christian group at a public university could not bar gay students from attending meetings.
Jane and James told her she had to show up in court; after all, she had never missed a day. “My father would certainly not have wanted her to miss the last days on the bench on account of his death,” says Jane.
And so she sat there, very still, with a dark ribbon in her hair. As Chief Justice Roberts read a brief tribute to Marty, Scalia wept. Marty was buried at Arlington National Cemetery. Not long afterward, the folded American flag from his burial sat on the windowsill of RBG’s chambers.
“She’s Justice Ginsburg. I’m Justice O’Connor.”
—Sandra Day O’Connor, 1997
WORKING FRIENDS
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A buzzer rings five minutes before the justices take their seats at the bench, the closest thing the court comes to facing the public. They make their way to the Robing Room for a private ritual. Crossing the room, paneled in American quartered white oak, they approach lockers that bear their names written on gold plaques. Inside each locker is a black robe. RBG’s chosen collar rests on an interior shelf.
Once robed, the justices shake hands with one another, before lining up in order of seniority and shuffling into the court chamber. RBG loves this tradition. To her, it enacts the collegiality that she has long treasured on the court. It is “a way of saying we are all in this together.” So what if another justice responded to you, in RBG’s memorable words, with a “spicy dissenting opinion”? The ideals of the court, of fairness and justice, transcend the daily tempers.
And yet. For years, something had been missing. If Sandra Day O’Connor, the first female justice and the only one for her first twelve years, had to go to the bathroom, she had to scurry back to her chambers. There was only a men’s bathroom by the Robing Room. A second woman, RBG, had to join the court for it to get a women’s bathroom. The renovation was, RBG said triumphantly, “a sign women were there to stay.”
Collection of the Supreme Court of the United States
Two women on the court at once did not banish sexism. When RBG was first appointed to the court, the National Association of Women Judges presented her with “I’m Sandra” and “I’m Ruth” T-shirts. The white-bobbed Arizonan and the dark-haired, bespectacled Brooklynite didn’t look or sound anything alike. And yet, just as the trade group of female judges had predicted, based on their own years of experience, people constantly confused the two justices.
RBG and Sandra Day O’Connor in 2001 Getty Images/David Hume Kennerly
Even lawyers who should have known better. Arguing cases in 1997, for example, two repeat players before the court, Harvard Law professor Laurence Tribe and acting Solicitor General Walter Dellinger each flubbed the female justices’ names. On the bench, O’Connor had to set the record straight: “She’s Justice Ginsburg. I’m Justice O’Connor,” she said firmly.
Of course, if either was too firm, she risked distinguishing herself in a different way. “Once Justice O’Connor was questioning counsel at oral argument,” RBG recalled. “I thought she was done, so I asked a question, and Sandra said: ‘Just a minute, I’m not finished.’ So I apologized to her and she said, ‘It’s OK, Ruth. The guys do it to each other all the time, they step on each other’s questions.’ And then there appeared an item in USA Today, and the headline was something like ‘Rude Ruth Interrupts Sandra.’”
RBG called O’Connor her “big sister.” After all her years standing in for all women, O’Connor said of RBG, she “greeted her with enormous pleasure.” When RBG fretted over the dry first opinion the chief justice assigned her, O’Connor gave her a pep talk. As RBG read that opinion on the bench, O’Connor, who had dissented in the case, passed her a note. “This is your first opinion for the Court,” she had written. “It is a fine one, I look forward to many more.” Remembering the comfort that note gave her on such a nerve-racking day, RBG did the same for the next two women to join the court, Sonia Sotomayor and Elena Kagan.
O’Connor and RBG shared a generation of firsts, women who had to be twice as good just to be given a shot. That was about all they had in common. A Republican party activist before she became a judge, O’Connor once gave speeches assuring wary men that unlike those flaming feminists, she came to them “wearing my bra and my wedding ring.” RBG and O’Connor definitely didn’t have jurisprudence in common either. A study found that in the decade they served together, O’Connor’s votes diverged more from RBG’s than from any other justice except John Paul Stevens. Even their disagreements pleased RBG, in a way: They proved women had diverse views. And unlike some of her fellow Reagan appointees, O’Connor had crossed the aisle in issues that affected women. The year before RBG joined the court, O’Connor, Kennedy, and Souter found a middle ground in Planned Parenthood v. Casey that saved the constitutional right to abortion. Every other year, RBG and O’Connor hosted dinners for the women in the Senate, back when there were only six.
Cancer invaded both women’s lives. When RBG had colorectal surgery in 1999, O’Connor, who had survived breast cancer, was the one who gave her advice on scheduling chemotherapy for Fridays so she could recover over the weekend and be back on the bench the following Monday.
ODD COUPLES
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RBG saw her fellow justices’ reaction to her first cancer diagnosis as proof of the respectful, collegial environment of the court she so cherished. “Everyone rallied around me,” she said. Even Chief Justice Rehnquist called her into his office and offered to “keep you light” on assignments, giving RBG her pick of opinions to write. (She didn’t take him up on the offer to go easy, but did pick two opinions she wanted.)
Thirty years after being her biggest skeptic, Rehnquist had belatedly learned part of the feminist lesson RBG had tried to teach him. A 2002 case before the court, Nevada Department of Human Resources v. Hibbs, sounded like the next generation of Stephen Wiesenfeld, featuring a man needing unpaid time off to care for his sick wife. But this time, with RBG at his side, Rehnquist didn’t crack jokes. He wrote an opinion citing RBG’s Supreme Court litigation and her VMI opinion. “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men,” Rehnquist wrote. “Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave.”
The opinion was so woven through with RBG’s passions that Marty asked her if she had written it herself. RBG could fairly take a lot of credit for Rehnquist’s evolution, but she gave him credit too. Her chief’s life had changed after his daughter divorced. Rehnquist started leaving the court early to pick his granddaughters up from school. “Most people had no idea that there
was that side to Rehnquist,” RBG said. She learned it, serving beside him.
The least true image of RBG is the early Photoshop job that circulated online after Bush v. Gore, showing her with two middle fingers pointed upward and captioned “I dissent.” Never happened, never will. No one is more committed to comity, to smiling through disagreement, than RBG. The proof is in the court’s most famous odd-couple friendship.
It all started when Scalia, then a law professor, gave a speech fulminating about a decision by the D.C. Circuit court, on which they would soon both serve. Although the mild-mannered liberal RBG disagreed with the blustery conservative Scalia from the start, “I was fascinated by him because he was so intelligent and so amusing,” RBG said. “You could still resist his position, but you just had to like him.” By the time they were both on the Supreme Court, Scalia called her “an intelligent woman and a nice woman and a considerate woman—all the qualities that you like in a person.”
Some liberals found the Scalia–Ginsburg friendship hard to grapple with. “At a holiday party last December to which Ginsburg friends of every stripe were invited,” Time magazine reported when RBG was nominated, “Scalia came in and liberals edged to the opposite side of the room.” During her confirmation hearings, some Democrats even fretted that RBG had somehow been influenced by Scalia’s views. Even their clerks have been mystified by the relationship. But clerks work at the court for a year. For the justices, this is for life. Whatever their disagreements, they are stuck together. Besides, the two share a love of opera, and RBG likes people who can make her laugh. No wonder their unlikely friendship is now the subject of an opera, Scalia/Ginsburg.
