My Own Words

by Ruth Bader Ginsburg

  Malvina, as I earlier mentioned, grew up in a free-state family strongly opposed to slavery.45 She very much wanted her husband to finish writing that dissent. On a Sunday morning when the Justice was attending church services, Malvina retrieved the Taney inkstand from its hiding place, gave the object “a good cleaning and polishing, and filled it with ink. Then, taking all the other ink-wells from [her husband’s] study table, [she] put the historic . . . inkstand directly before his pad of paper.”46 When Justice Harlan came home, Malvina told him he would find “a bit of inspiration on [his] study table.”47 Malvina’s memoir next relates:

  The memory of the historic part [t]hat Taney’s inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery . . . in the ante-bellum days, seemed, that morning, to act like magic in clarifying my husband’s thoughts in regard to the law that had been intended . . . to protect the recently emancipated slaves in the enjoyment of equal civil rights. His pen fairly flew on that day and . . . he soon finished his dissent.48

  Next time my thoughts on an opinion “refuse to flow easily,” I may visit the Marshal’s Office in search of a pen in need of absolution, perhaps the one Justice Bradley used to write his now infamous concurring opinion in Myra Bradwell’s case, Bradwell v. Illinois,49 an 1873 decision upholding a state’s right to exclude women from the practice of law. Justice Bradley wrote in his opinion: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . .”50 In his view, women’s “domain” did not extend beyond “the domestic sphere.” He rooted his opinion in a law higher than the Constitution: “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”51 (Wouldn’t Justice Bradley be amazed to learn that women today are astronauts, commercial pilots, governors, senators and representatives, state and federal judges, and Supreme Court Justices.)

  The last of my wives’ stories takes us into the twentieth century. I will relate some aspects of the life of Helen (“Nellie”) Herron Taft, a woman who wanted the man she married to become president, and actively helped make that dream come true. Sadly, she suffered two strokes during Taft’s one-term presidency, the first causing her to become speechless, a disability she struggled to overcome.

  Nellie Herron, even as a young woman, did not hide her intelligence, as many marriage-bound women of her generation felt it necessary to do. She pursued university studies in chemistry and German,52 and until the birth of her first child, taught at a private school for girls.53 While courting Nellie, William Howard Taft attended Saturday night “salons” Nellie hosted in Cincinnati, at which participants discussed the thoughts of luminaries, including Benjamin Franklin, John Adams, Edmund Burke, Martin Luther, Rousseau, and Voltaire.54 Taft admired Nellie’s “eagerness for knowledge of all kinds,” and “her capacity for work.”55 Her credo: “We live to learn.”

  Shortly before Will and Nellie married in 1886,56 Nellie visited Washington, D.C. Taft wrote to her: “I wonder, Nellie dear, if you and I will ever be there in an official capacity? Oh yes, I forgot; of course we shall when you become secretary of the treasury.”57 Nellie, according to her father-in-law, was economical and an excellent calculator. Taft wisely entrusted management of the family’s finances to her.58 In 1897, after eleven years of marriage, Taft expressed this sentiment in a letter to Nellie: “You are so much of my life. . . . I am so glad that you don’t flatter me and sit at my feet with honey. You are my dearest and best critic and are worth so much to me in stirring me up to best endeavor.”59 Among Nellie’s pursuits in the couple’s Cincinnati days, she founded and was for several years president of the Cincinnati Symphony Orchestra.

  Her eye on the U.S. presidency, Nellie had reservations about her husband’s appointment to the U.S. Court of Appeals for the Sixth Circuit in 1892, following his service as solicitor general.60 She later recalled in her autobiography: “[M]y thinking led me to decide that my husband’s appointment on the Bench was not a matter for such warm congratulation. . . . I began even then to fear the narrowing effects of the Bench and to prefer for him . . . an all-round professional development.”61

  Taft left the Court of Appeals in 1901 to become governor of the Philippines.62 He and Nellie took up residence in Manila. Cholera plagued the island. When President Theodore Roosevelt told Taft that he was in line for a position on the Supreme Court, and eventually, appointment as Chief Justice, Nellie still resisted. “I had always been opposed to a judicial career for him,” she wrote, “but at this point I shall have to admit I weakened just a little.”63 Recognizing the grave situation in the Philippines and the importance of his efforts there, Taft, after talking it over with Nellie, declined the Supreme Court appointment.64

  During their years in the Philippines, Will and Nellie, in contrast to the military leadership, genuinely respected the local culture and sought to pave the way for democratic self-rule. Living to learn, Nellie in those years traveled all over the islands, and also to Japan, Siberia, Russia, and Western Europe.

  Taft became a presidential candidate in 1908. The Washington Post wrote of Nellie’s influence: “There is every reason why she should feel satisfied in her husband’s success, for had it not been for her determination to keep him from becoming a Supreme Court Justice he would not have been able to accept the nomination” for the presidency.65

  As first lady, Nellie fared well in the press. The Washington Post commented: “In the matter of mental attainments, she is probably the best fitted woman who ever graced the position she now holds.”66 The New York Times put it succinctly: She “has brains and uses them.”67 Among other enterprises, Nellie, with the aid of the mayor of Tokyo, introduced the cherry blossoms that annually adorn the capital city to celebrate the arrival of spring.68 Among her many “firsts,” in 1909, she was the first first lady to ride with the president on Inauguration Day, and the first first lady not only to drive in a car, but to drive one herself.

  Taft became Chief Justice of the United States in 1921. It was the post he wanted more than any other. Nellie, whose consuming ambition was to see her husband elected president, did not include in her autobiography a chapter on his tenure at the Court. But we have this information from a letter Taft wrote to his daughter: “She goes without hesitation everywhere, accepts all the invitations that she wishes to accept, goes out at night when there is anything that is attractive to her.”69 Nellie died in 1943, one week shy of her eighty-second birthday.70 She lived to see all three of her children—her sons Robert and Charles and her daughter Helen, once dean of Bryn Mawr College—gain law degrees.71

  The life of Supreme Court spouses has changed greatly since the days I have described. Spouses do not receive “at home” callers on Monday, or any day; they pursue careers or interests of their own. Adding “humanizing” variety, two men, so far, count among Supreme Court spouses. Spouses have seats in a special section of the courtroom, and they lunch together three times a year, rotating cooking responsibility. One member favored as a co-caterer is my husband, super-chef Martin D. Ginsburg. The lunches are held in ground-floor space once designated the Ladies Dining Room, but at Justice O’Connor’s suggestion, fittingly renamed the Natalie Cornell Rehnquist Dining Room in the 1997 Term. (Nan Rehnquist, who died in 1991, had been the prime mover in renovating the room.)

  Chief Justice Rehnquist commented in an address some years ago: “Change is the law of life, and the judiciary will have to change to meet the challenges we will face in the future.”72 Changes are in store for the Court in the Term about to start. But I anticipate that they will be eased by the way the Justices and their partners—at work and in life—relate to, care about, and respect each other.

  * * *

  I. Justice Ginsburg has delivered numerous versions of this lecture to various audiences over the years, including at Ventfort Hall in Lenox, Massachusetts, on September 16, 2005. She also coau
thored an article on the topic with her 1996 Term law clerk, Laura W. Brill, who initially proposed the idea for the lecture and article. For subsequent additions and revisions to the article, which was ultimately published in 24 Journal of Supreme Court History 255 (1999), Justice Ginsburg acknowledges with appreciation the assistance of her law clerks Gillian E. Metzger, Alexandra T. V. Edsall, and Rochelle L. Shoretz. For this compilation, we drew from portions of the Ventfort Hall lecture and the journal article, and edited for length and clarity outside the original context.

  Part Three

  * * *

  On Gender Equality:

  Women and the Law

  Introduction

  NINETEEN-SEVENTY WAS A watershed year for thirty-seven-year-old Ruth Bader Ginsburg. Inspired by “the awakening consciousness” of her newly activist women law students, the recently tenured Rutgers law professor pivoted the focus of her scholarship and legal analytical skills from the crucially important (but not exactly riveting) principles governing court procedures in the United States and abroad to the equality of the sexes under law. (For the record, Justice Ginsburg herself would dispute our characterization of her earlier scholarly specialty as anything other than riveting. “I love all procedure cases,” she told us.1 She loved studying procedure at law school, learning and writing about Swedish procedure in the early sixties, and teaching procedure courses at Rutgers and Columbia law schools. She continues to enjoy crafting procedure opinions as a Justice on the Supreme Court, where Chief Justice Rehnquist indulged her predilection by assigning her more procedure opinions to write than any other Justice.)

  On May 1, Law Day, 1970, Professor Ginsburg chaired a student panel on “women’s liberation” at Rutgers Law School in Newark, New Jersey. At year’s end, she participated in a panel at the annual meeting of the Association of American Law Schools, held in Chicago, in which she argued that “two jobs merit the immediate attention” of the law schools’ academic community: first, “the elimination from law school texts and classroom presentations of attempts at comic relief via stereotyped characterizations of women,” and second, “the infusion into standard curricular offerings of material on sex-based discrimination.” 2 In between these events, she was persuaded by her students to teach a course on sex discrimination the following spring and devoted part of her summer to pulling together materials for the course. “In the space of a month,” she remembered, “I read every federal decision ever published involving women’s legal status, and every law review article. That was no grand feat. There were not many decisions, and not much in the way of commentary.” 3

  In 1971, both of her panel presentations were converted into published law journal articles, becoming her first journal articles on gender equality; these were a precursor to the tsunami of articles about gender and law that flooded law journals over the remainder of the decade.

  In the spring of 1971, Professor Ginsburg taught her first seminar on sex discrimination and the law. The course had a practicum component, which involved her students in actual cases that had begun to appear on the docket of the American Civil Liberties Union’s New Jersey affiliate. Auspiciously, in the spring and summer of 1971, she also worked on two briefs with the national office of the ACLU. The first brief (which she later designated “the grandmother brief”) was for an appeal to the federal Court of Appeals for the Tenth Circuit on behalf of Charles Moritz, a dutiful son of an aging and infirm mother. Moritz challenged a provision of the Internal Revenue Code that provided a tax deduction to employed persons for the cost of providing care to their dependents while they worked—unless they were, like Moritz, single men. The second (or “mother”) brief was filed in the United States Supreme Court on behalf of Sally Reed, a bereaved mother who sought to administer the small estate of her deceased teenage son. She was denied appointment, and the boy’s father was appointed instead, as the law of Sally’s state, Idaho, demanded: it preferred men to women as administrators of the estates of relatives who died without leaving a will.

  In the first brief, Professor Ginsburg developed a powerful argument in favor of gender equality under the equal protection component of the Fifth Amendment. The second brief honed and extended that argument, this time under the Fourteenth Amendment’s explicit equal protection guarantee. These briefs helped catapult Ginsburg into the role of foremost litigator before the Supreme Court on behalf of equality of the sexes. The case, Reed v. Reed, decided on November 22, 1971, stands today as an historical landmark: the first time in history that the Supreme Court invalidated a sex-based statute under the Equal Protection Clause. (A few months after Reed, the Tenth Circuit similarly struck down the dependent-care gender classification in the tax law, giving Charles Moritz his tax deduction.)

  Just weeks after Reed was decided, the ACLU voted to establish a Women’s Rights Project, which commenced operation in the spring of 1972. Ginsburg agreed to serve as its coordinator. The following year, she was designated one of three general counsel to the ACLU, a position she held until the end of the decade.

  Meanwhile, Columbia University Law School, from which Ginsburg had graduated at the top of the class thirteen years earlier, hired her as the first tenured woman law professor in its 114-year history. (Justice Ginsburg calls 1972 “the year of the woman” in legal academia—law schools around the country were scrambling, under pressure from the Department of Health, Education, and Welfare, to add women to their almost entirely male faculties.) Although she taught standard law school courses such as civil procedure at Columbia, as she had at Rutgers, she also imported the seminar model she had initiated at Rutgers, teaching Columbia law students about gender and law and engaging them in actual litigation and legislation projects relating to gender issues.

  Also in 1972, Ginsburg undertook, with Professors Herma Hill Kay of the University of California, Berkeley’s law school and Kenneth Davidson of the State University of New York at Buffalo, to produce a casebook (as law-teaching textbooks are known) on sex discrimination and law. That casebook, Sex-Based Discrimination: Text, Cases and Materials, was published in 1974. The first such work in the United States (and, quite probably, the world), it became an important resource for students and professors in the rapidly proliferating women-and-law courses at law schools across the nation.

  Ginsburg contributed three chapters to the casebook. Chapter 1 addressed women’s legal history under the Constitution, the Equal Rights Amendment, and the new direction in which the Supreme Court was heading in its application of equal protection principles in sex discrimination cases (the chapter included the texts of the decisions in Moritz, Reed v. Reed, and the second of Ginsburg’s pathmarking Supreme Court cases, Frontiero v. Richardson [1973]). Chapter 4 explored the myriad ways women and girls experienced discrimination in educational institutions, from sex-based admissions policies to exclusion from high school sports teams to expulsion of pregnant girls from school. Chapter 6 provided a “comparative side-glance” at the United Nations’ declarations on gender equality and the Swedish model for eliminating women’s inequality.

  Over the course of the decade, Professor Ginsburg would publish more than twenty-five legal articles chronicling and critiquing the unfolding law, constitutional and otherwise, on gender equality—law that she herself did so much to shape. Under the ACLU’s aegis, she would mastermind briefs submitted in twenty-four Supreme Court cases, nine on behalf of litigants and fifteen as friend-of-the-court, or amicus curiae, briefs. On six occasions, she appeared before the Court to present oral argument. She lost just one case. Through her briefs, starting with Reed, she, more than any other lawyer, shaped the legal arguments reflected in the Court’s opinions, earning her the honorific “the Thurgood Marshall of the women’s movement.” By the time she left teaching and litigation for a judgeship on the federal appeals court for the District of Columbia Circuit in 1980, state and federal law had undergone a revolution.

  But the story of Ruth Ginsburg’s contribution to the Supreme Court’s equal protection d
octrine in gender discrimination cases did not end when she became a judge. In 1996, during her third Term on the Supreme Court of the United States, Justice Ginsburg authored the majority opinion in United States v. Virginia on behalf of six members of the Court, clarifying and strengthening the approach to gender equality that the Court had developed, under her tutelage, in the 1970s.

  Ginsburg’s own words about gender and law in the 1970s—in briefs, articles both scholarly and popular, congressional testimony, and interviews and speeches—could easily fill a large tome. Here, we offer some selections reflecting the scope, substance, and style of those varied communications.

  We begin with Professor Ginsburg’s “Women and the Law: A Symposium Introduction,” because it captures the moment when she entered the legal fray at the beginning of the seventies—back when the subject of human rights for women was nowhere to be found in law casebooks and classrooms, precious few federal courts took sex discrimination seriously, and the feminist legal movement had not begun to barrage the Supreme Court with requests to review gender-based laws and government policies. The second offering, “How the Tenth Circuit Court of Appeals Got My Wife Her Good Job,” written by Martin (Marty) Ginsburg—Ruth Ginsburg’s “life partner,” as she often called him—tells, with his characteristic wit and humor, the story of how those first two cases, Moritz and Reed, came about. Next we offer an example of lawyer Ginsburg’s brief-writing on behalf of women’s equality—an excerpt from one of her briefs in the Frontiero case—followed by a piece titled “The Need for the Equal Rights Amendment,” in which she refuted the “three horribles” foretold by the ERA’s opponents. Then comes the capstone: the “bench announcement” (an oral précis of Supreme Court opinions for press and public) for United States v. Virginia, Justice Ginsburg’s most significant opinion on the constitutional equality principle as applied to gender distinctions. The chapter concludes with a 2008 journal article, “The 1970s New Look at the Equality Principle,” her reflections on “what that 1970s effort entailed.”