What We Can All Learn from Ruth Bader Ginsburg

What We Can All Learn from Ruth Bader Ginsburg

This blog is part of a series paying tribute to the life and legacy of Justice Ruth Bader Ginsburg, who passed away in September of 2020. To read the rest of the series, click here.

 

My husband came running from his den, shouting something unintelligible. I stopped my work and looked up as he ran in. He said, “RBG died.” All I could do was stare at him. As one of Justice Ruth Bader Ginsburg’s many law clerks, and one of four who clerked for her in the 2001 Term, I felt a tremendous loss: historical, political, and personal.

The past year has been the abyss of hell. From wildfires raging across the American West and the continent of Australia, to the Covid-19 pandemic, to social upheaval triggered by the brutal police killing of George Floyd, to, now, the fight for our fundamental institutions, it has been almost too much to bear. And RBG’s death was another devastation. The nation lost a scholar, a champion of equal rights, an exemplar of civility, and a public servant of the highest order. I lost one of the most important mentors in my life. With 119 of my fellow law clerks, I stood vigil over her casket in Washington in September.

Since then, I have thought about RBG’s life and the things I learned from her. Back when I clerked for her in 2001, she was not yet the “Notorious RBG” of pop culture fame. She was instead an insider’s icon: a legendary litigator and jurist, one of the first women to attend Harvard Law School (and the mother of a young daughter on top of that), co-founder of the Women’s Rights Project (WRP) at the ACLU, the first tenured woman at Columbia Law School, and of course, the second woman—and the first Jewish woman—to serve on the nation’s highest court.

Tracing the arc of someone’s life and examining their choices, relationships, education, and career path are our usual reactions to the death of someone notable. In RBG’s case, the results of such study are almost overwhelming, but I focus in this essay on five lessons I learned from her.

1. Persist.

Harvard Law School’s (HLS) class of 1959 was the first to include women. When RBG arrived at Harvard in the fall of 1956,[1] there was only one women’s room on campus, hidden in the basement of a classroom building, as if to remind Ruth and the other women in her class—nine in a class of five hundred—that they were an afterthought or an asterisk, studying by the grace of the male administrators who had reluctantly allowed them to enroll.[2]

Among the reluctant was the Dean of HLS himself, Erwin Griswold. After inviting the nine women to dinner at his home that year, Griswold asked each of them bluntly: “Why are you at Harvard Law School, taking the place of a man?” RBG, twenty-three years old and married to Martin Ginsburg, a second-year student at HLS, replied that she felt it was important for women to learn about the work of their husbands. Whether an early example of her brilliant tactical mind or a secret joke, it is impossible to know.

She went on to prove Griswold’s doubts wrong. During her 2L year, Marty was diagnosed with testicular cancer, a virtual death sentence in the late-1950s.[3] RBG doubled down, studying into the wee hours, conscripting Marty’s classmates to copy their notes for him, continuing to excel in her own courses, and serving as an editor of the Harvard Law Review. After Marty landed a job in New York City, RBG transferred to Columbia Law School, where she graduated at the top of her class.

RBG flourished in law school despite Dean Griswold’s challenge to her presence, proving that she was not just brilliant but also a person of formidable character—a “woman of unbelievable steel,” as the journalist Nina Totenberg would later describe her.[4]  That steel would allow her to persist—and to prevail—as she set the path for other women to follow. Lesson: Don’t give up, even if people say you can’t succeed.

2. Be creative.

The roadblocks did not disappear when RBG crossed the graduation stage in New York in 1959. Despite her qualifications—an immaculate resume and recommendations from Columbia professor Gerald Gunther, the famous constitutional law scholar, as well as Albert Sacks (an HLS professor who would later be Dean)—RBG was rejected for federal clerkships at both the Second Circuit and the Supreme Court. The judges who rejected her did not bother to conceal their prejudice. Judge Learned Hand (whom Gunther himself had clerked for) chafed at the thought of having to filter his language around a female clerk. Justice Felix Frankfurter’s response was even curter: “I’m not hiring a woman,” he reportedly said.[5]

RBG eventually landed a clerkship with Judge Edmund Palmieri at the U.S. District Court of the Southern District of New York. Afterward, in 1961, RBG received job offers from New York law firms, but she took a chance instead on a research position at Columbia’s Project on International Procedure,[6] for which she co-authored a study on Swedish civil procedure.

It was a fortuitous decision. Arriving in Sweden at age 29, RBG found herself in the middle of a feminist revolution,[7] the old divisions between men and women already beginning to crumble. “My eyes were opened up,” she later said of the experience.[8] Looking back across the Atlantic, RBG began to grasp the gender caste system that existed in her own country. “I guess I knew inequality existed,” Ginsburg said in a 2014 interview, “but it was just part of the scenery. It was the way things were.”[9]

When RBG challenged the American system of gender inequality as an ACLU attorney in the 1970s, sex discrimination was pervasive: women could not obtain loans without their husbands’ signatures (single women were forced to pay usurious interest rates on the fear that they would marry men with bad credit), women could not go to bars or restaurants alone (because, of course, any single woman in a bar was a sex worker), women could not join the professional and civic organizations that facilitated men’s careers, and so on.[10] Inequality was woven into the fabric of the law in forms both subtle and blatant, and, of course, the nine justices of the Supreme Court were all men.

RBG would argue before those men six times[11] between 1973 and 1979. To persuade the justices that gender-based legal classifications were arbitrary and inherently undesirable, RBG thought creatively, carefully picking the laws that she challenged and famously targeting some that were unfairly slanted against men.[12] By the end of her time as a Supreme Court litigator, RBG and her fellow advocates had persuaded the Court that sex was a quasi-suspect classification—that no law could discriminate between people based on their sex unless it was closely related to achieving an important governmental end.[13]

RBG’s most auspicious decisions, from studying in Sweden to founding the WRP and using male plaintiffs to dismantle the structure of male supremacy, were also her most unorthodox. Lesson: Do not be afraid to follow your interests, even if it means taking a pay cut, and even if you are uncertain where those interests may take you.

3. Respect everyone.

Of all the bosses she had as a lawyer, law professor, and judge, RBG maintained that Chief Justice William Rehnquist “was hands down the fairest and most efficient.”[14] It is a mark of her fair-mindedness that, no matter how barbed an issue, RBG’s respect for her colleagues never decreased from a legal disagreement. RBG put a premium on maintaining collegial relationships with the other Justices, not only because when you and all your colleagues are appointed for life, you need to be able to get along,[15] but also because she truly valued them as individuals.

During her time as a judge on the D.C. Circuit, RBG became close friends with Antonin Scalia, the famously conservative judge (and later Justice) with whom she disagreed on many important issues. This “odd couple” friendship between Scalia and Ginsburg has generated a great deal of commentary over the years, perhaps because, in these polarized times, we long to believe in the possibility of real friendship based on mutual respect and liking, regardless of group identity or political affiliation.

And their friendship was a true one. Marty and Ruth spent New Year’s Eve with Antonin and Maureen;[16] Antonin and Ruth both loved the opera and attended it together (famously serving as extras in a production of Ariadne auf Naxos).[17] They vacationed in the South of France together.[18] One of the most iconic photos of RBG’s life is that of her and Justice Scalia sitting on top of an elephant during a trip to India in 1994.

RBG also valued Justice Scalia as a legal opponent. In her autobiography, RBG fondly recalls Scalia’s dissent in United States v. Virginia,[19] for which Ginsburg wrote the majority opinion. She described it as a “zinger,” a blistering critique that “took me to task on things large and small.”[20] RBG savored Scalia’s opposition because, while opinions were in draft, his views exposed weaknesses in her own—the “applesauce”[21] and “argle-bargle”[22]—perhaps more probingly than any comments made by her liberal colleagues. “Justice Scalia homed in on the soft spots,” Ginsburg recalled, “and gave me just the stimulation I needed to strengthen the Court’s decision.”[23]

RBG serves as a role model in these partisan times. We do not have to let political differences prevent us from recognizing each other’s humanity and dignity. Lesson: Approach everyone with humility and an open mind; you never know who will teach you important things.

4. DO sweat the details.

Readers of RBG’s opinions, even those who disagree with her on matters of substance, generally agree that she was an adept writer: clear, concise, and provocative when need be. She had help along the way. As an undergraduate at Cornell, RBG received a master class in prose style from the famed novelist Vladimir Nabokov. Above all, Nabokov taught her the importance of word choice.[24] By the time she was a federal judge, RBG’s focus on grammar and syntax was nothing short of surgical.

I learned this myself early in my clerkship. The vast majority of judges ask their clerks to write “bench memos”: memos that review the facts of the case, summarize the arguments of parties and amici, delve into the record and the procedural history, and elaborate on the legal research. In my first clerkship, however, with Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit, I never wrote a bench memo. He wanted his clerks to give oral argument on all sides of the case. I worked incredibly hard to prepare, and then he and I would sit and talk for hours about each case.

Thus, the very first bench memo I ever wrote was for Associate Justice Ruth Bader Ginsburg. She hated it. Rather than berate me or leave me to fix it on my own, however, she instead put on her professor cap, marked up my memo (I had never seen anything I had written covered with so much red ink), and sat me down at her office table to explain her corrections, section by section, paragraph by paragraph, sentence by sentence, word by word. She taught me exactly what she wanted in the bench memo, and, in doing so, she taught me to be an immeasurably better writer and legal analyst.

RBG brought this kind of focus and perfection not just to writing, but to almost every aspect of her life. She was a careful listener, drawn to deep conversation, and, as her husband Marty was fond of pointing out, unmoved by glibness and superficiality. She was famous for her long pauses in conversation: “If you ask her a question that requires a thought-through answer, she will stop, think it through and then answer it,” Marty said in a 2004 interview. “She has done that for the fifty-four years I have known her. She still does it at dinner.”[25] In my own clerkship interview, I had to sit on my hands not to speak during the pauses, for I had been warned to let her finish her thoughts.

RBG didn’t just sweat the details of her legal work. She famously sent notes of thanks, condolence, and congratulations. Upon my own marriage, I received a lovely note from RBG featuring a sentence I found moving, having seen her wonderful relationship with Marty: “May you thrive in life’s most important partnership.”

She didn’t have to take time to write notes like this—anyone would have understood that the busy Supreme Court Justice had better things to do. Yet she made the time, even as she was preparing minutely for each case before the Court, drafting opinions of concise perfection, giving countless speeches and interviews in her precise speaking style, and teaching at least one clerk how to write bench memos. Lesson: If RBG could make the time to sweat the details, all of us can.

5. Have a life.

Not everyone has the capacity to work as hard as RBG did, and most of us should not try. Lawyers suffer among the highest rates of mental illness of any occupation,[26] and overwork often contributes to their depression, anxiety, and substance abuse. The message of RBG’s work ethic is not that life is all work and no play. Indeed, RBG attributed her success in law school not to relentless work, but to the constant shuffling, back and forth, between her course work and her duties as a parent. “Each part of my life provided respite from the other and gave me a sense of proportion that classmates trained only on law studies lacked,” she later recalled.[27]

It is true that on occasion Marty had to drag RBG out of her judge’s chambers to come home for dinner at night. But she had a life outside of work. She enjoyed water skiing and reading mystery novels. She rode horses well into her 70s and when asked at age 80 whether she would ever ride again, RBG said she had not “ruled it out entirely.”[28] RBG was also an avid exerciser, able to do pushups through the end of her life. Indeed, RBG once called her longtime personal trainer, Bryant Johnson, “the most important person” in her life (excluding her family). In one of the most moving tributes this year, Johnson honored RBG with a set of pushups when he visited her casket as she lay in state at the U.S. Capitol in September.[29]

RBG said that if she could choose one talent, it would be to have the “glorious voice” of an opera singer.[30] She saw her first opera, “La Gioconda,” at age 11, and never looked back. Opera offered her a much-needed escape from work. “Most of the time, even when I go to sleep, I’m thinking about legal problems. But when I go to the opera, I’m just lost in it,” Ginsburg said in 2015.[31] She was also a great patron and spokesperson for opera.

Even in 2020, with RBG’s death on top of all the other seemingly endless disasters, I have tried to keep RBG’s model of life-work balance in view. While I am not a water-skier (and Alabama’s parks and lakes were shut down for much of the pandemic), I am a gardener. My hours weeding, tending, and planting have kept me sane during a time when—as a lifelong sufferer of major depression—I could easily have lost my grip. If RBG, one of nine Justices with the final vote on national issues such as marriage equality, voting rights, and the death penalty can squeeze in the happy moments that keep us in balance, surely all of us can. Lesson: Be kind to yourself.

 

Heather Elliott: Alumni, Class of ’36 Professor of Law, the University of Alabama School of Law; J.D. 2000, University of California, Berkeley School of Law. In 1999, then-Dean of Berkeley Law Herma Hill Kay recommended me as a potential clerk to Justice Ginsburg. Being hired as a law clerk for the 2001 Term felt like winning the lottery. Many thanks to my OT’01 co-clerks Dave O’Neil, Joe Palmore, and Aaron Saiger for contributing to this essay and to my research assistant Chris Aiken for his extraordinary help in drafting it.

[1].  Women were less than three percent of the legal work force in 1956, and only one woman had ever sat on a federal court of appeals. Ruth Bader Ginsburg, My Own Words, preface by the author, xvi (2016).

[2].  Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World 15 (2015).

[3].  “At that time, about 90 percent of testicular cancer patients died of the disease. Looking back, Ruth Bader Ginsburg does not even allow herself the luxury of the 10 percent: ‘At that time, there were no known survivors,’ she says flatly.” Id. at 17.

[4].  Rebecca Gibian, The RBG Way: The Secrets of Ruth Bader Ginsburg’s Success 104 (2019).

[5].  Hirshman, supra note 3, at 21.

[6].  Hirshman, supra note 3, at 21.

[7].  Id. at 21-22.

[8].  Petula Dvorak, Opinion, Ruth Bader Ginsburg had to leave America to see how unfairly it treated women, Wash. Post (Sept. 24, 2020), https://www.washingtonpost.com/history/2020/09/24/rbg-ruth-bader-ginsburg-sweden-equality-women/ [https://perma.cc/QWR4-UJJQ].

[9].  Id.

[10].  Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78 (2019).

[11].  Ginsburg appeared for the ACLU, amicus curiae, in Frontiero v. Richardson, 411 U.S. 677 (1973).

[12].  See, e.g., Kahn v. Shevin, 416 U.S. 351 (1974) (property tax exemption for widows but not widowers); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (provision of Social Security Acting denying widowers benefits from their deceased wives’ earnings).

[13].  Craig v. Boren, 429 U.S. 190, 197-98 (1976). “Ruth Ginsburg had advised the plaintiffs’ lawyer in that case, submitted an amicus brief for the ACLU, and sat at counsel table for his oral argument to the Supreme Court.” Wendy Webster Williams, Ruth Bader Ginsburg’s Equal Protection Clause: 1970-80, 25 Colum. J. Gender & L. 41 (2013).

[14].  Ginsburg, supra note 2, at 222.

[15].  Supreme Court justices are not always collegial people. Justices Douglas and Frankfurter, who shared the bench for more than twenty years, despised one another almost from the get-go. Frankfurter once called Douglas “the most cynical, shamelessly amoral character I’ve ever known.” The cheekier Douglas liked to poke fun at Frankfurter’s pomposity, noting that Frankfurter, the former law professor, had a habit of lecturing the other justices in precise 50- minute intervals – the length of a class at HLS. Noah Feldman, Opinion, When Arrogance Takes the Bench, N.Y. Times (Jun. 10, 2009), https://www.nytimes.com/2009/06/11/opinion/11feldman.html [https://perma.cc/5G7T-KJP7].

[16].  Joan Biskupic, American Original: The Life and Constitutional of Supreme Court Justice Antonin Scalia 88 (2009).

[17].  Id. at 304-05.

[18].  Chelsey Cox, Fact check: It’s true, Ginsburg and Scalia were close friends despite ideological differences, U.S.A. Today (Sept. 27, 2020), https://www.usatoday.com/story/news/factcheck/2020/09/27/fact-check-ruth-bader-ginsburg-antonin-scalia-were-close-friends/3518592001/ [https://perma.cc/NT3A-FTUS].

[19].  518 U.S. 515 (1996).

[20].  Ginsburg, supra note 2, at 40.

[21].  King v. Burwell, 135 U.S. 473, 507 (2015) (Scalia, J., dissenting).

[22].  United States v. Windsor, 570 U.S. 744, 799 (2013) (Scalia, J., dissenting).

[23].  Ginsburg, supra note 2, at 40.

[24].  See Gibian, supra at 138.

[25].  Ginsburg, supra note 2, at 25.

[26].  Lawson Wulsin, Prevalence rates for depression by industry: a claims database analysis, 49 Social Psychiatry and Psychiatric Epidemiology 1805-21 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557731// (last visited Oct. 29, 2020).

[27].  Ginsburg, Preface to My Own Words, supra note 2, at xviii.

[28].  Adam Liptak, Court is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay, N.Y. Times (Aug. 24, 2013), https://www.nytimes.com/2013/08/25/us/court-is-one-of-most-activist-ginsburg-says-vowing-to-stay.html [https://perma.cc/SWP3-C68K].

[29].  Elena Moore, Ginsburg’s Trainer Honors Late Justice with Pushups at Capitol Hill Memorial, NPR (Sept. 25, 2020), https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/25/916870970/ginsburgs-trainer-honors-late-justice-with-push-ups-at-capitol-hill-memorial [https://perma.cc/KSU9-KVGN].

[30].  Ginsburg, supra note 2, at 43.

[31].  Francesca Zambello, Ruth Bader Ginsburg Loved Opera, and Opera Loved Her Back, N.Y. Times (Sept. 19, 2020), https://www.nytimes.com/2020/09/19/arts/music/ruth-bader-ginsburg-opera.html [https://perma.cc/T4YJ-PLBH]. Zambello directs the Glimmerglass Festival in upstate New York, of which RBG was a frequent attendee.

Recommended Citation: Heather Elliott, What We Can All Learn from Ruth Bader Ginsburg, Calif. L. Rev. Online (Jan. 2021), https://www.californialawreview.org/what-we-can-learn-from-rbg.

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