Just days ago, on Thursday evening, the National Constitution Center awarded the 2020 Liberty Medal to Justice Ruth Bader Ginsburg. At the justice’s request, we recorded her favorite opera singers and special friends offering personal tributes in words and music. The tribute video is a moving, inspiring, and now heartbreaking celebration of her achievements as one of the most influential figures for constitutional change in American history.
In her acceptance statement, Justice Ginsburg said the following:
It was my great good fortune to have the opportunity to participate in the long effort to place equal citizenship stature for women on the basic human-rights agenda. In that regard I was scarcely an innovator. For generations, brave women and enlightened men in diverse nations pursued that goal, but they did so when society was not yet prepared to listen. I was alive and a lawyer in the late 1960s, and the decade commencing in 1970. Conditions of life had so changed that audiences responded positively to pleas that society—men, women, and children—would be well served by removing artificial barriers blocking women’s engagement in many fields of human endeavor, from bar membership to bartending, policing, firefighting, piloting planes, even serving on juries. Helping to explain what was wrong about the “closed-door era” was enormously satisfying.
I first met Justice Ginsburg nearly 30 years ago, when I was a young law clerk on the U.S. Court of Appeals for the D.C. circuit, working for another judge. She and I met in an elevator, bonded over opera, and developed a friendship that was one of the greatest honors of my life. With the justice’s permission, a selection of our conversations over the years was published as a book, Conversations With RBG, last November. But perhaps the most personal conversation we ever shared has not yet been published, although the justice copyedited and approved it for publication in preparation for the forthcoming paperback edition.
The conversation took place in December, when Justice Ginsburg and I met at the National Museum of Women in the Arts for a performance of The Notorious RBG in Song, a song cycle written by her daughter-in-law, Patrice Michaels. After the performance, the justice joined me onstage, and I asked her about each of the nine texts that Patrice had set to music to illustrate different aspects of her life. In the conversation, the justice reflected on her own experiences with grief, which allowed her to empathize with the grief and struggles of others. Above all, in her words we see her astonishing courage and conviction. In battling illness, sexism, and discrimination, she never allowed herself to be distracted from her path of creating what she called a more “embracive” Constitution—one that embraced previously excluded groups, including women, people of color, immigrants, and the LGBTQ community—not just grudgingly, as she put it, but with open arms.
An edited transcript of our conversation follows.
Jeffrey Rosen: It was so inspiring to hear Patrice’s spectacular songs. And I’m so excited just to go through them with you, because she set to music such significant words from your life. Let’s start with Justice William O. Douglas’s letter from 1943: “When you say you have no available graduates whom you could recommend for appointment as my clerk, do you include women? It is possible I may decide to take one, if I can find one who is absolutely first-rate.” Was Douglas unusual in this attitude? Did he actually take some women? And tell us about the other women who were pathbreakers in that era on the Supreme Court.
Ruth Bader Ginsburg: Justice Douglas’s clerks were chosen for him by West Coast law-school deans. In the year 1943, we were at war. Most of the men were in service, so when Justice Douglas was told, “We have no one this year to recommend to you,” he asked, “Have you considered women?” He engaged a clerk that year named Lucille Lomen. She was an excellent clerk, but no other woman clerked at the Court until 1968, when Justice Black engaged Margaret Corcoran.
She was a special case. Her father was a prominent Democratic politician, known around town as “Tommy the Cork.” The clerkship didn’t work out altogether well. The justice told Margaret, “I want you to go over X number of petitions for review during the weekend, and summarize them for me.” She replied, “This weekend my father is appearing at a number of fundraisers. He’s a widower, as you know, and needs a woman to accompany him.” Justice Black didn’t take kindly Margaret’s failure to complete her assigned work on the petitions for review. Then, in 1972, the West Coast deans picked two women to clerk for Justice Douglas. Nowadays, we have four clerks; in those days, they had two. Douglas’s reaction? “That’s women’s lib with a vengeance.” It wasn’t until the ’70s that women began to show up in numbers at the Court, and that was typical of the way things were.
Rosen: Now we come to “Celia, an Imagined Letter From Friday, August 12, 1949.” The advice that your mother gives you in this letter is advice that you often repeat. In our conversations, I asked you how you were actually able to follow it. Your mother told you, in Patrice’s imagined letter, “Don’t give into emotions—stay strong! Be independent; prepare for difficulty; stand on your own two feet, like Eleanor Roosevelt.” What was the context for when she gave you that advice?
Ginsburg: My mother’s advice was, don’t lose time on useless emotions like anger, resentment, remorse, envy. Those, she said, will just sap time; they don’t get you where you want to be. One way I coped with times I was angry: I would sit down and practice the piano. I wasn’t very good at it, but it did distract me from whatever useless emotion I was feeling at the moment. Later, I did the same with the cello. I would be absorbed in the music, and the useless emotion faded away.
Rosen: When we talked in an earlier conversation about that advice, I said, “This is the advice of the great wisdom traditions, but it’s so hard to achieve in practice.” You said, “Yes.” “How do you actually do it?” I asked. And you said, “I realize if I don’t do it, I’ll lose precious time from productive work.”
Rosen: Every day, when I feel that I might lose my temper, or feel anger or jealousy or envy, I think, What would Justice Ginsburg do? WWRBG do? I try to restrain myself and find serenity. So I want you to say more about how you actually do it. Famously, you go to the gym to work out. How do you practice serenity in your mind? Do you meditate?
Ginsburg: No, but I do follow advice I’ve often repeated, my mother-in-law’s advice on the day I was wed. We were married in my mother-in-law’s home. She took me aside just before the ceremony to tell me the secret of a happy marriage. The secret was: “It helps sometimes to be a little deaf.” I have followed that advice assiduously in every workplace, even in my current job. If an unkind word is said, I just tune out.
Rosen: I’ve practiced that advice as well. But I have to ask you more about this life lesson, because everyone who has heard you describe it wants to know how to practice it. So let me ask you more about the context when your mother was talking about this. You had just lost your sister, Marilyn, only 6, gone. And your mother told you always to move on, don’t be trapped by grief, and always to focus on doing your work and on your path.
Ginsburg: I don’t have any memories of my sister; I was not yet 2 when she died. But she was a presence in my growing-up years. For my parents, having a 6-year-old who died of meningitis was a tragedy they could not overcome. There was no penicillin for her, not even the sulfur drug. To watch a child suffer and die is something that stays with parents forever.
Rosen: You also lost your mother when you were in high school. How did her advice, given to you in high school, to be independent—be a lady, be like Eleanor Roosevelt, master your emotions—carry you forward as you faced those challenges for which she could not have prepared you?
Ginsburg: Her advice was to be independent. It would be very nice if you met Prince Charming, married, and lived happily ever after. My mother said, “Always be prepared to be self-standing, to fend for yourself.” Her advice came at a time when most wives were considered properly dependent on their husbands. If a man’s wife worked, that reflected adversely on him. There is a line in [Patrice’s] song cycle: “Be nice to Jane; her mommy works.” Jane was regularly invited for playdates and weekends by her classmates. There was an enormous change from the birth of my daughter to the birth of my son, 10 years later. In the ’50s—Jane was born in 1955—there were very few working moms. Ten years later, when my son was born, a two-earner family was not at all unusual. There was a sea change in the way people were ordering their lives in that 10-year span.
Rosen: And some of that change took place after you went to law school and cared for Jane. The third song, “Advice From Morris,” is so powerful. Your father-in-law, Morris Ginsburg, told you, “If you really want to go to law school, you will stop feeling sorry for yourself, and you will find a way to do it. Your attitude should be ‘I will somehow surmount this. I will find a way to do what I want to do.’” Your astonishing self-discipline and focus and determination are awe-inspiring. Did he help you cultivate that?
Ginsburg: Yes, that advice has aided me enormously. In 1954, I was overjoyed that I was going to have a child the next year. But I also worried about managing the first year of law school with an infant to care for. Father’s advice was “If you don’t want to go to law school, no one will think the less of you. But if you really want to become a lawyer, you will stop feeling sorry for yourself; you will find a way.” Following that advice at important turns in my life, I ask myself, Do I really want this? And if I do, I try to find a way. When pregnant with Jane, I asked everyone I knew, wherever I was, “Do you know a nanny in the Boston area?” As luck would have it, there was a young couple in Cambridge in the process of divorce. They were moving from the Boston area, and had to give up their wonderful New England nanny, who took good care of baby Jane for the next two years.
Rosen: Before we leave this period, you were so astonishingly self-possessed early on. Did you feel as if all of these life lessons were instilled by your mother? Or were there important ones that came after, for which your mother did not and could not have prepared you?
Ginsburg: Perhaps it began when my mother was dying. She wanted me to do well in school. So I would sit in her bedroom and do my homework, concentrating on that work. At Cornell, there could be a dorm room full of young women talking or playing bridge or whatever. I could sit there with my notes and wasn’t distracted.
Rosen: She had that, too, as we learned from her reading while walking on the streets of the Lower East Side, falling down, and breaking her nose!
Rosen: And your clerks told me last year that you were celebrating a birthday in chambers, and you were working, and after 10 or 15 people gathered in the room to celebrate, you looked up in surprise, because you hadn’t even noticed that anyone had come into the room.
Rosen: That focus is very important for being productive and achieving your goals.
Ginsburg: Yes. Take my day in law school. Our nanny came in at 8 o’clock and left at 4 o’clock. I used the time in between classes to study, to read the next day’s assignment, but 4 o’clock was Jane’s time. We went to the park, played games, sang silly songs.
When she went to sleep, I went back to the books. I had to make the most of the time I had. I couldn’t waste time. It got even harder when my husband, Marty, had cancer, in his third year of law school, my second year. He needed me to help him get through that trying time. That’s when I began to stay up all night. It’s not a good habit. It’s not a habit I would urge anyone else to have.
His routine was he’d have radiation, come home, become very sick, go to sleep, get up about midnight. Whatever food he could eat for the day, he ate between midnight and 1 o’clock. Then he would dictate his senior paper, and after he went back to sleep around 2 o’clock, that’s when I would begin to do my own work. Working at night, there are no distractions. The telephone doesn’t ring. And I also noticed what law-firm life was like. Marty worked for a large law firm. It was known as a sweatshop, as many of them were, but in the tax department, which he headed, everyone was out by 7 o’clock. I observed what was going on, people staying around all day, taking time out to read the newspaper, having lunch off premises. They were not totally focused on their work. It turned out well for me that I had the ability to concentrate and not waste time.
Rosen: The next song is “On Working Together,” and it’s the story of the Moritz case, which is now immortalized in the wonderful movie On the Basis of Sex.
Ginsburg: Yes, the script was written by my nephew.
Rosen: And it’s great that you’ve got your daughter-in-law doing the song cycle. It’s very good to keep artistic endeavors in the family.
Ginsburg: When my nephew, Dan, visited me and said he would like to do a script on the Moritz case for a movie, I said, “Why did you choose that case? The Supreme Court didn’t take it.” He replied that he wanted his script to be as much the story of a marriage as the story of the development of a legal strategy.
Rosen: There’s one factual question I have to ask from the song. Marty sings in the song, “Her room was bigger.” Was it?
Ginsburg: Not true.
Rosen: Not true. I’m sorry.
Ginsburg: No, Marty worked in the dining room. It was a large room, lined with tax books. I worked in our bedroom. He occupied the bigger room.
Rosen: What’s so extraordinary, hearing you talk about these cases, is that they’re real to you. You’ve kept in touch with the people involved, and you display such an extraordinary empathy and concern for them.
Ginsburg: May I say something about what was happening in the ’70s?
Rosen: Yes, you may.
Ginsburg: None of the cases in which I participated in the ’70s were test cases. They weren’t staged cases. We weren’t searching for plaintiffs. There was a revived feminist movement. People were alert to the unfairness of drawing lines on the basis of gender, and they began to complain. One group of complainants comprised schoolteachers forced out of the classroom as soon as their pregnancies began to show. As one school superintendent put it, “We can’t have the children thinking that their teachers swallowed a watermelon.”
The women were put on what was euphemistically called “maternity leave.” It was unpaid leave. There was no guaranteed right to return. Women once accepted forced leave, but in the ’70s, they stopped accepting. They said, “This isn’t right. We should not be forced out of the classroom at four or five months when we’re ready, willing, and able to work until the ninth month.”
Eventually, the Supreme Court addressed the question: Is pregnancy discrimination discrimination on the basis of sex? The Court answered no. The world is divided into nonpregnant people—and they include most women—and pregnant people. All of them are women. How can that be sex discrimination? People from across the political spectrum agreed that the Supreme Court got it wrong. The result of their lobbying effort: the Pregnancy Discrimination Act, passed at the end of the ’70s. It was the soul of simplicity. The law said discrimination on the basis of pregnancy is discrimination on the basis of sex.
Changes were occurring in the university world. When I attended law school, I was one of nine women in an entering class of over 500. In the early ’70s, women started enrolling in law school in numbers. And when women were there in numbers, no longer as one-at-a-time curiosities, other women were encouraged to enroll. Their attitude: So many women are doing it; we can do it too. Today, at least 50 percent of law-school entrants are women.
Rosen: This is a hard question, because it’s hard to know the sources of one’s own character, but the extraordinary empathy that you have demonstrated for the plaintiffs that you have represented, and for your law clerks, and for your family, and for your friends, is one of the many striking features about you. Where did that empathy and concern for others come from?
Ginsburg: It may have begun when I appreciated how much my parents were affected by the death of my sister. So I knew what it was like to grieve. If I had to point to any one thing, I’d say it was growing up with an understanding of what it means to have a devastating loss in one’s life.
Rosen: And you can feel other people’s pain, is that right? You’re alert to the real challenges the people that you work with and represented face.
Ginsburg: Yes, if I can do something to make someone feel a little better, of course I should do it. Or at least, to feel they are not alone, that other people have encountered the same terribly trying situation and have made it through. I know it certainly helped me in my cancer bouts. I had the support and advice of another empathetic person, Sandra Day O’Connor, who had had a mastectomy. She was on the bench nine days after her surgery. When I had colorectal cancer, she gave me some very good advice about how to handle it, including “Schedule the chemotherapy for a Friday, that way you’ll get over it during the weekend and be back in court on Monday.” And she said, “Now, I know you like to acknowledge any gift that you get. There are going to be hundreds of people writing to you. Don’t try to answer any of the correspondence. Just put it aside, and do the Court’s work.”
Rosen: You love music so much, and you relate to it in such a powerful, intimate way. You told me that it takes you outside of yourself, and when you listen to music, then you can’t think about the briefs and writing that you have to do, but you just focus totally on the music. So I want to ask, how did you feel when you heard your great dissents set to music, in the song we just heard, “Dissenter of de Universe”?
Ginsburg: I think it’s a wonderful, wonderful piece. I should say that “Notorious R.B.G.” was started by a second-year student at NYU School of Law, who followed my mother’s advice. She started it when the Shelby County case took the heart out of the Voting Rights Act of 1965. She was angry. And then she recognized that anger is not a productive emotion; she was going to do something positive. She took not my lengthy dissent, but the bench announcement I read. Normally, dissents are not read from the bench. The author of the majority opinion will say, “And so-and-so dissented.” If you think the Court not only got it wrong, but egregiously so, then you will want to call attention to the dissent by summarizing it from the bench. That’s what I did in the Shelby County case. The NYU student put my bench announcement on a Tumblr. And then it took off into the wild blue yonder.
Rosen: [Laughs.] It certainly did.
Ginsburg: She decided on Notorious R.B.G. after the well-known rapper, the Notorious B.I.G. We had something important in common. We were both born and bred in Brooklyn, New York. I think “Notorious R.B.G.” took off because young people were yearning for something hopeful. Something positive. In my long life, I have seen many changes. Changes for the better. The most important is that we are now using the talent of all of the people, not just half of them.
Rosen: And that’s largely thanks to you.
Ginsburg: No. I was just fortunate to be around at the right time. Women, and some men, forever, have been saying the same thing. But society wasn’t ready to listen until the ’70s. Many things were working in favor of change. For one thing, people were living a lot longer. A woman would spend most of her life with no child-care responsibilities. For another, in the ’70s, there was inflation. So if you wanted your family to prosper, you would need two earners. And then, taking care of a home was easier than it was before we had labor-saving devices. So many things were working in favor of change. I was there, and a lawyer, and able to take part in the movement for recognition of women’s equal citizenship stature.
Even in the ’60s, the separate-spheres mentality held sway. Think of Hoyt v. Florida, when the “liberal” Warren Court said it’s okay to keep women off juries, because they are the center of home and family life. The Court didn’t appreciate that citizens have obligations as well as rights. One obligation is to participate in the administration of justice by serving on juries. Men have no automatic exemption, because they are needed, but the women are expendable. They’re not really necessary. That attitude persisted into the ’60s.
But in the ’70s, as I said earlier, there was a sea change. The turning-point gender-discrimination cases were decided when Warren Burger was the chief justice. He presided over a Court labeled “conservative.” In the ’70s, I was speaking to an audience more prepared to listen than those in earlier periods.
The notion until the ’70s was that the differentials based on gender riddling the law books operated benignly in women’s favor. So women were excused from jury duty—well, that was a favor. Who would want to serve if they didn’t have to? Michigan’s law saying women couldn’t be bartenders—that was a favor, because bars could be pretty raunchy places. Laws like that were rationalized as operating to favor or protect women. The challenge for me was to get the judges to see that, far from operating benignly in women’s favor, these laws, as Justice Brennan said so well in Frontiero, put women not on a pedestal, but in a cage.
Rosen: But it wasn’t only that things changed in the ’70s. It is remarkable that when you were nominated in 1993, soon after you and I met, in ’91, the magnitude of your achievements as the Thurgood Marshall of the women’s movement—as President Clinton was able to say when he nominated you, quoting the dean of Harvard Law School—wasn’t appreciated even by some women’s groups. Some fundamental changes have taken place in our society between 1993 and today that have made people appreciate the magnitude of your achievements on behalf of gender equality. They include the #MeToo movement, the increased presence of women in the workplace, the mobilization of young women who look to you as a hero. How do you account for the fact that society now recognizes the magnitude of the importance of the work you did in gender equality today, in a way that it didn’t even 20 years ago?
Ginsburg: There is heightened recognition today, but my efforts were noticed in ’93 by the president who nominated me.
Rosen: [Laughs.] They were indeed. He did notice them. But the Tumblr, the pop-culture celebrity, the fact that you’re rightly viewed as one of the greatest figures of constitutional change of the 20th century—this has happened more recently, in the past 10 or 15 years. What social changes do you think are most important in sensitizing America to the crucial importance of gender equality?
Ginsburg: As I said, “Notorious R.B.G.” was created by a second-year law student determined to use her energy in a productive way. My story is hopeful. It leads one to be optimistic about the future. I have often repeated this question and response: “What’s the difference between a bookkeeper in the garment district and a Supreme Court justice? One generation.” My own life bears witness, comparing the opportunities open to my mother and those open to me. The change is exhilarating, and it’s permanent. We are never going to go back to the days when women were not seen in decision-making arenas.
Rosen: Your optimism is so inspiring, and when we talked last July, for the last interview in the book, I asked you whether you were optimistic or pessimistic about the future of the Supreme Court, and whether the 5–4 decisions where you were in the majority would be overturned, and you said you were skeptically hopeful.
Rosen: Are you still skeptically hopeful?
Ginsburg: Yes. Recall that when I was growing up, lynchings were still going on in the United States. My childhood was in the World War II years. We were fighting a war against odious racism, and yet our troops going into that war were rigidly separated by race. Yes, we have a long way to go, but how far we have come.
Rosen: This is a time when many people say that things have not been worse for a long time. And not only in the United States, but around the world we’re seeing waves of populism and nationalism that are threatening the constitutional values that you have defended so eloquently. Why are you optimistic, and why do you believe that we will emerge from these anxious times with those constitutional values intact?
Ginsburg: Because we have in the past. And we will again. Our country has gone through some very bumpy periods. But, I’ll tell you the principal reason why I’m optimistic: It’s the young people I see. My lawyer granddaughter, my law clerks, are determined to contribute to the good of society. And to work together. So the young people make me hopeful. They want to take part in creating a better world. Think of Malala. Think of Greta Thunberg in Sweden. What is she, 15, 16? Yes, I’m putting my faith in the coming generations.
Rosen: And what will you say to them? What must young people do to preserve the values of justice and freedom and democracy?
Ginsburg: They must work together. Many of them are. I’ve talked to young people about the importance of getting out the vote. For democracy to flourish, the society must not be one in which people say, “Why bother voting? It doesn’t make any difference.” One of my former law clerks, along with like-minded people, is endeavoring to get every 18-year-old registered to vote.
Rosen: You were not a great fan of Learned Hand, who unwisely turned you down for a clerkship because you were a woman, but he did say something meaningful.
Ginsburg: He was one of the greatest federal judges of all time despite his blind spot. He said, ‘When liberty is lost in the hearts of men and women, no court can restore it.’
Rosen: Exactly right. Do you believe that?
Ginsburg: Yes. He said it in a speech to a group of new citizens sworn in at Central Park in New York. He talked of liberty residing in the hearts of a society’s men and women.
Rosen: Liberty lies in the hearts of men and women.
Ginsburg: Yes, courts are not leaders in social change. They follow after movement in the larger society. That was true with respect to racial justice. It’s true, now, with the women’s movement. It’s true with the LGBTQ movement. How long that discrimination lingered when people were hiding in closets. Change occurred only when they came out and said, “This is who we are, and we’re proud of it.” Once they did that, changes occurred rapidly.
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