My Own Words by Ruth Bader Ginsburg • Simon and Schuster • 2016 • 400 pages • $30
Ruth Bader Ginsburg’s first sex discrimination case came to her, improbably enough, from a man. The man who handed her the case was her husband, Martin Ginsburg; the gentleman she represented was a salesman named Charles E. Moritz, who had been caring for his elderly mother. He had been denied a federal tax deduction for which a woman in his situation would have been eligible.
Ginsburg had begun her legal career as an academic, a scholar of procedural law. Only in 1970 did she focus her attention on women’s rights. Marty, a tax lawyer, had discovered the ruling against Moritz that fall while reviewing recent U.S. Tax Court decisions. Certain that it would pique his wife’s interest, he delivered it to her study. The couple took on Moritz’s appeal together, with the backing of the American Civil Liberties Union, and won. The Tenth Circuit Court of Appeals in Denver determined that the sex-based distinction denied Moritz the equal protection of the law guaranteed to him by the Fifth Amendment.
When U.S. Solicitor General Erwin Griswold later asked the Supreme Court to review the decision, he argued that the ruling would have disastrous implications for hundreds of federal laws. As proof, he attached a list of every statute that made a sex-based distinction. The Supreme Court denied Griswold’s petition, leaving the Ginsburgs’ victory intact, and his list became, in her husband’s words, Ginsburg’s “litigation agenda”—a roadmap for her quest to banish sex discrimination in law.
Ginsburg had continued working with the ACLU, co-authoring her first Supreme Court brief on sex discrimination in 1971 while teaching at Rutgers Law School—this time, on behalf of a female plaintiff. By 1976, she was teaching at Columbia Law School while directing the ACLU’s Women’s Rights Project, which she co-founded, and had argued six equal protection sex discrimination cases before the Court, winning five of them. Through carefully curated challenges nudging the Court to make incremental changes, she had transformed anti-discrimination law dramatically.
As of 1971, the Court recognized just two standards of review when hearing a challenge to a law: rational basis and strict scrutiny. The former applies in more run-of-the-mill constitutional challenges; it presumes a law’s validity. To survive rational basis review, a law must only be “rationally related to a legitimate government interest.” Since that language is so broad and ambiguous, in practice, few laws fail this lenient test.
At the other end of the spectrum, when questions of fundamental rights like liberty and privacy are implicated, or when a law targets members of what are referred to as “suspect” classes—those defined by race, national origin, religion, or citizenship—courts apply so-called “strict scrutiny.” Such laws are presumptively invalid. To survive this form of review, a law must be “narrowly tailored” to further “a compelling government interest.”
In the 1970s, Ginsburg tried to persuade the Court to add sex to the list of suspect classifications. In that, she failed. But she succeeded in convincing the Court to apply an intermediate form of scrutiny. Thanks to Ginsburg, law students are now taught about three standards of review: rational basis, strict scrutiny, and intermediate scrutiny, the standard Ginsburg helped create. Under intermediate scrutiny, a law drawing distinctions based on sex is valid only if these distinctions serve “important governmental objectives” and are “substantially related” to the achievement of those objectives.
For example, in 2001 the Supreme Court upheld a law imposing different requirements for establishing maternity versus paternity for a child born to an unmarried U.S. citizen parent abroad—a ruling the court is reconsidering this Term. “In the case of the mother, the relation is verifiable from the birth itself,” Justice Anthony Kennedy wrote for the majority. “In the case of the father,” however, he continued, it is “incontestable” that “he need not be present.” And being present, Kennedy adds drily, “is not incontrovertible proof of fatherhood.” Ginsburg joined Justice Sandra Day O’Connor’s dissent indicting the majority for overlooking sex-neutral alternatives and accepting an inadequate justification for the sex-based distinction.
Two decades later, Justice Ginsburg would announce the Court’s opinion in United States v. Virginia, a challenge to the Virginia Military Institute’s policy of restricting admission to men. By applying intermediate scrutiny, the Court had determined that VMI’s policy violated the Constitution’s guarantee of equal protection despite the fact that the state had created a lesser alternative for women, the Virginia Women’s Institute for Leadership.
Ginsburg refers to the case as “the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints.” It is typical of Ginsburg that she uses impersonal language omitting herself, a leader—or the leader—of that 1970s endeavor though the opinion affirmed, and enhanced, the constitutional bulwark against sex discrimination she conceived. “The heightened standard of review applicable to sex-based classifications,” she explained, “mark[s] as presumptively invalid . . . a law or official policy that denies to women, simply because they are women, equal opportunity to aspire, achieve, participate in, and contribute to society based upon what they can do.”
It is impossible to reduce 83 years, much less 83 Ruth Bader Ginsburg years—her ability to fit several lifetimes into one suggests an eponymous measure of time to be apt—to some 300 pages. But doing so would be unnecessary and even counterproductive. Ginsburg’s clarity of purpose and constancy make representative anecdotes and writings an ideal heuristic for understanding her. It is Ginsburg’s devotion to the longue durée—her careful, consistent work over decades—that establishes her as sui generis.
My Own Words is pure Ginsburg. The book is thoughtfully structured; the writings, carefully curated. In the preface to each of her selected works, Ginsburg lets her collaborators, Mary Hartnett and Wendy Williams—respectively, an adjunct professor and a professor emerita at Georgetown University Law Center—make their own pronouncements about her life and career to give context. The writings that follow, drawn from all epochs of her life, do not explicate but rather exemplify Ginsburg’s approach to navigating and shaping the world. The introductions at the start of each section tell you who Ruth Bader Ginsburg is; Ginsburg’s selections show you.
The selections span 70 years, from 1946 to 2016. They include an editorial Ginsburg penned at just 13 years of age for the school paper, remarks she gave following Justice Scalia’s death last year, and a review of the Court’s last term. The text of the opera Scalia/Ginsburg, a tribute to the pair’s friendship, is also included. And, finally, a lecture on the value of “comparative sideglances,” which is how she refers to her consultation of foreign law and courts, along with a set of remarks on how the U.S. Supreme Court’s decision in Brown v. Board of Education has influenced other countries.
The collection is as comprehensive a portrait of Ruth Bader Ginsburg as one can hope to find, at least until Hartnett and Williams publish their long-planned biography. Even then, My Own Words may retain its edge—it holds the virtue of including both biographical commentary and Ginsburg’s very own thoughts and writings.
Part One serves to humanize the woman now known by a mononym: RBG. Here we find the most personal part of the collection. Ginsburg’s remarks at Justice Scalia’s memorial reveal a great deal about what she values in others, including respect. A set of remarks penned by Marty about his wife in 2003 shows her outside the courtroom, engaging in normal everyday activities—on a blind date with her future husband, in the kitchen, eating bonbons. (Of course, it is not only in his own words that Marty is present here. It is to Marty, who died of cancer in 2010, that Ginsburg dedicated her book; she calls him her “dear partner in life and constant uplifter.”)
The rest of the book focuses more squarely on her career in the justice system. The second part examines her relationships with both her idols and fellow advocates, past and present—Belva Lockwood, Gloria Steinem, Justice O’Connor. Part Three offers the reader insight into how Ginsburg developed, and then acted upon, her convictions about women’s equal rights—as an academic, then as an advocate, and, finally, as a jurist. Part Four covers her path to the Supreme Court through a compilation of her remarks upon her nomination and heading into her Senate confirmation. Finally, Ginsburg provides us with her insights from her time on the bench.
Many of Ginsburg’s writings were edited and updated for this book. Despite the various forms the writing takes and the revisions that have been made to them, Ginsburg’s style shines through. Her most distinctive stylistic indulgence is the sentence fragment. Short declarations take the place of transitions, marking the moment when Ginsburg is done with one concept and moving on to the next. She sometimes punctuates these with commas, but more often deploys an unapologetic period. Ginsburg is patient with the law in all but writing.
Many of Ginsburg’s core convictions can be traced back to her mother Celia’s early teachings: “be a lady” and “be independent.” To “be a lady,” according to RBG, means to “conduct yourself civilly, don’t let emotions like anger or envy get in your way.” Echoes of her mother’s maxim are evident in the advice she imparts to others: “When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade,” she states.
Ginsburg grounds her most progressive positions in familiar, approachable concepts. Beginning in the 1970s, she spoke of women’s equality in terms of “equal citizenship,” the concept she would later help enshrine in law through United States v. Virginia (the VMI sex-discrimination case). The two words aligned women with other marginalized groups already granted legal protections to form a legal concept so distinct that it has inspired many a law review article.
Her writings are also notable for their remarkable thoroughness. One can imagine that her writing process involves many of the same pauses that often punctuate her speech. Her briefs, articles, and bench announcements strive to account for all reasonable considerations, to dispatch all colorable counterarguments. And, by and large, they achieve this—nearly always graciously, just as Celia Bader would have wanted it.
Ginsburg takes many viewpoints into account, and has shown herself capable of great empathy. “Every judge needs to have both the intellectual capacity to deal with the incredible variety and complexity of the issues,” President Clinton told Hartnett and Williams, “and an instinctive and immediate understanding of the human implications of the decisions being made.” And, Ginsburg, he said, had both in abundance. In his pre-nomination interview with Ginsburg, Clinton noted that she had more than an intellectual interest in the work: “She got the actual human impact of these decisions.” Clinton’s observation is confirmed in these pages.
In her writing on equal citizenship, Ginsburg treats contrary positions and their justifications as reflections of the time and culture in which they appeared, contextualizing instead of condemning. “The American ideal of equality,” she has observed, was “limited at the nation’s founding by a culture that kept early Americans ‘from fully perceiving or acting upon ideals of human equality and dignity.’ ” The contemporary jurist, freed from such a culture, must surely realize a different notion of equality, is her none-too-subtle suggestion.
And when she confronts views contrary to her own, Ginsburg is more likely to question than to assail. She deploys frequent examples to invite reflection, mindful of the novelist Henry Fielding’s assertion that “examples work more forcibly on the mind than precepts.” She depends on analogies to reframe complex legal concepts in simpler, less charged terms—an effective vehicle for exposing perceived logical flaws. Take her dissent in Shelby County v. Holder, in which the majority struck down the Voting Rights Act’s requirement that areas with a record of voter suppression and discrimination obtain Department of Justice clearance before making changes to voting laws. “Throwing out preclearance when it has worked and is continuing to work,” wrote Ginsburg, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Her writing betrays no hint of the kinds of aims—such as vindication or recognition—that too often guide the work of scholars, advocates, and judges. Ginsburg writes only to persuade, and only for the audience she needs to persuade to achieve her desired end—first and foremost, other jurists, those beside her today and those who will follow her. “It is the definition of success,” she relates, at one point, in a sly parenthetical, “that a dissent from a denial of review is never published, because the draft dissent, when circulated in-house, produces the very effect the writer seeks: It leads one or more justices to rethink the matter and supply the vote or votes necessary to grant review.”
Ginsburg ends her preface to My Own Words with the words of the United States’s first female justice. “For both men and women the first step in getting power is to become visible to others, and then to put on an impressive show,” Sandra Day O’Connor has observed. “As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.” This principle is the primum mobile of Ginsburg’s lifelong project. She has achieved power against odds unimaginable to the generation of women now entering law. She has not won every battle—far from it—nor achieved all desired outcomes. Yet none would dispute that she has prevailed—and very publicly.
Importantly, two selections touch on Ginsburg’s jurisprudential Dulcinea—a 1970 challenge by a Catholic Air Force captain, Susan Struck, who became pregnant while stationed in Vietnam in 1970, to regulations that forced her to choose between having an abortion and losing her commission. Although men could father children while serving, Air Force rules prohibited women from giving birth.
Struck’s case would have given Ginsburg another shot at convincing the Court to identify sex, like race, as a suspect classification, meriting the highest level of judicial scrutiny. “It is,” her 1972 brief reminded the Court, “presumptively impermissible to distinguish on the basis of traits of birth over which the individual has no control and for which he or she should not be penalized.” Her case may have, in fact, been too strong. When the Supreme Court agreed to hear it, the solicitor general backed down, fearing a loss, and convinced the Air Force to change its policies.
The government’s backing down meant that things worked out for Struck. But Ginsburg wanted a High Court decision establishing reproductive choice in a sex discrimination framework. Struck presented an ideal opportunity to have the Court address a woman’s prerogative to have or, as in this case, refuse an abortion—in other words, to choose. Instead, the Court took the issue up in Roe with, to Ginsburg’s mind, disastrous results. She uses no stronger a modifier than “breathtaking” to describe Roe. But “breathtaking” might as well be “boneheaded.” Instead of declaring one particularly extreme abortion ban unconstitutional, Ginsburg laments, the Justices went overboard, creating a legal regime that supplanted state laws nationwide overnight. She poses a powerful hypothetical: If the Court had hewed to the types of cautious dispositions through which it developed its stance on sex discrimination, would reproductive choice still be controversial?
Had the Struck case moved ahead, it could also have potentially compelled the Court to find that sex discrimination included pregnancy discrimination. “Heading the list of arbitrary barriers that have plagued women seeking equal opportunity,” Ginsburg’s brief argued, “is disadvantaged treatment based on their unique childbearing function.” Instead, two years later, the Court upheld an insurer’s policy of excluding pregnancy from its list of compensable disabilities. Six justices determined that pregnancy discrimination is not sex discrimination, despite the fact that it can generally only be directed at women. Although Congress overruled that determination with the Pregnancy Discrimination Act in 1978, that result might have been reached much sooner had Ginsburg had the chance to argue Susan Struck’s case.
Ginsburg recounts the moment she realized Struck was over with grace and good humor. In a last-ditch effort to salvage the case after the solicitor general moved to dismiss it as moot, Ginsburg called Struck. Had she been discriminated against in any other way? Struck would have liked to become a pilot, she replied, but the Air Force didn’t provide flight training to women. At that, Ginsburg writes, “We laughed, agreeing it was hopeless to attack that occupational exclusion then.” Emphasis on the “then,” presumably. She concludes the retelling by noting, “Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men.”
It is precisely because Ginsburg has seen—and made—so much progress in her lifetime that November 8, 2016, must have come as a particularly stinging disappointment. Ginsburg broke vital norms of the Court—and character—last July when she confessed to The New York Times, “I can’t imagine what the country would be with Donald Trump as our president.” “For the country, it could be four years,” she continued. “For the court, it could be—I don’t even want to contemplate that.”
Speaking with Joan Biskupic, the Supreme Court biographer, days later, Ginsburg expanded on her remarks. Tellingly, her subsequent mea culpa was not grounded on content; she apologized only for her conduct. How strongly must Ginsburg have felt about the prospect of President Donald Trump’s victory—or Secretary Hillary Clinton’s loss—to comment, jeopardizing not just her power to persuade but her qualification to hear cases involving Trump? On November 9, 2016, the Justice appeared on the bench in her infamous “dissent jabot,” a bejeweled, black velvet collar she reserves for reading dissents from the bench, though no opinions were read that day.
Justice Ginsburg turned 84 in March. Perhaps this book, the preface to which is dated July 2016, was intended to coincide with both the electoral result Ginsburg had once anticipated and her preparations for retirement. The election of a female President—something that perhaps only Ruth Bader Ginsburg would have been able to envision when she graduated law school in 1959—would have fulfilled her ambition to see women accomplish great things on the grandest possible scale.
My Own Words was always meant to be the record of an ascent to power and a performance without rival. But it will no longer be a complement to the denouement Ginsburg once hoped for. Instead, it may serve a more pressing purpose. In the wake of what was for Ginsburg, as well as for millions of other women, a painful and personal reminder of barriers yet to fall, it is likely to become a manual as much as a memoir.