How Ruth Bader Ginsburg put a face on sex discrimination and taught her clerks to live good lives

Written by Danielle Chiriguayo and Amy Ta, produced by Sarah Sweeney

Berkeley law professor Amanda L. Tyler with Justice Ruth Bader Ginsburg in 2005. “She used to tell her clerks, ‘You can have it all, may not be able to have it all at the same time, but you can have it all.’ She had a patience about her that I think also fed into an optimism of all that we could accomplish. But she understood you wouldn't always necessarily be able to do it overnight,” says Tyler. Photo courtesy of Amanda L. Tyler.

One of the most famous opinions written by the late Supreme Court Justice Ruth Bader Ginsburg came in a 2013 case that gutted the Voting Rights Act. In Shelby v. Holder, the court’s five conservative justices ruled that a key part of the law was unconstitutional: the part that determined which states and counties needed to get approval from the federal government before changing their voting laws. These were places with a history of voter suppression leading up to the Civil Rights movement in the 1960s.

In dissent, Ginsburg wrote that letting them off the hook was “like throwing away an umbrella during a rainstorm because you aren’t getting wet.”

Her entire opinion in that case, along with some of her other favorites, are compiled in a new book that Ginsburg helped put together just before her death in September 2020. 

It’s called “Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union.”

It presents Ginsburg’s legal philosophy and shows a window into her personal life. She even gives advice for what makes a good marriage. 

The book is co-authored by Amanda Tyler, who clerked for Ginsburg and now teaches law at UC Berkeley.

Tyler tells KCRW that Ginsburg was a mentor and teacher. “She was a demanding boss in all the good ways and none of the bad. Which is to say, she expected a lot of her clerks. She had very high expectations. But you wanted to meet them, you worked hard to meet them, because you knew that she had the highest standards for herself. And you knew also that if you met her standards, she would celebrate that.”

When writing court opinions, Tyler says she and Ginsburg sometimes sent 20 drafts back and forth, and Ginsburg explained to her clerks why she made certain edits. When the document was ready for release, Ginsburg wrote “just right” on it (in the corner).  

“She taught all of her law clerks …  not just how to be a better writer and a better thinker, but more globally, how to think about our Constitution and the role of the court as a force for good. And she also taught us a tremendous amount of life lessons, and specifically, lessons on how to live a good and full life,” Tyler says.

Patience and having it all

Ginsburg’s time management stemmed back to her days in law school, as Tyler learned when interviewing the justice for the book. Ginsburg was  studying at the top of her class while raising a toddler and supporting her husband Marty through his cancer bout. 

That all set up Ginsburg to understand the importance of patience, Tyler says.

“She used to tell her clerks, ‘You can have it all, may not be able to have it all at the same time, but you can have it all.’ She had a patience about her that I think also fed into an optimism of all that we could accomplish. But she understood you wouldn't always necessarily be able to do it overnight.”

That level of incremental success fed into Ginsburg’s strategy as a lawyer. Tyler says she was not only in court litigating cases for the ACLU, but was also lobbying for progressive legislation on gender rights. 

“She wanted, with each piece of the puzzle, to bring along as many people as possible. The idea being we want change to be meaningful, and we want it to stay. I want there to be buy-in for this change to remain.”

Gender discrimination and law 

The first case Ginsburg and her husband Marty litigated together was in Moritz v. Commissioner. It involved a man who wanted to take care of his mother, but he couldn’t get a tax dedication due to his status as a man who never married. At the time, only women could claim that particular dedication. Tyler says the case was an example of Ginsburg’s awareness of how laws based on gender stereotypes held back both women and men.  

“They hold back everyone from being able to chart their own destinies and make their own choices about whether they want to stay home with a child, whether they want to take care of a family member.” 

Tyler argues that particular awareness pushed Ginsburg to frame sex discrimination in a way that judges could understand. 

“As she likes to say, ‘You put a woman on a pedestal, you're actually also putting her in a cage or holding her back and … it was time to recognize discrimination and all of its pernicious effects, and chart a new course.’”

According to Tyler, Ginsburg tried to put a face on discrimination by making the judges think of their daughters or granddaughters.

“Whether it was having a man with her in the courtroom, who she could point to as the victim of discrimination, or it was trying to get them to think about the future that they wanted for their daughters, and their granddaughters. 

The influence of faith

The title of Tyler’s book, “Justice, justice, Thou Shalt Pursue,” is a direct passage from the Book of Deuteronomy. The same phrase was featured in artwork on the walls of Ginsburg’s chambers. 

Tyler says the quote described Ginsburg. “It was the guiding principle for all that she did. And so I think this is a very important component to the story of how we think about Justice Ginsburg, and how she thought about herself and what she was put on this earth to do.” 

Excerpt from "Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union" by Ruth Bader Ginsburg and Amanda Tyler

Introduction

August 2020

Amanda L. Tyler

In 2017, when my beloved colleague at the University of California, Berkeley School of Law, Herma Hill Kay, passed away, another colleague and her spouse helped endow a lecture series in Herma’s memory.1 There was one very obvious choice to deliver the inaugural lecture—Herma’s longtime close friend and co-author of the very first legal casebook on gender-based discrimination, Justice Ruth Bader Ginsburg. To our collective great delight, Justice Ginsburg accepted the invitation to deliver the first annual Herma Hill Kay Memorial Lecture in October 2019. As the Justice and I planned her visit, we decided she would begin with remarks about her decades-long friendship with Herma, and then we would sit down for a conversation about how the Justice has pursued gender equality through her life and work.

This book stems from Justice Ginsburg’s time in Berkeley that fall. Following her visit, she and I decided to assemble a collection of materials that tracked our conversation about her life and work in order to give readers a glimpse into how as a lawyer and federal judge she has worked tirelessly for gender equality and, more generally, achievement of our Constitution’s most fundamental aspiration—to build “a more perfect Union.”

When Joan Ruth Bader was born on March 15, 1933, the law viewed women very differently than it does today. A little over two decades before her birth, the very Court on which she would one day sit issued an opinion in Muller v. Oregon positing that even if a woman “stood, so far as statutes are concerned, upon an absolutely equal plane with [a man], it would still be true that she is so constituted that she will rest upon and look to him for protection.”2 This was the same Court that late in the nineteenth century upheld a state’s refusal to license a married woman to practice law, with one justice going so far in that case to assert that “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”3 Through the 1960s, in fact, the Supreme Court upheld legislation drawing distinctions between men and women, declining to disturb, among other things, a law that prohibited women from bartending unless they did so under the auspices of a husband or father,4 and also laws that excluded women from local jury pools.5 Speaking to the latter issue, the Court’s 1961 decision in Hoyt v. Florida observed:

Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civil duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.6

Against this backdrop, perhaps it is unsurprising that a young Justice Ginsburg did not even contemplate a career in the law. As she told me in our conversation, “I didn’t think about the legal profession for me because women were not there.” But, as she and I also discussed, law became her chosen path based on her experience in college during the McCarthy era watching lawyers stand up for the First Amendment rights of Americans to “think, speak, and write as we believe and not as a big brother government tells us is the right way to think, speak, and write.” Another pull in her gravitation toward the law came when she chose as her partner in life Martin D. Ginsburg, “Marty,” who would be her beloved spouse for fifty-six years. As she described in our conversation, after they met at Cornell, the two decided they would enter the same profession. After a process of elimination, law won out and both eventually enrolled at Harvard Law School, Marty one year ahead of the Justice.7

Justice Ginsburg was one of only nine women in her Harvard Law School class of over 500 students. She was also a mother at the time, with a fourteen-month-old daughter at home.8 As she described this period of her life in our conversation, motherhood gave her life “balance,” ensuring that she would not be completely consumed by her law studies. As we also discussed in our conversation, there were also trying months when Marty was diagnosed with cancer in the winter of his third year and it was not at all clear he would survive. He did, and as the Justice told me, this—and her own more recent courageous battles with cancer—taught her that “if you have survived cancer, you have a zest for life that you didn’t have before, you count each day as a blessing.”

After taking her final year of studies at Columbia Law School and graduating tied for first in her class, she found job offers hard to come by. She was, after all, Jewish, a woman, and a mother. With the powerful backing of a favorite professor, Justice Ginsburg started her legal career in a clerkship with District Judge Edmund L. Palmieri of the Southern District of New York, after which she gained academic appointments. She joined the Rutgers Law School faculty in 1963, the nineteenth woman law professor appointed to an accredited law school in the United States.9 But, as she and I discussed in our conversation, even though her appointment occurred the year the Equal Pay Act became law, she was still paid less than her male colleagues. As her law school dean told her at the time, Rutgers could pay her less than her male counterparts because she had “a husband with a well paid job.” It was during her time at Rutgers that Justice Ginsburg’s path intersected with Herma Hill Kay’s and in 1974 the two, together with Kenneth Davidson, published the pathbreaking Cases and Materials on Sex-Based Discrimination, the very first casebook on the subject.10

Meanwhile, Justice Ginsburg had already begun a litigation career that would lead in time to comparison of her work for gender equality to the work Justice Thurgood Marshall had undertaken to dismantle segregation. One by one, Justice Ginsburg toppled the stereotypes and assumptions that had provided the foundation for cases like Muller v. Oregon and Hoyt v. Florida. It began, as those who have seen the 2018 movie On the Basis of Sex know, with a case she jointly litigated with Marty, Moritz v. Commissioner of Internal Revenue.11 As she and I discussed in our conversation, their effort began when Marty, a tax lawyer, handed his wife some pages from a Tax Court advance sheet after seeing a report of Mr. Moritz’s case. In short order, they prevailed on behalf of Mr. Moritz, a never married man, who had been disallowed a caregiver tax deduction his female equivalent would have been allowed. In time, as Justice Ginsburg noted in our conversation, Moritz offered her a roadmap for the series of cases she litigated in its wake as Director of the American Civil Liberties Union’s Women’s Rights Project, and later, as one of the ACLU’s four General Counsels. Throughout the 1970s, she briefed ten Supreme Court cases on behalf of parties challenging gender discrimination, presented oral argument in six of those, and prevailed in seven (with one becoming moot before the Court decided it).12 Justice Ginsburg also filed friend of the Court, or amicus curiae, briefs in at least a dozen more cases.

In one of those cases, the first she argued before the Supreme Court, Frontiero v. Richardson, Justice Ginsburg explained in her brief to the Court: “Historically, women have been treated as subordinate and inferior to men. Although some progress toward erasing sex discrimination has been made, the distance to equal opportunity for women in the United States remains considerable.”13

To close that distance, Justice Ginsburg successfully challenged in litigation before the Supreme Court and lower courts, among others: a statutory scheme that preferred men to women as estate administrators,14 the automatic discharge of pregnant Air Force officers,15 federal statutes granting disparate benefits to male and female members of the military,16 the automatic exemption of women from jury pools (effectively winning the overruling of Hoyt v. Florida),17 the denial of equal social security benefits to men and women caregivers,18 the denial of unemployment benefits to pregnant women,19 the denial of equal social security benefits to male surviving spouses,20 and the limitation of assignments available to women in the Navy.21 Mindful that her work was the continuation of efforts by many who had come before her, Justice Ginsburg included the names of Dorothy Kenyon and Pauli Murray on the first brief she filed in the Supreme Court, for the appellant in Reed v. Reed.

In 1980, President Jimmy Carter nominated and the Senate confirmed Justice Ginsburg to serve as a judge on the United States Court of Appeals for the District of Columbia Circuit. Then, in 1993, President Bill Clinton nominated her to serve as an Associate Justice of the Supreme Court. In the hearings before the Senate Judiciary Committee leading up to her confirmation, the Justice gave opening testimony in which she introduced her family and then offered this self-description:

I am a Brooklynite, born and bred—a first-generation American on my father’s side, barely second-generation on my mother’s. Neither of my parents had the means to attend college, but both taught me to love learning, to care about people, and to work hard for whatever I wanted or believed in. Their parents had the foresight to leave the old country, when Jewish ancestry and faith meant exposure to pogroms and denigration of one’s human worth. What has become of me could happen only in America. Like so many others, I owe so much to the entry this nation afforded to people yearning to breathe free.22

Justice Ginsburg next credited Marty for supporting her choice to become a lawyer “unreservedly” and for believing “when we met, and today, that “a woman’s work, whether at home or on the job, is as important as a man’s.” Among many others she also thanked for the opportunity before her, she credited “the determined efforts of men and women who kept dreams of equal citizenship alive in days when few would listen,” specifically mentioning Susan B. Anthony, Elizabeth Cady Stanton, and Harriet Tubman.

Finally, in her statement, Justice Ginsburg discussed the role of the judge and more generally what it means to serve as a guardian of our Constitution. “[T]he Justices,” she said, “do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the president, the states, and the people.” She continued: “Constant realization of a more perfect Union, the Constitution’s aspiration, requires the widest, broadest, deepest participation on matters of government and government policy.” As we will see throughout the pages of this book, striving for this aspiration—the “more perfect Union”—has always been at the heart of Justice Ginsburg’s life’s work. As she testified at her confirmation hearings, moreover, she believes that working toward a “more perfect Union” is also the responsibility of all of us.

Following Senate confirmation by a vote of 96–3, Justice Ginsburg took her seat on the Supreme Court on August 3, 1993. In only her third term on the Court, a blockbuster gender discrimination case came before the justices. The case involved the storied Virginia Military Institute (VMI) and its longstanding exclusion of female cadets from its student body. When the time came to assign the opinion, the senior justice in the majority camp initially turned to Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court of the United States. Justice O’Connor, however, believed that Justice Ginsburg should speak for the Court in United States v. Virginia. Justice Ginsburg’s majority opinion rejected the state’s newly created separate military college offering training geared to women, holding instead that VMI, with its prestige and far more robust opportunities, must open its doors to male and female cadets alike. In so ruling, Justice Ginsburg highlighted the considerable progress made in the fight for gender equality by this time: “[G]eneralizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”23 Justice Ginsburg’s opinion in VMI would seem to be, in many respects, a capstone to her career. But she was only getting started.

Indeed, as I write this, Justice Ginsburg has just completed her 27th term on the Supreme Court, during which time she has authored hundreds of opinions, including many more seeking to dismantle various forms of discrimination and open up opportunities to broader segments of our society. In recent years, some of her most prominent opinions have been dissents. One of the best known—the opinion that garnered her the nickname “the Notorious RBG”—is her dissent, joined by three other justices, to the Court’s 2013 decision in Shelby County v. Holder.24 In that case, the Court struck down as unconstitutional the preclearance requirements of the Voting Rights Act of 1965. In a line that resonates today as powerfully as the day she wrote it, she objected that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes [in voting laws] is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Excerpt from Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union, by Ruth Bader Ginsburg and Amanda Tyler. Copyright Ruth Bader Ginsburg and Amanda Tyler
University of California Press
Publication date: March 16, 2021

Credits

Guest:
Amanda L. Tyler - UC Berkeley law professor and former law clerk to Justice Ruth Bader Ginsburg

Host:
Madeleine Brand

Producers:
Sarah Sweeney, Angie Perrin, Michell Eloy, Amy Ta, Rosalie Atkinson, Brian Hardzinski, Bennett Purser