Supreme Court Justice Ruth Bader Ginsburg
Friday, November 2, 2018
Jane Sherron De Hart never set out to write a book about Supreme Court Justice Ruth Bader Ginsburg; it just happened that way. De Hart, a professor of women’s history at UCSB, initially set out merely to get her hands on Ginsburg’s notes when, in the 1970s, Ginsburg was spearheading a legal initiative to expand legal rights for women. One step begot another, and soon De Hart found herself meeting with the Supreme Court Justice with some regularity.
De Hart’s product, Ruth Bader Ginsburg: A Life, was released just two weeks ago in the tumultuous and toxic aftermath of Brett Kavanaugh’s confirmation hearings. De Hart’s timing could not have been more fortuitous; public fascination with Ginsburg is at an all-time high with a documentary film on the outspoken justice having performed dramatically beyond all expectations this summer.
Independent reporter Nick Welsh met with De Hart to discuss her new book. The following is an edited version of their conversation.
What do you make of the pop-star status that Ginsberg has achieved? Part of me thinks it’s a little sexist. “Ooh, she’s this cute, feisty, Jewish lady.” There’s something inherently patronizing about that, but she somehow transcends it. She uses it. She uses all of this Notorious RBG stuff, particularly where young people are concerned, to convey her views about issues that she thinks are important. For example, in the oral argument over same-sex marriage, she described civil unions as opposed to real marriage as “kind of skim-milk marriage.” That’s the kind of thing that goes viral.
She has the ability, and she’s using it more and more. When she dissents, she’s not speaking to her conservative counterparts. She’s speaking to the future in language that is clear enough and direct enough so that it can become a part of public discourse. I think it’s the authenticity — this octogenarian great-grandmother in whose earlier years was very reserved, not given to small talk. It’s been an interesting transformation.
The word “unprecedented” comes up a lot about Kavanaugh and the recent deliberations. How unprecedented is it really? It is the first time in over 30 years we haven’t had a middle on the court. You could see that this past term. Justice Kennedy did not vote on a single contested issue with the minority. It was just defeat after defeat. Kavanaugh is very conservative on a number of issues, and it just really creates very stark divisions in the court with no moderating middle.
Do you have any sense if Ginsberg feels trapped? That she couldn’t retire now even if she wanted to? Oh, she doesn’t feel trapped. In spite of this last term, she loves her job. I asked her how she felt she had changed over the years, and she said, “Well, I have more confidence in my judgment than ever,” but it certainly doesn’t mean that she thinks her judgment will prevail.
How often did you interview her? When I started, I only saw her once a year. But as we did the interviews, I thought, “I need to know more about this woman.” I needed to know what forces shaped her, what accounted for what I was seeing in the archives. This incredible tenacity, this iron will. I asked one time, “Can we talk next time about Flatbush?” That’s the part of Brooklyn where she grew up. She was not interested in that. I said, “I think it’s really important to get the facts straight.” She said, “Well, I’ll give you half an hour.” There were obvious things related to her childhood and teen years that she did not wish to revisit.
Did you ever figure out why? When she was 2, she had an older sister who died of spinal meningitis. It obviously affected both of her parents, but particularly her father. My hunch is that he was inclined to be depressed. Her mother used to say to her as a child, “Why don’t you sit in your daddy’s lap and see if you can cheer him up?” Her mother was the really powerful figure in her life, and when she was a freshman in high school, her mother was diagnosed with cancer. She would describe how she and her father would meet at the hospital, visit her mother, eat in the hospital cafeteria, and then go home. There was a grayness, sadness. Her mother died two days before graduation, and her father’s business failed. She grew up in very, very modest circumstances.
How was law school for her? How was it for women back then? At Harvard Law School, they had only admitted women a few years before Ruth went. And women in many classes were not called upon except in cases that involved sexual assault. There was a lot of misogyny. And there was Ladies’ Day, where the dean would invite the women in the class every year to his home for dinner. After dinner he would ask them to stand up as he called their name and explain why they were at Harvard taking the place of a man.
How did she deal with that? She said the men bestowed derogatory nicknames upon their female classmates. Ginsburg’s were “Ruthless Ruthie” and “Bitch.” When she later found out that it was “bitch,” she said, “Well, better than ‘bitch’ than ‘mouse.’”
How would you describe her style in the courtroom? She resolved that she was going to be unemotional, and her job as a litigator was to try to convince the court that there were situations in which laws appeared to favor women as a group but that actually penalized individual woman. Her briefs were really brilliant. Justice Blackman was kind of grumpy about the whole thing. He would make little notes during oral arguments that said, “Too emotional.” He didn’t like the fact that she used the history of women as points in her argument.
Did she talk about Antonin Scalia with you? The two of them could not be more opposed, but they were famous friends. They argued. They knew they were never going to convince each other, but they had such a pride in the words they chose and the art of writing. He helped her strengthen her Virginia Military Tech opinion even though he dissented vigorously. They had this common love of craftsmanship and this real zest for life. At court, if you were really close, you could hear them speaking to each other. He would say things, and she would have to pinch her[self] to keep from laughing. She told me, “I would have to pinch myself so hard that I would have bruises on my arm because he would just crack me up.”
There was nothing more divisive than Bush v. Gore. When people talked to Scalia about it, he would say, “Oh, get over it.” That was his famous phrase. She had issued a pretty scathing dissent. He called her up after they finally left the court and said, “Take a hot bath.” He sent her roses on her birthday. They celebrated New Year’s dinner.
In the context of today, that’s almost sweet. It is. I mean it’s a level of talking across the divide that just doesn’t seem to exist anymore.
Is there anything you found out about her that surprised you? Well, at first, I didn’t know if she had a sense of humor. She was very hard-pressed as a mother and professor and climbing the tenure ladder. Her children, with the encouragement of their father, would try to tell stories at dinnertime to make Mommy laugh. I later discovered in some correspondence that she was quite witty. I also was fascinated by how she replicated, in many ways, her own mother’s mothering, and how her daughter in turn, who’s also a Harvard Law graduate and a Columbian law professor, replicated Ruth’s mothering.