When Ruth Bader Ginsburg was appointed to the US Supreme Court in 1993 by President Bill Clinton, she was only the second woman—after Sandra Day O’Connor—to serve in a storied institution so male that a popular book about it was titled The Brethren. At the time, Associate Justices Antonin Scalia JD ’60 and David Souter ’61, JD ’66, known for actively questioning lawyers who argued before them, weren’t expecting any serious competition from the newcomer. “But we were in for a big surprise,” Souter told a rapt crowd at Radcliffe Day 2015 on May 29, where Ginsburg was honored with the Radcliffe Medal for her extraordinary legal career and transformative impact on society. “Justice Ginsburg was off the mark with the ﬁrst question before Justice Scalia and I had our mouths open,” Souter recalled. Indeed, he said, as Ginsburg continued to pepper the lawyers, “Justice Scalia leaned over to me and whispered, ‘You and I may have asked our last questions in this courtroom.’”
Ginsburg—who engaged in a lively discussion of her career and drew several standing ovations—was never one to be intimidated, said Lizabeth Cohen, dean of the Radcliffe Institute, who thanked her for “a lifetime of brilliant service” as a Supreme Court justice and trailblazing litigator for gender equality. “She is a passionate advocate for equality and a dispassionate jurist for justice,” Cohen said. “Whether in the majority or the minority, she illuminates a path toward a society of greater fairness and dignity. She elevates the work of the court by respecting her opponents while holding steadfast to her convictions.”
From her majority decision eliminating the ban on women at the Virginia Military Institute to her dissent in a case on equal pay for women, which led Congress just 18 months later to pass the Lilly Ledbetter Fair Pay Act, Ginsburg has had a profound effect on the law, especially in the area of gender equality, Cohen said. As a litigator and cofounder of the Women’s Rights Project at the ACLU in 1972, Ginsburg won ﬁve of the six cases she argued before the Supreme Court, leading to important improvements in the lives of women, men, and their families, including obtaining Social Security beneﬁts for fathers and eliminating gender-based jury service exemptions.
As President Clinton stated when he appointed her to the high court, many feel Ginsburg is to the women’s movement what Supreme Court Justice Thurgood Marshall was to the civil rights movement, said Michael Klarman, Kirkland and Ellis Professor at Harvard Law School, who clerked for Ginsburg and spoke on the morning panel discussion about the current Supreme Court.
Ginsburg is also a cultural icon, hero to the millennial generation and others, with devoted followers on Twitter and Tumblr. She has a hip nickname, The Notorious RBG, a reference to the late rapper and fellow Brooklynite The Notorious BIG, and her likeness— bespectacled, in her black robes with the lace jabots she favors—is emblazoned on T-shirts and other paraphernalia. She’s even the subject of an opera, “Scalia/Ginsburg,” which premiered in July and celebrates her famous friendship—and constitutional battles—with her conservative colleague. In one of the most important scenes, Ginsburg told the Radcliffe Day audience, Scalia is locked up in a dark room for excessive dissenting. “I come to his rescue—entering through a glass ceiling,” she said, as the crowd laughed and applauded.
Her own path wasn’t easy. When she matriculated at Harvard Law School in 1956, she was one of nine women in a class of more than 500. She transferred to Columbia Law School to join her husband, Martin D. Ginsburg, a tax lawyer, in New York City. She graduated ﬁrst in her class, as she had in high school and as an undergraduate at Cornell. She also served on the law reviews at both Harvard and Columbia. Yet she was turned down for a Supreme Court clerkship by Justice Felix Frankfurter and landed an appeals court clerkship only after a professor gave a personal guarantee that he’d ﬁnd a male replacement if Ginsburg didn’t work out. She did so well that the next clerk hired by Judge Edmund Palmieri of the Southern District of New York was also a woman, Cohen noted.
At Columbia Law School, Ginsburg was the ﬁrst tenured woman on the faculty, and she coauthored the ﬁrst law school casebook on sex discrimination. She also cofounded the Women’s Rights Law Reporter, the ﬁrst journal to focus on women’s rights. As the leading women’s rights lawyer of the ’70s, she faced a tough road convincing male judges that sex classiﬁcations—even those that ostensibly helped women—perpetuated stereotypes that harmed everyone. She frequently endured condescension from men on the bench and criticism that her legal briefs were “emotional,” Klarman noted, and battled stereotypes even as a mother. While a tenured law professor at Columbia and Supreme Court litigator, she repeatedly received phone calls about her young son James acting up at school. Exasperated, she ﬁnally told a teacher, “‘This child has two parents. I suggest from now on you alternate between them when you need to speak to someone about James,’” according to Klarman. James’s behavior didn’t improve, Klarman said, but “the phone calls ceased because they wouldn’t dream of phoning a busy tax lawyer at his office.”
Radcliffe Day drew 1,300 people to Radcliffe Yard, with a live webcast drawing viewers from as far away as China and Finland. A highlight of the day was a conversation between Ginsburg and Kathleen Sullivan JD ’81, former dean of Stanford Law School and a former Harvard Law School professor, who said, “There isn’t a glass ceiling you haven’t broken.” Ginsburg said that, whether litigating on behalf of men or women, her objective was to get rid of laws based on gender stereotypes “so that everyone could—in the words of a song popular in the early ’70s—be free to be you and me.” She also noted that changes in public opinion about women’s roles led to successes in the ’70s that would have been impossible a decade earlier. The faculty at the Virginia Military Institute “was very much in favor” of admitting women, Ginsburg said, with a wry smile, “because if they could include women in the applicant pool they’d upgrade the quality of students.”
In closing, Sullivan asked Ginsburg for her advice to young women. “Fight for the things you care about, but do it in a way that will lead others to join you,” Ginsburg said. One important asset, she added, is a sense of humor. In thanking Souter for introducing her, she noted that they served together for 16 years on the Supreme Court. To audience laughter, she added, “Justice Souter and I voted alike more than any other two justices—even more than Justices Scalia and [Clarence] Thomas.”
THE ROBERTS COURT, FROM 2005 TO TODAY
A panel discussion is traditional at Radcliffe Day. In honor of Ginsburg, this year’s panel included legal scholars addressing major trends in the Supreme Court under Chief Justice John Roberts ’76, JD ’79.
The examination of decisions and dissents was moderated by Margaret H. Marshall EdM ’69, the former chief justice of the Supreme Judicial Court of Massachusetts who wrote the majority decision in the landmark 2003 Goodridge case, which held that same-sex couples had the right to marry. She received the Radcliffe Medal in 2012.
The four panelists included Linda Greenhouse ’68, a former Supreme Court correspondent for the New York Times, the Knight Distinguished Journalist-in-Residence and Joseph Goldstein Lecturer in Law at Yale Law School, and a 2006 Radcliffe medalist; Michael Klarman, the Kirkland and Ellis Professor at Harvard Law School and a former law clerk of Ginsburg’s; Lauren Sudeall Lucas JD ’05, an assistant professor of law at Georgia State University College of Law; and John Manning ’82, JD ’85, the Bruce Bromley Professor of Law at Harvard Law School.
The cases the panelists focused on involved the “individual mandate” in the Affordable Care Act, the use of racial classiﬁcation in school assignments, and the changing requirements for bringing lawsuits in federal courts.
Subsequently, questions from the audience led to a lively discussion of Citizens United v. FEC, the 2010 case in which the Supreme Court struck down restrictions on political advertisement spending by corporations.
Marshall, who devoted much of her Radcliﬀe Medal speech in 2012 to the issue of money in politics, was a passionate participant in that conversation. Her remarks from Radcliffe Day 2012 are posted on the Radcliffe website, as are the complete videos of Radcliffe Day 2015 with the panel discussion and its concluding remarks from Klarman sharing why “Justice Ginsburg is one of the few justices in history who would be a deservedly famous American had they never served on the Supreme Court.”
Elaine McArdle is an attorney and a freelance writer.
Photos by Tony Rinaldo