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Contrast the ancient days (the fall of 1956) when I entered law school. Women were less than 3 percent of the legal profession in the United States, and only one woman had ever served on a federal appellate court.I Today about half the nation’s law students and more than one-third of our federal judges are women, including three of the nine Justices seated on the U.S. Supreme Court bench.
Choosing the right word, and the right word order, he illustrated, could make an enormous difference in conveying an image or an idea.
“In every good marriage,” she counseled, “it helps sometimes to be a little deaf.”
The Court’s main trust is to repair fractures in federal law, to step in when other courts have disagreed on what the relevant federal law requires. Because the Court grants review dominantly when other jurists have divided on the meaning of a statutory or constitutional prescription, the questions we take up are rarely easy; they seldom have indubitably right answers.
Despite our strong disagreements on cardinal issues—think, for example, of controls on political campaign spending, affirmative action, access to abortion—we genuinely respect each other, even enjoy each other’s company. Collegiality is key to the success of our mission. We could not do the job the Constitution assigns to us if we didn’t—to use one of Justice Scalia’s favorite expressions—“get over it!”
1689, he signed the Bill of Rights.
We must try to train ourselves and those about us to live together with one another as good neighbors for this idea is embodied in the great new Charter of the United Nations. It is the only way to secure the world against future wars and maintain an everlasting peace.
“Prejudice saves us a painful trouble, the trouble of thinking.”
No one can feel free from danger and destruction until the many torn threads of civilization are bound together again. We cannot feel safer until every nation, regardless of weapons or power, will meet together in good faith, the people worthy of mutual association.
Unless moral judgment is involved, the cost of enforcing the criminal code might well be employed in other areas.
criminal law not only reflects the moral outlook of the community, but may very well alter or create moral attitudes.
We may be anxious to reduce crime, but we should remember that in our system of justice, the presumption of innocence is prime, and the law cannot apply one rule to Joe who is a good man, and another to John, who is a hardened criminal.
The centrality of contract in the Ring was brought home to me vividly some years ago when a law clerk applicant submitted as his writing sample an essay titled: “The Significance of Contract, as Played Out in Wagner’s Ring Cycle.” What better illustration of the well-known legal maxim, pacta sunt servanda, in plain English, agreements must be kept. I hired that law clerk applicant on the spot.
Justice Scalia homed in on the soft spots, and gave me just the stimulation I needed to strengthen the Court’s decision.
“I attack ideas. I don’t attack people. Some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge. At least not a judge on a multi-member panel.”
But my grade school music teacher, with brutal honesty, rated me a sparrow, not a robin.
our mutual respect is only momentarily touched by our sometimes strong disagreements on what the law is.
The Constitution has placed the judiciary in a position similar to that of a referee in a basketball game who is obliged to call a foul against a member of the home team at a critical moment in the game: he will be soundly booed, but he is nonetheless obliged to call it as he saw it, not as the home court crowd wants him to call it.
“We shall never have equal rights until we take them, nor equal respect until we command it.”
there is a need for women of Lockwood’s sense and steel to guard against backsliding, and to ensure that our daughters and granddaughters can aspire and achieve, with no artificial barriers blocking their way.
Chief Justice Charles Evans Hughes described him as “master of both microscope and telescope.” Commenting on Brandeis’ ability to transform the little case before him into a larger truth, Justice Oliver Wendell Holmes said Brandeis had the art of seeing the general in the particular. His opinions are gems, guiding us to this very day.
“erect[ing] our prejudices into legal principles.”
the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
in keeping with tradition—that the brand-new Justice would be slated for an uncontroversial, unanimous opinion. When the Chief’s assignment list came round, I was dismayed. The Chief gave me an intricate, not at all easy, ERISA case, on which the Court had divided 6–3. (ERISA is the acronym for the Employee Retirement Income Security Act, candidate for the most inscrutable legislation Congress has ever passed.)
I sought Justice O’Connor’s advice. It was simple. “Just do it,” she said, “and, if you can, circulate your draft opinion before he makes the next set of assignments. Otherwise, you will risk receiving another tedious case.” That advice typifies Justice O’Connor’s approach to all things. Waste no time on anger, regret, or resentment, just get the job done.
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. . . . 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.3
Plessy v. Ferguson, the 1896 decision that launched the “separate but equal” doctrine.
legal distinction by sex (what Ginsburg often called “sex-role pigeonholing”) was rational and therefore constitutional. She characterized this as “the anything goes” standard of review; it authorized legislators to draw, as the Supreme Court summed up in 1948, a “sharp line between the sexes.” Ginsburg’s
“sex as suspect”
Growing up in a society in which virtually all positions of influence and power are held by men, women believe that they belong to the inferior sex. Women’s lack of self-esteem and their own belief, shared by men, that it is better
Until the Nineteenth Amendment, women could be denied the right to vote. Of course, they are “persons” within the meaning of the Fourteenth Amendment, but so are children, the Court observed in 1874.21 The right to serve on juries could be reserved to men,22 a proposition the Court declined to reexamine in 1971, although Justice Douglas urged his brethren to do so.23 Women, regardless of individual talent, could be excluded from occupations thought more suitable to men—lawyering and bartending, for example.24
The essential point, sadly ignored by the amendment’s detractors, is this: the Equal Rights Amendment does not force anyone happy as a housewife to relinquish that role. On the contrary, it enhances that role by making it plain that it was chosen, not thrust on her without regard to her preference.
work progressed on three fronts: we sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine.
Frontiero v. Richardson, decided a year and a half after the Court had begun to listen: “Traditionally, [differential treatment on the basis of sex] was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect [often] put women, not on a pedestal, but in a cage.”
That same year, 1975, the Court decided a case dear to my heart, Weinberger v. Wiesenfeld.
In defense of the sex-based prescription, the government had argued that the classification was entirely rational, because widows, as a class, are more in need of financial assistance than are widowers.
The case was Craig v. Boren, in which the Court struck down an Oklahoma statute that allowed young women to purchase “near beer,” a beverage that contains only 3.2 percent alcohol, at age 18 but required young men to wait until they turned 21 to buy the weak brew. It was a silly law, which the state sought to justify on the ground that boys drive more, drink more, and commit more alcohol-related offenses than
When a modern constitutional judge is confronted with a “hard” case, Holmes is at her side with three gentle reminders: (1) intellectual honesty about the available policy choices; (2) disciplined self-restraint in respecting the majority’s policy choice; (3) principled commitment to defense of individual autonomy, even in the face of majority action.
Even the most conservative senators remarked that, although they might differ with Judge Ginsburg on particular issues, they respected her intelligence and ability and thought she was well qualified to be a Supreme Court Justice.
But the Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the president, the states, and the people. Constant realization of a more perfect Union, the Constitution’s aspiration, requires the widest, broadest, deepest participation on matters of government and government policy.
The controversies that come to the Supreme Court, as the last judicial resort, touch and concern the health and well-being of our nation and its people. They affect the preservation of liberty to ourselves and our posterity. Serving on this Court is the highest honor, the most awesome trust, that can be placed in a judge. It means working at my craft—working with and for the law—as a way to keep our society both ordered and free.
In Alexander Hamilton’s words, the mission of judges is “to secure a steady, upright, and impartial administration of the laws.” I would add that the judge should carry out that function without fanfare, but with due care.
A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.
“[O]ne of the most sacred duties of a judge is not to read [her] convictions into [the Constitution].” I
temperament, character, judicial record, and judicial philosophy.
The story of the Constitution, she says, is “the extension . . . of constitutional rights and protections to once-excluded groups: to people who were once held in bondage, to men without property, to Native Americans, and to women.” (For
On substance, she says: “Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” thereby “plac[ing] stress on the [judicial] institution.”
To Justice Ginsburg, history teaches that the Court should avoid either impeding, or leaping too far ahead of, the political process, instead engaging in “a temperate brand of decisionmaking” that proceeds incrementally, ordinarily deciding what is required by the case before it and leaving further development to later cases.
The U.S. Supreme Court today is not what jurists call an “error correction” instance. By that I mean the Court will not take up a case simply because a lower court reached an arguably—or even plainly—wrong decision. For correction of errors made in particular cases, we rely largely on the federal courts of appeals, and on the appellate courts (including Supreme Courts) in state judicial systems. (Most of the world’s nations have a judicial system.
District of Columbia has its own two- or three-tiered court system.) For the most part, the U.S. Supreme Court will consider for review only cases presenting what we call deep splits—questions of federal law on which other courts (federal courts, state courts, or a mix of both) have strongly disagreed.
