Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law

by Jeffrey Rosen

She viewed her advocacy not as a crusade for abstract principles but as a fight for justice for individual men and women disadvantaged by laws that discriminated on the basis of sex.

So, my objective was to take the Court step by step to the realization, in Justice Brennan’s words, that the pedestal on which some thought women were standing all too often turned out to be a cage.

From her days as an advocate to her days as a justice, Ginsburg insisted that men and women would be truly equal only when they took equal responsibility for child rearing. She wrote as early as 1972 that “child rearing, as distinguished from child bearing, does not involve a physical characteristic unique to one sex,”

Well, emotions like anger, remorse, and jealousy are not productive. They will not accomplish anything, so you must keep them under control. In the days when I was a flaming feminist litigator, I never said to judges who asked improper questions, “You sexist pig.”

The idea was there from the beginning: equality. And yet you can read every page of your pocket Constitution and you will not find, in the original Constitution, the word equal, or equality, even though equality was a main theme of the Declaration of Independence. The word equal becomes a part of the Constitution in the Fourteenth Amendment.

Ginsburg argued that if the Supreme Court in 1973 had simply struck down the Texas law at issue in the case and had resisted the temptation to impose a national framework for abortion, the case might have inspired less of a backlash, allowing a growing number of state legislatures to recognize a right to reproductive choice on their own. What her feminist critics in the 1990s failed to appreciate was that Ginsburg was laying the groundwork for a firmer constitutional foundation for reproductive choice, one rooted in women’s equality rather than the right to privacy.

Ginsburg maintained that restrictions on abortion are best understood not as a private matter between women and their male doctors; instead, the restrictions violate women’s constitutional right to equality by limiting their ability to define their own life choices, imposing burdens that are not imposed on men. If Roe v. Wade had been based on the Equal Protection Clause of the Constitution instead of on the Due Process Clause, Ginsburg insisted, it would have been more constitutionally convincing.

Ginsburg noted that women’s equality was a less prominent theme in Roe, which had “coupled with the rights of the pregnant woman the free exercise of her physician’s medical judgment,” and she suggested that Roe might have been less controversial if the decision had focused more precisely on women’s equality.

Ginsburg’s central premise is that antiabortion laws, like employment discrimination against pregnant women, are based on “stereotypical assumptions” about women as caregivers. Today, pro-choice scholars, advocates, and citizens, including millions of young women, have embraced her emphasis on equality, rather than privacy, as the soundest constitutional foundation for the right to choose.

If we imagine the worst-case scenario, with Roe v. Wade overruled, there would remain many states that would not go back to the way it once was. It doesn’t matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can’t pay are the only women who would be affected.

The Court is a reactive institution. You react to the controversies that are brought to the Court. Roe v. Wade, I should be very clear—I think the result was absolutely right. Texas had the most extreme law in the nation; the Court could have decided the case before it, which is how the Court usually operates. It should have said that the Texas law is unconstitutional. There was no need to declare every law in the country addressing abortion, even the most liberal, unconstitutional. That’s not the way the Court usually operates. It doesn’t take giant steps.

Another aspect of my criticism: the image you get from reading the Roe v. Wade opinion is it’s mostly a doctor’s rights case—a doctor’s right to prescribe what he thinks his patient needs. And the images of the doctor and the little woman—it’s never the woman alone. It’s always the woman in consultation with her doctor. My idea of how choice should have developed was not a privacy notion, not a doctor’s right notion, but a woman’s right to control her own destiny, to be able to make choices without a Big Brother state telling her what she can and cannot do.

Even in the worst case, if Roe is overruled, there’s no woman of means who could not get a safe abortion someplace in the United States. There will be a core of states that will never go back to the days of unsafe, back alley abortions. So, poor women have no choice, women of means will be able to decide for themselves.

The debate among feminists about pregnancy benefits has had dramatic implications for the legal status of the right to choose abortion itself. As Ginsburg noted in a 1986 article, “The characterization of pregnancy discrimination as sex discrimination, requires the comparative analysis of the equal protection model. Its emphasis is on what is not unique about the reproductive process of women.” By contrast, the difference that feminists focus on is what is unique about childbirth. They advocate special treatment for pregnant women based on their premise that men and women are not “similarly situated” because of their reproductive differences. This was the same premise that Justice Stewart had invoked in his 1974 holding that discrimination against pregnant women is permissible. That’s why Ginsburg’s insistence that discrimination on the basis of pregnancy is a form of discrimination on the basis of sex is so central to her search for alternatives to the right to privacy, which does not appear explicitly in the Constitution, as a firm legal basis for protecting women’s reproductive rights. Ginsburg has been far more willing to enforce privacy rights for women when they can be tied to the text of the Constitution, such as the Fourth Amendment’s prohibition against unreasonable searches and seizures.

There is no right of privacy written into the Constitution. There is the Fourth Amendment, protecting people against unreasonable searches and seizures. But there is a notion, an important notion, of liberty—that we should have liberty to carry on with our lives without Big Brother Government looking over our shoulder. That idea has come from the guarantee, the due process guarantee of liberty, rather than an explicit right of privacy.

Ginsburg appreciated that Rehnquist assigned the most interesting cases on the basis not of ideology but of which justices had completed their previous assignments on time.

You know, the Court is not like a legislature; we don’t vote a particular way because we would like that outcome. We have to account for everything we do by giving reasons for it. So there’s no cross-trading at all on the Court. What there can be is, instead of deciding the great big issue, we can agree on a lower ground, on a procedural issue, perhaps. Justice Sandra Day O’Connor was a grand master at that—getting the Court to come together on a ground on which we could agree, and defer the bigger battle for another day.

I should explain how things work at the Court. When the Court is sitting, we sit two weeks in a row; we meet on Wednesday afternoon to talk about Monday’s cases, and on Friday morning to talk about Tuesday’s and Wednesday’s cases. The chief starts by summarizing a case and then expressing his tentative vote. When all of us have had our say, the chief justice will give us our homework. That is, he will assign people to write the opinions from the sitting. When he’s not in the majority, the most senior justice in the majority has that job. Maybe twice a term, the opinion will come out not as the conference voted initially, but on the other side.

RBG: I should define the term activism as I used it for that purpose. It is a court that is not at all hesitant to overturn legislation passed by the Congress.

Sometimes Congress is helpful. There’s a difference between a case that involves constitutional interpretation, where the Court says, “This is what the Constitution means.” Well, that’s what it means until the Court overrules its decision or there’s a constitutional amendment. But when you’re dealing with statutes like our principal employment discrimination law, Title VII, if the Court gets it wrong, Congress can fix it.

The Social Security Act—the name of the ACT is FICA, the Federal Insurance Contributions Act. Well, it was sold to the public as an earned right. Work, you pay an insurance premium, but you are not paying an insurance premium at all. You’re paying a tax, pure and simple. That’s what Social Security is. It’s a tax we pay so that people who are no longer able to work will be taken care of.

For most of her career on the bench, Ruth Bader Ginsburg was known as a judge’s judge, a judicial minimalist who believed that social change comes slowly and from the ground up, fired by political activism, ratified by Congress and state legislatures, and, only after that, carried forward by courts.

To go back to Brown, a concern the United States government had was definitely part of the picture. At that time, we were in a Cold War with the Soviet Union, and the State Department filed a brief in Brown v. Board urging the Court to end what was basically apartheid in America. It said, we are being embarrassed constantly by the Soviet Union charging that the United States is a racist society. Please, Court, help us to end that era.

Today the equal protection guarantee extends to women, but if you ask the question “Back in 1868, when the Fourteenth Amendment became part of the Constitution, did the people at that time envision that women would be citizens equal in stature to men?” The answer, surely no. But as I see the equality idea—it was there from the beginning and was realized by society over time. So I would say this: It’s true that in 1868 women were a long way from having the vote. But then the Nineteenth Amendment was ratified in 1920, and women gained the vote. We had the civil rights movement of the 1960s aimed at making the equality guarantee real for race—as it should have been from the beginning. Those developments inform my view of what the Equal Protection Clause means today.

don’t know an age in which the Court has really led. Let’s return to Brown v. Board, probably the most celebrated decision of the twentieth century, and rightly so. But it wasn’t just Thurgood Marshall’s great advocacy and his careful plan working up to Brown. It was the aftermath of World War II; we had just fought a war against odious racism, and yet our own troops were separated by race.

For Ginsburg, the #MeToo movement is a vindication of the vision of feminism that she championed in the 1970s: a rejection of the traditional idea that women and men occupy separate spheres in which women are naturally passive and men aggressive; an attack on laws treating men and women differently, especially those designed to protect “the weaker sex”; and an insistence that special benefits for women be extended to men.

In the 1980s, however, Ginsburg’s vision of gender equality came under bitter attack by a new generation of feminist legal scholars who argued that the law should emphasize women’s differences from men, rather than their similarities. The new feminists called Ginsburg “phallocentric” and “assimilationist” for challenging classifications that burdened men as well as women and for mostly representing male plaintiffs. “As applied, the sameness standard has mostly gotten men the benefit of those few things women have historically had—for all the good they did us,”4 wrote the legal scholar Catharine MacKinnon in 1984.

Rather than seeking legal equality, MacKinnon argued, feminists should target instead the broader evil of social structures that “devalue” women. Accordingly, the feminists of the 1980s sought to resurrect many of the special protections for women that Ginsburg had opposed, from sweeping bans on pornography to child-rearing benefits for mothers but not fathers. The unexpected debate among feminists about whether Ginsburg’s advocacy hurt more than it helped women brings to mind Malcolm X’s attacks on Thurgood Marshall for bei...

The great irony of the debate about special treatment versus equal treatment for women, as Ginsburg noted, is that the “separate modes thesis” of the new legal feminists looks very much like “the old typology in which the female is classified in terms of passion and its bonds, the male in terms of reason and its distinctions.” And it was this typology of difference that had been used to justify the legal subordination of women until the 1970s. Most laws that drew an explicit distinction between men and women, as Ginsburg noted, did so ostensibly to protect women, or “benignly prefer” them. Laws prescribing the maximum number of hours women, but not men, could work; laws excluding women from “hazardous” occupations such as bartending; even laws requiring men but not women to serve on juries—all used the rhetoric of “separate but equal” to conceal their assumption that women could not fend for themselves.

For Ginsburg, therefore, the #MeToo movement, in which women used social media and other platforms to demand the same respect in the workplace as their male colleagues, was a vindication of her vision that women should empower themselves by joining the workplace in numbers and refusing to tolerate unequal treatment, intentional or unintentional. Ginsburg believes that the Constitution should be interpreted to root out unconscious biases that subordinate women. But as she recognized decades ago, true equality requires that men and women work together to root out unconscious bias in families and in the workplace.

You can see what happened in the seventies. Up until then, the Supreme Court never saw a gender-based classification it didn’t like or regarded as unconstitutional.

Well, the more women—this is something that Justice O’Connor often said, that women of our age should get out there and make a good show, and that will encourage other women, and the more women that are out there doing things, the better off all of us will be.

There’s a thought that the ERA will succeed if three more states ratify, but I don’t think you can play the game that way, because a number of states have withdrawn their ratification, so you’d have to count those. It would be better to start over. I hope that that will happen.

Equal citizenship stature for men and women belongs in any fundamental instrument of government. It should be as basic to society as free speech and freedom of religion. And it is stated among basic rights in every post-1950 constitution in the world.

The original Constitution, as amended by the Bill of Rights, includes many themes that would apply to society as it evolves over time, freedom of speech, press, and religion, and due process of law, most notably. And equality imbued the Declaration of Independence although the stain of slavery kept that ideal out of the Constitution until 1868.

Yes, and an important part is the discontent seen among people who feel that our institutions of government pay no attention to them, as illustrated by J. D. Vance’s Hillbilly Elegy.

Hope springs eternal. I try to be as persuasive as I can in conference and in writing opinions. Sometimes I’m successful, sometimes not. But I will continue to try.