THE HONORABLE RUTH BADER GINSBURG
~ ASSOCIATE JUSTICE
~ ~ UNITED STATES SUPREME COURT

February 6, 2018

PROGRAM

ANTHONY W. CROWELL
DEAN AND PRESIDENT, NEW YORK LAW SCHOOL
Welcome

SYBIL SHAINWALD, ESQ.
Introductory Remarks

KENNETH R. FEINBERG
Introduction of Chief Judge Robert A. Katzmann

THE HONORABLE ROBERT A. KATZMANN
CHIEF JUDGE UNITED STATES COURT OF APPEALS, FOR THE SECOND CIRCUIT
Introduction of Justice Ruth Bader Ginsburg

A Conversation with
THE HONORABLE RUTH BADER GINSBURG
ASSOCIATE JUSTICE, UNITED STATES SUPREME COURT
and
NADINE STROSSEN
JOHN MARSHALL HARLAN II PROFESSOR OF LAW NEW YORK LAW SCHOOL

ARTHUR N. ABBEY
CHAIRMAN OF THE BOARD OF TRUSTEES
Closing Remarks

RUTH BADER GINSBURG: Biography

Ruth Bader Ginsburg, Associate Justice, was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959 to 1961. From 1961 to 1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963 to 1972, and Columbia Law School from 1972 to 1980, and a fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California from 1977 to 1978. In 1971, she co-founded the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973 to 1980, and on the National Board of Directors from 1974 to 1980. She served on the Board and Executive Committee of the American Bar Foundation from 1979 to 1989, on the Board of Editors of the American Bar Association Journal from 1972 to 1978, and on the Council of the American Law Institute from 1978-1993. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.

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Some of you asked me during recent visits why I want to be on the Supreme Court. It is an opportunity beyond any other for one of my training to serve society. 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.

Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither liberal nor conservative. Rather, it is rooted in the place of the judiciary, of judges, in our democratic society. The Constitution’s preamble speaks first of “We, the People,” and then of their elected representatives. The judiciary is third in line and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group. (p. 184)

Supreme Court Justices are guardians of the great charter that has served as our nation’s fundamental instrument of government for over two hundred years. It is the oldest written constitution still in force in the world. 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. (p. 183)

Rule of law virtues of consistency, predictability, clarity, and stability may be slighted when a court routinely fails to act as a collegial body. Dangers to the system are posed by two tendencies: too frequent resort to separate opinions and the immoderate tone of statements diverging from the position of the court’s majority. (p. 233)

[T]he effective judge, I believe and will explain why in these remarks, strives to persuade, and not to pontificate. She speaks in “a moderate and restrained” voice, engaging in a dialogue with, not a diatribe against, coequal departments of government, state authorities, and even her own colleagues. (p. 229)

In sum, the U.S. Supreme Court in the 1970s, as I see it, effectively carried on in the gender discrimination cases a dialogue with the political branches of government. The Court wrote modestly, it put forth no grand philosophy. But by propelling and reinforcing legislative and executive branch reexamination of sex- based classifications, the Court helped to ensure that laws and regulations would “catch up with a changed world.” (p. 162)

My remarks portray the progress of women at the bar and on the bench in the United States. Remembering the past, I am heartened by the progress. Yet, as the numbers reveal, women in law, even today, are not entering a bias-free profession. (p. 69)

Tonight I speak about a woman of courage who would not be put down, a woman who, in 1879, made the U.S. Supreme Court change its ways. Her name, Belva Ann Lockwood, her birth year, 1830. Lockwood was the first woman ever to gain admission to the U.S. Supreme Court’s Bar, the first woman to argue a case before the nine Justices, and the first woman to run the full course for president....

Unflagging effort marked her path to achievement. In 1869, then a mother of two approaching her thirty-ninth birthday, Lockwood applied for admission to D.C. area law schools. Her applications were rejected on a ground familiar in those not-so-good old days: Her presence, she was told, “would .... distract the attention of the young men” in the class. Lockwood persevered until the National University Law School (today, the George Washington University Law School) allowed her to matriculate. She encountered yet another impediment when the school refused to confer upon her the diploma she had earned....

Lockwood sought more than suffrage. She urged full political and civil rights for all women. Though she could not vote for president, she twice ran for the office herself, pointing out that nothing in the Constitution barred a woman’s candidacy. (She took that bold step 124 years before Hillary Rodham Clinton first became a contender for the Democratic Party’s nomination.) Explaining why she entered the race, she wrote in a letter to her future running mate, Marietta Stow: “We shall never have equal rights until we take them, nor equal respect until we command it.” (pp. 65-67)

Once granted admission to law schools, women were not greeted by their teachers and classmates with open arms and undiluted zeal. An example from the University of Pennsylvania Law School: In 1911, the student body held a vote on a widely supported resolution to compel members of the freshman class to grow mustaches.

The bar’s reluctance to admit women into the club played out in several inglorious cases. In denying Myra Bradwell admission to the bar, the Illinois Supreme Court observed in 1869 that, as a married woman, Bradwell would not be bound by contracts she made. The Illinois court thought it instructive, too, that female attorneys were unknown in the mother country. (p. 70)

As late as 1968, the law remained largely a male preserve. Textbooks and teachers at that time so confirmed. A widely adopted first-year property casebook published in 1968, for example, made this parenthetical comment: “[F]or, after all, land, like woman, was meant to be possessed.” (p. 71)

In the 1970s, a revived feminist movement blossomed in the United States. I was in those years a law teacher, general counsel to the American Civil Liberties Union, and a founder of the ACLU’s Women’s Rights Project. It was my good fortune to be in the right place at the right time, able to participate in the effort to place women’s rights permanently on the human rights agenda in the United States. (p. 154)

At the ACLU Women’s Rights Project, launched early in 1972, and in the law school seminars I conducted first at Rutgers...., then at Columbia University, work progressed on three fronts: we sought to advance, simultaneously, public understanding, legislative change, and change in judicial doctrine. (p. 155)

Those with whom I was associated at the ACLU kept firmly in mind the importance of knowing the audience—largely men of a certain age. Speaking to that audience as though addressing one’s “home crowd” could be counterproductive. We sought to spark judges’ and lawmakers’ understanding that their own daughters and granddaughters could be disadvantaged by the way things were. (pp. 157-158)

Mid-nineteenth-century feminists, many of them diligent workers in the cause of abolition, looked to Congress after the Civil War for an express guarantee of equal rights for men and women. But the text of the Fourteenth Amendment appalled the proponents of a sex equality guarantee. Their concern centered on the abortive second section of the amendment, which placed in the Constitution for the first time the word male. Threefold use of the word male, always in conjunction with the term citizen, caused concern that the grand phrases of the first section of the Fourteenth Amendment—due process and equal protection of the laws—would have, at best, qualified application to women.

After close to a century’s effort, the suffrage amendment was ratified, according to female citizens the right to vote. The most vigorous proponents of that amendment saw it as a beginning, not as a terminal point. Three years after the ratification of the Nineteenth Amendment, the National Woman’s Party succeeded in putting before Congress the equal rights amendment that has been reintroduced in every Congress since 1923. (pp. 140-141).

The Equal Rights Amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability. (p. 148).

Will major legislative revision occur without the impetus of the Equal Rights Amendment? Probably not if past experience is an accurate barometer. Scant state or federal legislative attention focused on the discriminatory statutes identified by the National Woman’s Party in the 1920s. After Congress passed the Equal Rights Amendment, it remained unwilling to ban sex discrimination in admissions to undergraduate schools, although the 1971 Newman report informed it that “discrimination against women, in contrast to that against minorities, is still overt and socially acceptable within the academic community.” As a graphic illustration, the 1969 profile of the freshman class at a well-known state university cautions: “Admission of women on the freshman level will be restricted to those who are especially qualified.” A candid response came from the Air Force Academy this year: We will enroll women in 1975 if the amendment is ratified, the superintendent said. If the amendment is not ratified, women will have to wait a long time before they can expect to enroll. (p. 143).

A question I am often asked: What does women’s participation in numbers on the bench add to our judicial system? It is true, as Jeanne Coyne of Minnesota’s Supreme Court famously said: at the end of the day, a wise old man and a wise old woman will reach the same decision. But it is also true that women, like persons of different racial groups and ethnic origins, contribute what the late Fifth Circuit Judge Alvin Rubin described as “a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.” Our system of justice is surely richer for the diversity of background and experience of its judges. It was poorer when nearly all of its participants were cut from the same mold. (p. 77)

The institution we serve is ever so much more important than the particular individuals who compose the Court’s bench at any given time. And our job—the job of judging in a U.S. federal court generally—is, in my view, the best work a U.S. lawyer could wish for. We serve no client, our commission is to do what is right—what the law requires and what is just. (p. 213)

Another often-asked question when I speak in public: “Do you have some good advice you might share with us?” Yes, I do. It comes from my savvy mother- in-law, advice she gave me on my wedding day. “In every good marriage,” she counseled, “it helps sometimes to be a little deaf.” I have followed that advice assiduously, and not only at home through fifty-six years of a marital partnership nonpareil. I have employed it as well in every workplace, including the Supreme Court of the United States. When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade. (Preface, xv)

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. (p. 182)

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. (p. 182)

I am a judge, born, raised, and proud of being a Jew. The demand for justice runs through the entirety of the Jewish tradition. I hope, in all the years I have the good fortune to serve on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in the service of that demand. (p. 88)

High on my list of inspirers is Emma Lazarus, cousin to the great jurist Benjamin N. Cardozo. Emma Lazarus was a Zionist before that word came into vogue. She wrote constantly, from her first volume of poetry published in 1866 at age seventeen, until her tragic death from cancer at age thirty-eight. Her love for humankind, and especially for her people, is evident in all her writings. Her poem “The New Colossus,” etched on the base of the Statue of Liberty, has welcomed legions of immigrants to the United States. (p. 86)

....I have lived long enough to see big changes. Who would believe, for example, in the 1950s when Justice O’Connor and I graduated from law school, that two women no law firm would hire simply because we were women, would one day be seated on the highest Court in the land? Or that the president of the United States would be an African-American, himself the child of an interracial marriage? Yes, we still have a way to go to ensure that all people in our land enjoy the equal protection of the laws, but considering how far we have come there is good cause for optimism about our country’s future. (p. 267)

Scalia/Ginsburg is for me a dream come true. If I could choose the talent I would most like to have, it would be a glorious voice. I would be a great diva, perhaps Renata Tebaldi or Beverly Sills.... Even so, I grew up with a passion for opera, though I sing only in the shower, and in my dreams. (pp. 43-44).

I would like my granddaughters, when they pick up the Constitution, to see that notion—that women and men are persons of equal stature—I’d like them to see that is a basic principle of our society. (p. 140)

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NADINE STROSSEN: Biography

Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School, has taught and advocated extensively in constitutional law, civil liberties and international human rights. She is the immediate past President of the American Civil Liberties Union (1991-2008), the first woman to head the nation’s largest and oldest civil liberties organization. Strossen now serves on the ACLU’s National Advisory Council, as well as the National Advisory Boards of the Electronic Privacy Information Center (EPIC), the Foundation for Individual Rights in Education (FIRE), and Heterodox Academy (HxA). The National Law Journal has named Strossen one ofAmerica’s “100 Most Influential Lawyers,” and several other national publications have named her one of the country’s most influential women. In 2017, Strossen received the American Bar Association’s Margaret Brent Women Lawyers of Achievement Award.

When Strossen stepped down as ACLU President in 2008, three Supreme Court Justices (Ruth Bader Ginsburg, Antonin Scalia, and David Souter) participated in her farewell/tribute luncheon. Strossen’s forthcoming book, HATE: Why We Should Resist It With Free Speech, Not Censorship will be published by Oxford University Press in May 2018. Prominent First Amendment lawyer Floyd Abrams said the following about it: “Nadine Strossen’s insightful and eminently readable study on why we protect [hateful] speech and why we should continue to do so is an all-too-rare example of first-rate legal scholarship that the public at large can learn from and savor reading.”

When Strossen received the ABA’s Brent Award, the August, 2017 ABA Journal profile of her stressed the crucial impact that Ruth Bader Ginsburg has had on Strossen’s career:

Strossen says one of her most inspiring moments as a law student at Harvard University was attending a guest lecture by fellow Brent award honoree Ginsburg. “She was then serving as the founding director of the ACLU Women’s Rights Project, and she ignited my interest in the ACLU as the ideal avenue for promoting ‘liberty and justice for all,’ ” Strossen says.

Strossen adds: “Justice Ginsburg has continued to serve as an incredibly generous, inspiring mentor throughout my career, including by graciously accepting an invitation to address the 1999 NYLS Law Review banquet and by speaking at the luncheon in my honor when I stepped down as ACLU President. She is the role model whom I aspire to emulate in my interactions with students and younger lawyers.”

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KENNETH R. FEINBERG: Biography

Kenneth R. Feinberg is one of the Nation’s leading experts in alternative dispute resolution, having served as Special Master of the 9/11 Victim Compensation Fund, the Department of Justice Victims of State-Sponsored Terrorism Fund, the Department of the Treasury’s TARP Executive Compensation Program and the Treasury’s Private Multiemployer Pension Reform program. He was also Special Settlement Master of the Agent Orange Victim Compensation Program. In 2010, Mr. Feinberg was appointed by the Obama Administration to oversee compensation of victims of the BP oil spill in the Gulf of Mexico. Most recently, he has served as Administrator of the New York State Dioceses’ Independent Reconciliation and Compensation Funds, the One Orlando Fund, the GM Ignition Switch Compensation Program, and One Fund Boston Compensation Program arising out of the Boston Marathon bombings. He is currently the Court-appointed Settlement Master in the Fiat/ Chrysler Diesel Emissions class action litigation in San Francisco. He has been appointed mediator and arbitrator in thousands of complex disputes over the past 35 years.

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ROBERT A. KATZMANN: Biography

Robert A. Katzmann is Chief Judge of the U.S. Court of Appeals for the Second Circuit, assuming that position on September 1, 2013. At his appointment to the federal bench in 1999, he was Walsh Professor of Government, Professor of Law and Professor of Public Policy at Georgetown University; a Fellow of the Governmental Studies Program of the Brookings Institution; and president of the Governance Institute.

A lawyer and political scientist by training, Judge Katzmann received his A.B. (summa cum laude) from Columbia College, A.M. and Ph.D in government from Harvard University, and a J.D. from the Yale Law School, where he was an Article and Book Review Editor of the Yale Law Journal. After clerking on the U.S. Court of Appeals for the First Circuit, he joined the Brookings Institution, where he was a research associate, senior fellow, visiting fellow, and acting program director. His books include: the recently published Judging Statutes; Regulatory Bureaucracy; Institutional Disability; Courts and Congress; editor and project director of The Law Firm and the Public Good; co-editor of Managing Appeals in Federal Court; editor and contributing author of Daniel Patrick Moynihan: The Intellectual in Public Life; and editor and contributing author of Judges and Legislators. In 2007, he delivered the Marden Lecture of the New York City Bar Association, “The Legal Profession and the Unmet Needs of the Immigrant Poor” and later launched the Study Group on Immigrant Representation from which emanated the New York Immigrant Family Unity Project, the first government funded program providing counsel for detained non- citizens. He conceived of and sparked the creation of the Immigrant Justice Corps, the country’s first fellowship program dedicated to meeting the need for high-quality legal assistance for immigrants.

As Chief Judge, he launched a wide-ranging civic education initiative of the federal courts of the Second Circuit: “Justice For All: Courts and the Community” to increase public understanding of the federal judiciary and to bring courts closer to the communities they service. During his tenure as Chief Judge, the Court of Appeals has also undertaken a 125th anniversary retrospective.

His honors include the Learned Hand Medal of the Federal Bar Council, the Edward Weinfeld Award of the New York County Lawyers Association, the Fuld Award of the New York State Bar Association, the Green Bag award for legal writing, the Charles E. Merriam Award of the American Political Science Association, membership as a fellow of the American Academy of Arts and Sciences, and honorary degrees from New York Law School, John Jay College, and Pace University. He has served on many judicial and governmental committees, and on law school boards, including as Chair of the U.S. Judicial Conference Committee on the Judicial Branch, and as a Commissioner of the Supreme Court Fellows Commission.

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EXCERPTS & EXTRAS: Downloadables

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