TERRY GROSS FRESH AIR
In a profile of Ginsburg for this week's New Yorker, Jeffrey Toobin describes how the incremental philosophy of litigation that helped her win many precedent-setting women's rights cases as a lawyer is reflected in her career as a Supreme Court justice.He writes, "Ginsburg has suggested that she would like to serve as long as Louis Brandeis, her judicial hero, who retired at eighty-two." Ginsburg turns 80 this month and is marking her 20th year on the court. She has had cancer — colon and pancreatic — and her tiny, frail-looking stature leads many people to wonder if she'll be retiring soon.
"Looks are deceiving when it comes to Ruth Bader Ginsburg," Toobin tells Fresh Air's Terry Gross. "She looks like a stiff wind would blow her over ... but it turns out she's kind of the monster of the Supreme Court gym. Who knew, right? She is someone who is just small, but she is tough as nails. She's got all her marbles. She works out regularly, and she is not leaving imminently."
Ginsburg is on the liberal wing of the court, which these days is usually often in the minority. Toobin says that while she would like to retire while a Democrat is in the White House, the irony of her current status is that she has never been more powerful at the court. He says that the three other liberal justices — Elena Kagan, Sonia Sotomayor and Stephen Breyer — defer to her, especially when they are in dissent.
"The four liberals are not fragments," says Toobin. "They are together, and that's really Ginsburg's work. ... That is a matter ... of persuasion. She has said, 'We would be more powerful. We would have more of an impact on — potentially — other courts or the future of the courts if we — the four of us — speak together. I think it's testament to Ginsburg's respect that she engenders among her colleagues that even though the other three don't have to defer to her, they do.
Yet she knows that the clock is ticking. And I think at the end of the day she will leave during Obama's presidency but not this year and maybe not next year. Health permitting, which I think health will permit, probably in the third year of Obama's presidency."
Jeffrey Toobin
Here are highlights fromt the interview:
GROSS: So you describe her as the leader of the liberal wing of the court, and you write that to a greater extent than Stevens, Ginsburg has united the four justices so that they speak with a single voice, especially when they are in dissent. In what sense?
TOOBIN: Well, you know, Supreme Court justices in any given opinion are allowed to write concurring or dissenting opinions to their hearts' content. There is no rule that says there has to be one dissenting opinion in a case. But what we have seen in the last two years, since Stevens has left, is that the four liberals, especially when they are in dissent, are really speaking with one voice.
That was certainly dramatically illustrated in the health care case, where Ginsburg wrote an opinion saying that the commerce clause did allow the individual mandate of the Affordable Care Act. Of course that law was upheld on another ground, that it was an appropriate use of the taxing power.
In cases about campaign finance, in cases about a separation of church and state, the four liberals are not fragmented. They are together, and that's really Ginsburg's work.
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GROSS: Ruth Bader Ginsburg, before even getting to the Supreme Court, made her reputation litigating cases pertaining to equal rights for women. Would you just run through what some of those important cases were?
TOOBIN: Well, it's important to remember where the law was before Ginsburg started taking these cases in the 1970s. In the 1960s, even the so-called liberal Warren court was happy to approve laws that treated men and women differently. There's a famous case from the early '60s where a Florida law said men were required to serve on juries, but women could turn it down.
And this was a murder case involving a woman who was accused of murdering her husband, and she said, look, it's a violation of equal protection to say that, you know, women, who might be sympathetic to my argument, could get out, whereas men had to be on the juries. And the Supreme Court said no, no, no, women's real function is to be at the home, so it's OK.
And there were a lot of these patronizing laws that treated men and women differently. And Ginsburg really started challenging these laws in the 1970s. One of the first important cases involved an Idaho law that said when someone died, and a man and a woman could both be considered to be the executor of the will, the man should be preferred.
And the assumption was men knew more about financial affairs. And Ginsburg wrote the brief in this case - it's called Reed v. Reed - and the Supreme Court unanimously said this was based on outmoded notions of relations between the sexes, and it could not stand under the 14th Amendment to the Constitution.
And with that she went after case after case that indicated usually sort of patronizing laws about whether women were expected to work, whether women could expect to be on juries, and she won five of the six cases she argued and established precedents that stand even today.
GROSS: You describe her approach in litigating women's rights as incremental, case by case as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.
TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court, or so she thought, and history proved her right, at least in her case, that you don't ask for too much.
So she would talk about each individual law on the merits, whether it was a law regarding pensions. Women were expected to be dependent, so they automatically got a pension when their husbands died, but men were not expected to be dependent, so when their wives died, they had to prove that they were dependent.
So she had a man client in that case, and she won that case, again unanimously. And she sort of took on the patronizing assumptions of each individual case, but she didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional.
GROSS: And she thought that she'd make more progress this way? I mean, was that a practical decision or just a belief that every law should be taken on its own terms?
TOOBIN: That's an interesting question, and I'm not sure I know the ultimate answer to that. But I think she clearly thought as a litigation strategy that when you were dealing with a court of nine men, which of course it was in those days, it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States.
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GROSS: ...She gave a lecture in 1992 that you write about. It's called "The Madison Lecture," which was delivered at the NYU Law School. And talk about this lecture and what it revealed about her legal philosophy.
TOOBIN: Well, the great women's rights landmark that Justice Ginsburg did not argue as a lawyer was Roe v. Wade rights case. And that case was litigated and decided very differently from the way Ginsburg's cases were decided. Roe v. Wade, Justice Blackmun's opinion for the court didn't just declare the Texas law at issue unconstitutional. It said that every law in every state that barred early abortions for women was now unconstitutional.
And Ginsburg in this lecture said that she thought the court was wrong to do that in Roe v. Wade. Ginsburg is a supporter of abortion rights, but she thought the court went too far too quickly in ordering every state in the union, and she thought it set off a political backlash that actually wound up hurting the cause of women's rights.
I think that's a very debatable proposition, but I think it is indicative of her careful step-by-step approach that's very different from some liberals, like say, Thurgood Marshall or William Brennan or Harry Blackmun, who wrote Roe v. Wade.
GROSS: And she wanted the legalization of abortion to be - she would have preferred that the legalization of abortion be a dialogue with legislators. What did she mean?
TOOBIN: What she meant is that she thinks that political change in the United States by and large comes from the political branches of government, that real change, substantive change that's enduring, needs to come through the democratic branches, through the executive, through the legislatures, through the states, and that courts imposing social change is risky and should generally be avoided.
So she has written that in the '70s, many states were liberalizing their abortion laws, and it would have been better for the court to, yes, strike down the Texas law but also let the other states progress politically towards the goal of legal abortion rights rather than just having the court impose it.
Now, I think historically that's a questionable assumption. It is far from clear that all the states would eventually have legalized abortion, as Ginsburg seems to assume. But I think again, it's indicative of her cautious approach to how the courts should behave, you know, when it comes to controversial social issues.
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GROSS:...So in talking about Justice Ginsburg's idea that the judiciary should be in dialogue with the legislature, you know, with lawmakers, she kind of demonstrated that when she wrote the dissenting opinion in the Lilly Ledbetter case that - so why don't you just briefly describe her dissent and the argument that she made from the bench kind of directly addressing legislators.
TOOBIN: It was - it's really an amazing story about the power of a dissent in the Supreme Court because the - she lost the Lilly Ledbetter case. Lilly Ledbetter was a woman who worked at a Goodyear factory in Alabama, and she learned very much towards the end of her career that she had been dramatically underpaid compared to the men, the comparable men at the factory.
And she sued for violation of Title VII, which prohibits sex discrimination. And she won $3 million at her trial, but the Supreme Court five to four overturned the judgment, saying that because she filed late in her career, she had violated the statute of limitations. She brought her case too late.
Now Ginsburg in her dissenting opinion said that's ridiculous because she didn't know for years that she had been discriminated against, so how could she have sued? And so - and she said the Supreme Court was interpreting Title VII all wrong.
But what she did in her dissenting opinion was instead of just addressing the legal niceties, she really called on Congress and said, look, Congress, you can change the law. The Supreme Court is merely interpreting your law, so you should rewrite it and make it clear. And as it happened, that opinion came out in 2007 just as the Democrats had retaken control of the House and Senate and just as the presidential campaign was getting underway.
And Barack Obama and Hillary Clinton took this case, the Lilly Ledbetter case - which had actually been very obscure, not many people were following it - but made it a cause all because of Ginsburg's dissent.
And to go forward to 2009, when Obama was inaugurated, the first law that he signed as president is now known as the Lilly Ledbetter Fair Pay Act, and a signed copy of that law stands in Ginsburg's chambers with thanks from now President Obama. And it's just a remarkable success story from a case that Ginsburg lost.
GROSS: ...Justice Ginsburg told you that she thinks that if Justice O'Connor had stayed on the court instead of retiring in 2006 that some of the five-to-four decisions that came out on the side of the conservative part of the court would have landed on - in favor of the liberal side of the court. I thought that was very interesting.
Did she offer any specific examples of cases that she thought would have swung the other way?
TOOBIN: Well, there's one clearly very famous one, which is Citizens United, which I think we all know is an enormously important opinion. And I think Justice Ginsburg's recognition of the replacement of Justice O'Connor by Justice Alito is really the dramatic change in the court for the last probably 20 years.
Justice Alito has turned out to be so much more conservative than Justice O'Connor, who was, I think it's safe to say, very much moving left as her career ended. I think that Citizens United would have gone the other way, and that alone is a pretty big deal.
GROSS: ... Justice Sandra Day O'Connor, I found them such interesting contrasts. You know, Ginsburg devotes so much of her judicial career litigating cases, asking for equal rights, for equality for women. And both Ginsburg and O'Connor faced a lot of discrimination when they were starting off in their legal career.
They both found it very difficult to get jobs. And Sandra Day O'Connor talked about how when she got out of law school, 40 law firms or more than 40 law firms turned her down for an interview, and several of them said we don't hire women, something that wouldn't even be legal to say today.
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TOOBIN: ...Justice O'Connor was very aware of sexist treatment that she received both before and after her appointment to the Supreme Court. And, you know, she, like Justice Ginsburg, had excellent radar for being patronized by her colleagues and most especially Justice Scalia.
So I think there is a remarkable - there are actually many more parallels between Ginsburg and O'Connor than there are differences, starting with their academic distinction and difficulties getting jobs. Also, I think the affection between them was so real.
I remember interviewing Justice Ginsburg once during that period before Justice Sotomayor was appointed, where she was the only woman on the court, and she hated that. I mean, she really didn't like being the only woman on the court, and she liked the fact - and O'Connor liked the fact that they were different in many ways.
You know, here you have O'Connor, this tall, outgoing, rangy Westerner and Ginsburg this bookish Brooklynite, and they both liked the idea that it showed that women aren't just one way in the world, that women are complicated and different from one another, yet it's important that women also be represented. And all - both of them are fierce advocates for more women judges and more women in all positions of power.
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GROSS: ...Let's take a break here, then we'll talk more about issues currently facing the Supreme Court. This is FRESH AIR.
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GROSS: The longer you've gotten a chance to observe Justice Kennedy as the so-called swing vote, do you feel like you've gotten a better idea of where he stands on different issues? Is he easier to predict?
TOOBIN: I do think, you know, we make a mistake sometimes, I think, in calling him the swing vote, with the implication that he's a moderate. Justice O'Connor was a moderate. Justice Kennedy is actually an extremist in many of his views. He just has varied enthusiasms. He is mostly as conservative as a Justice Scalia - that's somewhat of an overstatement, but nearly as conservative as Justice Scalia on many, many issues. There are a handful of issues, like the death penalty, like gay rights, where he has been pretty liberal. But - so it's only in those areas where he is likely to be a swing vote.
GROSS: I want to ask you your impression of the very controversial comments that Justice Scalia made last week pertaining to Section 5 of the Voting Rights Act. Just as background, Jeffrey, do you want to explain what Section 5 is?
TOOBIN: Section 5 of the Voting Rights Act says that certain parts of the country - basically nine states in the South with a handful of other small counties - have to get pre-clearance. They have to get permission from the Justice Department to make any changes in their electoral system, from the location of voting places to redistricting legislative lines, because they have this history of discrimination.
GROSS: Section 5 passed in Congress with a vote of 98 to 0 in the Senate and 390 to 33 in the South. ...And Justice Scalia said that this congressional vote, this overwhelming vote to renew Section 5, that it's very likely attributable to a phenomenon that is called perpetuation of racial entitlement. Whenever a society adopts racial entitlements, it's very difficult to get out of them through the normal political process. And then Justice Scalia goes on to say it's not a concern - this is not the kind of question you can leave to Congress. So what were your impressions? Were you surprised that he said any of this?
TOOBIN: You know, something sad is going on with Justice Scalia right now. The - if you look at all nine justices on the Court in terms of their historical importance, I think Justice Scalia probably ranks number one because he has really revolutionized constitutional law through his theory of originalism, that the Constitution should be interpreted as the framers intended. And, you know, whether you agree or disagree with that, it's been a major intellectual contribution to this country, and he has been a formidable conservative intellectual. But in the past couple of years he's turning into a right wing crank who sounds more like a talk radio host than a Supreme Court justice. It wasn't embarrassingly true in the Arizona immigration case last year. I think these sort of really silly intemperate political judgments from the bench in the Voting Rights Act are also indicative of it, and I think he's really starting to embarrass himself and the Court with really ugly sentiments that don't do justice to the rest of his career.
GROSS: He considers himself opposed to judicial activism, but he's saying you can't leave this issue to Congress. Congress voted for this overwhelmingly but we can't leave it to them, we have to undo it. Is that judicial activism?
TOOBIN: One of the signatures of the conservative moment in the Supreme Court right now has been this enormous embrace of judicial activism, you know, telling Congress that it can't pass the Voting Rights Act, telling Congress it can't pass the McCain-Feingold law in Citizens United, all - telling the State of Texas that it can't adopt an affirmative action plan. All of these are the conservatives on the court second-guessing democratically elected branches of government, which is precisely what they always accuse the liberals of doing.
Which the liberals sometimes do do, but at least the liberals have sort of the intellectual honesty to say, look, we just don't think these laws pass constitutional muster. But conservatives supposedly believe in judicial restraint as a bedrock principle of what they stand for, and we see them reject it again and again.
GROSS: When you say that Scalia's comments - Justice Scalia's comments are an embarrassment to himself and to the court, this is just speculation - do you think any justices in the court would say anything to him about it?
TOOBIN: The only person who would would be Chief Justice Roberts, and much as I value my own reporting skills, I'll never know if he did, because this is sort of the private of the most private kinds of relationships among the justices, just at the same way - you remember when Clarence Thomas's wife Virginia was taking such an outspoken role in opposing the Obama administration? And her public role stopped on a dime.
... Chief Justice Roberts is exquisitely aware of the public reputation of the Supreme Court and he is very jealous, appropriately so, of the court's public reputation, and this is precisely the kind of thing he does not want.
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GROSS: So finally, since I did just talk to Justice Sandra Day O'Connor yesterday, I want to ask you about something that I asked her, which related to something that you had said. And in one of our previous interviews when you and I were talking about Bush v. Gore, you had said that Justice O'Connor, who was the swing vote in that decision and sided with the conservatives, you said that she later regretted the decision.
And when I mentioned that to her, she said, I don't know why he said that. I have not said that myself and it's not anything I want to weigh in on. There's no point at this point in me saying I regret some decision I made. I'm not going to do that. I'm not going to do that. And I said, so you say you never really said that? And she says, I hope I didn't. So any comment?
TOOBIN: To know Justice O'Connor as I am privileged to do is to know that the word regret never passes her lips. She is a forward-looking person. She's a Westerner. She is someone who is always thinking about the future, and you know, it's one of the absolutely great things about her. Did she regret her vote in Bush v. Gore? Did she regret the Bush presidency? You bet she did, and you bet she does.
The war in Iraq. The war on terror. John Ashcroft as attorney general. The Terri Schiavo case. All of these things filled Justice O'Connor with revulsion and you can be sure that her vote in Bush v. Gore weighs on her mind. Now, regret it? Saying she regret it? No. Did she regret it? You bet.