On Friday, January 4, I appeared on KVEC News/Talk 920 AM and 96.5 FM to talk about Ruth Bader Ginsburg.
On Thursday, January 3, I did a Q&A on Ruth Bader Ginsburg as part of the SLO Jewish Film Festival.
The radio show is here as a podcast.
Here is a transcript of a four of the questions and answers:
Q: What was the most surprising thing you learned about Ruth Bader Ginsburg?
What surprised me most will probably surprise a lot of other people, too.
Ginsburg disapproved of the Supreme Court decision in Roe v. Wade. She thought women should have the right to choose, but she thought the court made a few mistakes with that decision.
For one thing, she didn’t like the justification the Court used. The Court based its decision on a constitutional right to privacy. Of course the problem with that is there is nothing in the Constitution about privacy. Ginsburg would have preferred the case to have been decided under the equal protection clause of the Fourteenth Amendment. She thought the issue was autonomy, not privacy.
She also disliked all that talk about a woman and her doctor, which she felt patronized the woman.
The bigger problem for her was that she thought the ruling was too broad. The issue in Roe v. Wade was the constitutionality of a Texas law that made it a crime for a doctor to perform an abortion (except to save a woman’s life).
The Texas law was one of the harshest in the country. At the time the decision came to the court, states all over the country were changing their laws, decriminalizing abortion and making them more available.
Instead of just saying “No, this law goes too far,” and sending the case back to Texas for a do-over, the Court issued a broad ruling saying that women have a constitutional right to an abortion.
Ginsburg thought the Court should have issued a narrow ruling striking down the excessive parts of the law. This would have opened a dialogue between other branches of government and the public, instead of the Supreme Court sending down a broad pronouncement like a lightening bolt.
She predicted that a broad Supreme Court ruling would politicize abortion, mobilize the far right wing, and prompt a backlash. She was right. We’re still riding that backlash. She had her own abortion case working its way through the court system. She always regretted that her case hadn’t come to the Supreme Court first. She thought she would have done a better job and would have requested the correct remedy.
Why did you write this book?
I’ve always been interested in the history of women, and women lawyers, in particular. What’s interesting about women who went to law school before the 1950s is that the qualities expected of a lawyer were directly contrary to society’s expectations for a woman.
Woman were seen as fragile, emotional, less logical and analytical, and thus unfit for public life. A lawyer is an officer of the court. It’s a public position, and a position of authority. Lawyers are expected to think rationally and possess a certain strength or toughness.
Women who had the gumption and stamina or whatever it took to work around these barriers often found themselves more significant positions than if the barrier hadn’t been there. This was certainly true of Ruth Bader Ginsburg.
What do you think will be Ruth Bader Ginsburg’s greatest legacy?
Before becoming a judge, Ginsburg had a distinguished career as a leading equal rights lawyer. I think her greatest legacy will be her litigation strategy that helped change the equal protection law (under the Fourteenth Amendment) in the United States.
Can you talk about the challenges Ginsburg faced as an equal rights lawyer?
In the late 1960s, Ginsburg took on the task of changing the laws so that women could have equal rights.
This meant getting the Supreme Court to overrule previous decisions. That happens rarely because our legal system is based on the idea of precedent, or stare decisis, which literally means to let the decision stand. Once an issue is decided, the ruling becomes law, and future rulings follow the precedent.
Without the system of legal precedent, a culture cannot have stability. You can’t have the laws changing all the time. People would never what the law is, and it would change with each judge. In fact, the Supreme Court has said it’s better for a case to be settled than settled correctly.
Ginsburg set herself the task of overturning more than a century of Supreme Court precedent. For an idea of what she was up against, here are a few passages from a court decision:
God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws was regarded as an almost axiomatic truth.
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.
(Bradwell v. The State, 83 US 130, 132-142 (1873).)