Transcripts For CSPAN3 Supreme Court Justice Ruth Bader Ginsburg On 100th Anniversary Of Womens... 20200210

i am honored to open this event and introduce to you judy martinmart martin martinez. she's the president for the aba 2019-2020 year. she's served on numerous aba groups including chair of the committee that evaluates nominees to the supreme court. she serves as the lead representative to the united nations and as a be about of the amp ba board of governors and executive committee. she was chair of the aba presidential commission of legal services and commission on domestic violence. she was also a member of the aba commission on women in the profession. its task force in building trust in the american justice system. and its counsel of the aba center on diversity. president martinez worked at northrup grummann as assistant general counsel before becoming president and chief compliance officer. she spent a year in residence at harvard university before returning to simone. we're delighted to have her here today. please union me in welcoming president martinez. [ applause ] thank you, and thanks to all of you who are gathered here today. the 19th amendment centennial offers us a once-in-a-lifetime opportunity to celebrate a watershed of american history that paved the way for the largest expansion of democracy in the history of our nation. this year we recognize courageous historical efforts to gain and exercise the right to vote. the suffrage movement created unprecedented and long overdue opportunities for women to become involved politically serving as a model for activists today. as we celebrate we'll not squander the historical gift of the 19th amendment because we must also examine the challenges of democracy and equal rights that face us today. the suffrage movement was neither wholly united, nor inclusive and ratification did not take a straight path forward. the movement was fractured in the approaches suffrage groups chose to follow. it was sometimes divided by race and class and at times haunted by racism. there are many legacies of the 19th amendment to explore an much more work to do not only for the benefit of women but also, of course, for the benefit of our entire democracy. we must overcome the barriers to full democratic participation. we must achieve full enfranchisement for those who bylaw currently have the right to vote and others who in a just society should have the right to vote. while the 15th and 19th amendments meant voting rights could no longer be denied because of race or sex many voters still face ballot restrictions. some by misguided if not malignant design. there's accessory to polling places for people with disabilities. the american bar association is committed to promoting the democratic ovals that are the corner stone of equal justice under the law. that's why we're so proud to celebrate and participate in the commemoration of the 19th amendment. our efforts are led by honorable margaret mccuen who will be if a at the lie tating the conversation with justice ginsberg. we're providing resources to local bar associations, developing public education materials and devoting this year's may 1 law day to the theme entitled your vote, your voice, our democracy. the 19th amendment at 100. i thank georgetown law cool for being our gray house host and justice ginsberg for her participation in the program today. may our work together not only pay tribute to those who came before us and kriefd on our behalf but also help us make our democracy stronger in our own time for everyone. it's now my pleasure to introduce grace potter, editor-in-chief of the georgetown law review. grace has been working with the aba on a special edition of the georgetown lawyer journal that will be push languished later this year. before law cool grace's career centered on access to counsel initiative for detainees. she's serving in editor-in-chief. after graduation grace plans to work at a nonprofit doing impact litigation on public interest issues before clerking for the southern district of new york and then the 2nd circuit court of appeals. i give you grace. thank you. [ applause ] hello. my name is grace. i'm honored to be here and excited to witness a conversation between two extraordinary legal minds justice ginsberg and judge mccuen. as mentioned i'm up here because we at the journal are publishing a special issue commemorating the 100th anniversary of the 19th amendment. in our issue we'll have four pieces. it will cover the 19th edmontonedmontoamendment as it covers voting. these pieces will be authored by several professors. we're very excited to partner with the aba today and we're especially grateful for the honorable m. margaret mccuen who is the chair of the committee and is our partner on work on this special issue. now it's my pleasure to introduce judge mccuen. judge mccuen was nominated to the united states court of appeals for the 9th circuit in 1998 by president bill clinton. after becoming the first in her family to go to college we're proud she ended up here at georgetown law. she's cosmopolitaned to serve the georgetown law community by serving as chair of the georgetown law board of visitors for many years and receiving an honorary doctorate from georgetown law. she teaches at the university of san diego law school and received countless awards. most notable given today's partners of the event, judge mccuen has received the aba margaret brennan award for women of achievement award and the georgetown university law center award for public service. but i would be remiss if i didn't point out she's also won the girl scouts cool women award. i don't think there's ever been a more appropriate award or more appropriate recipient. besides the amazing credentials there's many additional reasons judge mccuen is cool. she was the first female partner at per kin. she argued before the supreme court. she chairs the environment committee and appointed by chief justice roberts to the national workplace conduct working group. she travels all over the world assisting foreigni isjudiciary h their judicial code and she survived an avalanche during a mountain climbing expedition in tibet. so i'm thrilled to invite cool woman the honorable m. margaret mccuen to the stage. thank you. [ applause ] >> thank you so much, everyone. please be seated. be seated. good evening and thanks to justice ginsburg for joining us tonight. i was looking at your justice ginsburg and i noticed you had a lot of name changes over the years. you were called kiki when you were little or kiki baby and then went by a more dignified name ruth. then you became professor ginsburg. then judge ginsburg and finally justice ginsburg. most people would just quit there but you have this new moniker of notorious rbg. can i just call you justice ginsburg? >> you can call me ruth. >> [ laughter ] >> okay. >> ruth. so on behalf of georgetown law school and the american bar, thanks for being here. i know these are two institutions which you had a long association and, of course, we're here tonight to celebrate the 100th anniversary of the 19th amendment. well, your career has both focused on equality very proudly. i want to go back and talk about the amendment. i know you said at one point that you wished your mother could have lived in an age when women could aspire and achieve and when daughters were treated equally to sons. >> daughters were cherished like sons. as much as sons. yes. >> so what do you imagine your mother would have been or done had she lived in such an age, and is it true that she marched on behalf of the 19th amendment? >> yes. my mother was 18 when the 9th amendment became a part of the constitution. so when she was 15 and 16, she took part in the parades in new yo york. you asked what she would have done? >> yes. >> my mother was one of the brightest people i knew. she might have been a university professor or university president, or a legal luminary but those were so far beyond her reach. she grew up in a large family. six of her siblings survived into adulthood. she graduated high school at age 15. only one person in that large family went to university. and that was the eldest son. my mother went to work at age 15 to help support the family because they would not have any income from the eldest son. but if any child would have a university education, it would not be the eldest daughter, it would be the eldest son. >> well, as we talk further, i will ask you whether you think we've actually achieved that situation where daughters are cherished as much as sons. but let me turn to the 19th amendment. justice harwin once wrote that the 9th amendment merely gives the vote to women. and i know that your dissent in the voting rights case shelby county suggested you might have a morrow bust view of what something like the 19th amendment means in terms of vote rights. so in your view what is the legacy of the 19th amendment? >> it was the first step towards equal citizenship stature for women. some of the suffragists had high hopes for the 19th amendment. strictly it says the right to vote shall not be denied or abridged on account of sex. but if women were to have equality in the political domain, that is if they were part of the political constituency and could vote, then how could you abide subordination of women in the civil domain. for example, if a woman wanted a loan, she to get her husband's permission. or he had to sign for it. the courts interpreted the 19th amendment strictly. so it gave the women the right to vote, just that. one of the controversies was about women serving on juries. and in the not so good old days women were not called for jury duty. and running for office. in some ways the 19th amendment was a miracle because everyone who voted for it in congress and in the states, it was all men. so suffragists had to sell votes for women to an all male audience and that was no easy task. but they had hoped that it would be more. i mentioned jury duty. and running for office. the national women's party was the more radical wing of the suffragist movement and their idea if the 19th amendment is going to are interpreted restrictively, we need something else. so they introduced the equal rights amendment in 1923 and almost every year thereafter until at last congress let it out. but their idea was the 19th amendment, but women should have equality in all fields of human endeavor so we made an equal rights amendment and at least in my view we still do. >> going back in time i think in 1973 you actually wrote in the 88 journal that we needed an equal rights amendment and one of the reasons you gave was it would be great for your granddaughters to pick up the constitution and see this equality in the constitution. >> i have been asked many times, well haven't you through the vehicle of the 14th amendment equal protection clause got into the place, about the same place where you would be with the eu are a, and my answer is, not quite although there is a startling difference if you pick up law books, state or federal, what is riddled with gender based differentials, almost explicit gender based differentials are now gone. every constitution in the world written since the year 1950, even afghanistan, has the equivalent of an equal rights amendment, and we don't. my notion was, i would like to show my grand daughters that the equal citizenship stature of men and women is a fundamental human right that should be right up there with free speech, freedom of religion, ban on discrimination based on race or national origin. so i think that the constitution says so we the people to perform a more perfect union, the union will be more perfect when that simple statement that men and it will and women are people of equal stature's is a fundamental instrument of government. so even if the argument is that it is largely symbolic, it is very important symbol. why should the rest of the world have the equivalent of an equality guarantee and the united states does not? >> as you also point out, there is a distinction between equal protection clause and then having an actual amendment that lays it out. years ago i was involved in some litigation involving extension of a deadline in the equal rights amendment and we recently had virginia passing equal rights amendment, so leaving aside whether any deadlines could be extended, what is your prognosis on when we will get an equal rights amendment on the federal level? >> i would like to see a new beginning, i would like to start over. there is too much controversy about latecomers, virginia long after the deadline passed, plus a number of states have withdrawn their ratification, so if you count a latecomer on the plus side, how can you disregard states that said, we have changed our minds? >> you had mentioned, women on juries and so i take some pride in being in wyoming which was the first territory and the first state to grant women the right to vote. >> i'm told and you can tell me if this is true, that the reason wyoming did that is that they wanted women to come out there and marry the man and subtle. >> well that is one reason. (laughs) we like to say how the west was won, but in fact the west was part of the east coast state by state territory by territory in adopting the right to vote, but there were several reasons, not all of them good, one was they would like to have women come out and mary, but in fact, women were actually populated in the territory quite significantly. one of the other reasons is at least one of the political parties was losing, and they thought maybe their only hope was to get more voters, and the only way to get more voters was to give women the right to vote. so sometimes good things come out of bad motives i suppose might be one way to say it. >> i'm sure you know that another state early on to give women the right to vote was utah. >> yes. while there is a great story actually about the 19th amendment in tennessee being the last to give the right to women and there was a particular legislator who was inclined to vote against it, but his mother that morning put a little note in his pocket and basically said do the right thing. >> be a good boy. (laughs) >> so i think it pays to listen to your mother because he ultimately voted and then of course that pushed the amendment over the line and we got the 19th amendment. so, it's interesting when you look at the language of the 19th amendment, of course it doesn't say anything about women at all, it talks about the right of citizens of the united states should not be denied or abridged on account of sex. >> but it was modeled after the 15th amendment. >> exactly, so it talked about citizens, not about women, and this catchphrase on account of sex, also has some similarity on the basis of sex, but language we see in the discrimination statute. so the public is quite familiar with this phrase on the basis of sex because the movie title on the basis of sex of which you are the star although you are not in it directly, and it was based on the first federal court case you had, morris versus the irs. so my question is going back to the notorious rbg moniker, you have become quite famous in addition to your work on the court, you have taken on kind of a movie star and fame that is probably somewhat unusual for a justice. how does one, i wouldn't say reconcile, but how do you deal with all of this? >> it is amazing. (laughs) and i am seem to be 87 years old, and everyone wants to take a picture with me. (laughs) >> if you are willing i think all of them would like to come down for a photo as well. (laughs) >> the notorious rbg was created by an and why you second year law student, it was the year the supreme court decided the shelby county case, which notified the key provision in the voting rights act of 1965. the law was passed in 1965, it was renewed periodically with large majorities on both sides of the aisle, and recently being renewed it was attacked on the ground that the formula, the way the voting rights act worked was, if you had a record of keeping african americans from voting, you could not pass any new election law without pre-clearing it either with the several rights division of the department of justice or a three judge federal district course in d.c.. that provided a check on laws that were aimed at suppressing minority voters, you couldn't pass the law unless you had it pre-cleared. the law was attacked as obsolete. the argument was that some states that might have discriminated in 1965 are no longer denying african americans the right to vote. there was a built in check in the statute to take care of that kind of situation. it was a bear out provision. it said that if you had a clean record for x number of years you can apply to be released from preclearance. but the majority of mines thought the formula was obsolete, it needed to be done over. one of the points that i made in my dissent was, what member of our congress is going to stand up and say my state or my city or my county is still keeping african americans from voting so please keep us out of the preclearance system. that was not going to happen. if you think about, who knows a little more about the political world, the congress or the court, the congress said we want the voting rights act, it is working well, and the court said, you cannot have it. if you talk about judicial activism, here is a law that congress overwhelmingly passed and the court nullified it. this second year student was angry about the decision, he thought here is a piece of legislation that is really working and the supreme court stopped it. and then she thought s'more, and decided that anger is a useless emotion, it just gets riled up but it does not move you forward. so she wanted to do something positive, and she took, not my fall dissenting opinion but the announcement of my dissent that i read from the bench in the shelby county case and put it on some kind of blog or tumbler. (laughs) >> not quite the same thing, but -- (laughs) >> it took off into the wild blue yonder from there because i think young people wanted something positive, something inspirational, and then they went on from whatever it was, what is the difference, by the way? >> they are both communication tools. >> anyway, the second year student paired with a journalist and they wrote a book called the notorious rbg, which is now an exhibition that is traveling around the country. it was most recently in philadelphia, and currently it is in chicago, it will be some months from now in new york. so now there is a notorious rbg adult readers and a notorious rbg for young readers, and many children's books, coloring books. >> while it is probably true that many americans would have trouble naming a supreme court justice except they would have no trouble now because of all of this plug bliss it-y, and you have clearly become an icon i think for children, women, public, how has it changed your life? >> i think it has changed my judicial assistance life, because i get flooded with invitations. i could be getting an award every day of the week. (laughs) (laughs) >> well we don't have an award for you tonight, but we are just happy to have you here. >> i should say something that you didn't mention, before on the basis of sex which the script writer for that by the way was my nephew, and when we asked him, why did you choose morris case because it was not reviewed by the supreme court and his answer was because he wanted the film to be as much the story of a marriage as the story of the development of a legal strategy. i think he succeeded in that. but before on the basis of sex there was a documentary called rbg done by betsy west and judy cone, years before, those two women had done a special for pbs about the women's movement, the revived women's movement starting in the late sixties and continuing through the seventies. they interviewed all kinds of people for it, people on both sides. so there was an interview with foolish lawfully, who single handedly brought down the equal rights amendment, and there was cory's dynamic, many people and i was one of the people interviewed for makers, so the people who created that documentary decided they would like to do one. it focused on the american civil issue litigation efforts in the 19 seventies to invigorates the equal protection clause so that it worked for women and men. >> i just want to let you know that i took my lock last to see both of these movies actually, but you mentioned on shelby county the descent and one of the outflows of the notorious rbg has been a whole series of paraphernalia and related items that one can buy including a little pin called the sand collar pin. would you share with us you're thinking about the descent collar. >> the button are the descent collar itself. >> the descent collar itself. >> i do have a dissent color, years ago, glamour magazine gave me a lifetime achievement award and it was a bag filled with goodies and one of them was that dissent collar, i thought it looked just right for dissent. (laughs) nowadays i get a call or at least once a week, i get two things, i get collars and i get scrunchies. >> i hope you are not replacing the dissent collar in any way, it will stay in a position in your chambers and around your neck. >> my majority opinion collar has changed, there is some variety in that. >> and some variety in the scrunchies as well. >> yes. >> well going back to the suffrage assists, one of the things they did to raise money was to sell cookbooks, and there was some sort of a double entendre to the whole thing because they wanted to show that women could have a role in the kitchen and outside the kitchen and i know that in your family that marty had a particularly prominent role in the kitchen as the chef, and maybe your role was a little less molester yes but you did raise two amazing children and you do hear this buzzword now, work life balance, which i do not think had come into the lexicon when you are raising your children. will you share how you navigated your home and professional life as you moved through your various stages? >> i will start at the end, marty was a superb cook, and when we were married we spent the first two years and he was in military service, in oklahoma and there, marty had been originally chemistry major until eight golf practice interfered with chemistry labs so than he switched government which was my subject. my cousin son him as a joke an english translation of the great chef scott va cookbook. marty started with a basic stock and he worked his way, i still have the book, food stains all over it, but we had an arrangement where i was that every day cook marty was the weekend and company cook. i was never allowed to cook for company. i had seven things that i made, they all came out of a book called the 60 minute chef, 60 minutes from the time you enter your home until the dinner is on the table, that was it. it was a rotation. it got to seven and went back to one. (laughs) and jane, my daughter when she is in her high school years, she becomes increasingly aware of the enormous difference between daddies cooking and mommies cooking, and she decides that not only should die to be the weekend and company cook but he should be that every day cook. this was to me like tom soy are getting the fence painted. i haven't cooked a meal, we have been living in washington d.c. since 1980, i have not cooked a meal in all of those years. when marty died, my daughter jane felt responsibility for having fazed me out of the kitchen so she comes once a month, cooks up a storm, makes individual dinners for me which we put in the freezer, and then we do something nice in the evening, so, when marty died, the wife of justice alito decided that the tribute that would be just right for him was a cookbook, and it is called supreme chef, that is marty, each section is introduced by the spouse of another justice in seniority order, so it starts with maureen scalia, and it is one of the best selling books in the supreme court gift shop. >> i think that is quite an achievement to say you haven't cooked a meal for decades. >> something else, the supreme spouses meet quarterly for lunch, and they rotate catering responsibilities. marty was always the number one pick to be cook. >> for good reason. the aba commission on the 19th amendment is ticking after the suffer just and we are going to publish a digital cookbook to celebrate the 19th amendment, so i wonder what recipe would marty contribute to that and which one of your rotating seven would you pick out? >> you wouldn't want (laughs) any of those eight. i thought my one fish, to finish, redfish, blue fish was pretty good but my children don't agree. marty's lime soufflé was sublime and then there was the ultimate and kosher dish, it is pork braised in milk. i think his crowning achievement was a french baguette. he worked for a year to get that recipe right, and he had the highest praise he could get was the french ambassador to the united states said that marty's baguettes were the best outside of france. >> well that is a tribute, i think the suffragettes would be quite proud to say they have achieved some equality because of marti's contributions to the culinary world along with the tax world and professor world as well. i want to talk with you now about your life as an advocate. when i was a student here at george town i took one of the very first sex discrimination classes, and i was somewhat flummoxed about where i would look for source information. so i was advised, you should write to professor ginsburg which i did and you kindly supplied me with enough to get through a paper for the end of the semester, but of course things have changed quite a bit in the terms of the number of women in law school. we have just over 50% and this year when they have just done a big celebration of the editors-in-chief at the top marginal's including georgetown where grace paris is the editor in chief, but they are all women. so things have changed somewhat since you were one of nine women. >> yes in a class of over 500 students. harvard law school didn't begin to admit women until 51, so i came in 56. my class had nine. and marty was one year ahead of me, his class had five. there was one woman, when i was a first year student, there was one woman out of the law review and she was in the second year class and i was the lone woman in my class, i never had in all of my university years, not in undergraduate, certainly not in law school, a woman teacher. i think that cornell there was a woman physical education teacher but that was it. never in the academic fields. so for me, the change is just huge. i started law school in 56, women were then, 3% of the lawyers across the country. on the bench, they just were not there. the first woman appointed to a federal court of appeals floor was appointed by roosevelt in 1934, she was in the sixth circuit, she retired in 1959, the year that i graduated, then there were none again until 1968 when johnson appointed surely help center to the ninth circuit margaret's court. the first person to be appointed to a federal district court ship was bringing a shelton matthews, she was a recess appointee and got permanent seat in 49. this woman talking about the 19th amendment, matthews was general counsel to the national moments equality. she was a softspoken, woman from mississippi but she was made of steel. and the district court, she hired only women as law clerks, because our colleagues hired only men. she was responsible, we are talking about the forties, so the admission of the first african american to the bar of the d.c. district court. when i got to d.c., she was well into her nineties, so she was no longer sitting but she would come to chambers occasionally, and it was such a treat for me to hear her stories. she spoke about picketing the white house, she was going to law school at night, she had a day job, but she took part in picketing the white house which was wilson was president, and it took him a while, a long while before he became a supporter of the 19th amendment. so she would go to the white house, hold up her sign that said votes for women, and if the police tried to hassle her, she would never speak back because she didn't want to risk having an arrest record which might hold up her admission to the bar. and the national women's party was situated in the spot where the u.s. supreme court stands, and when the government took the property to build court, brenda shelton mathews who happened to be a specialist in eminent domain was asking for a very high price, and the government said this is just an old building it is not worth anything, but matthews had, what we call the society of elder inhabitants of the districts of columbia intensify about this building having been a jail for notorious confederate spies in the civil war. and before that, it was a temporary capital when the capitol burned down in the war of 1812, but the government would have none of it. finally she introduced a photograph of a notorious confederate spy who happened to be a woman taken inside that building, so the government through in the towel and she won for the national woman's party the largest condemnation award the united states had ever paid up till that time. she was very active in the american bar association, those were the days when it was opposition to the equal rights amendment, the opposition was the fear that it would take away the protective labor legislation, and she wrote an article in the aba journal pointing out that this so-called protective legislation ended up protecting men's jobs against women's competition. if you serve tables in a restaurant, tips are higher at night than during the day. no more than 40 hours per week, if you want to earn double time or time and a half, you won't get overtime but you are being protected. during world war ii there were many other jobs filled by women because men were off fighting the war. one of them was bartending. so the state of michigan passes a law that says a woman can't attend barr unless the establishment is owned by her father or her husband, the plaintiffs in that case, mother and daughter, mother owned the tavern, daughter was the bartender, this law put them out of business immediately. that case gets to the supreme court in 1948 and the court says bars can be pretty raunchy places and we need to protect the women, we do this by prohibiting them from being bartenders. so matthews saw from the beginning that these so-called protections were not real favors for women, she was a very effective advocate. >> you argued in the supreme court at a time when there were few women advocates, and of course you argued a number of these upside down cases, model discrimination, we know there are inroads being made, little by little in terms of women arguing in the supreme court, but, you probably know a lot more now than you did when you argued your first case in the supreme court. so, what do you know now having been a justice and been on the other side of the bench that you would like to convey to advocates for the court or court of appeals or otherwise? >> i think i knew then what has been reaffirmed over and over again. the supreme court is what lawyers call hot bench. that is, every justice has done his or her homework, is armed to the teeth for oral argument, uses their power effectively. that is not true of all appellate benches, and i remember one argument in a federal circuit court i will not say which number. >> i don't think it was hours. >> my students came with me to this argument and i thought our reply brief was devastating. i start arguing it and i sense early on that the panel far from reading my reply brief had not even read the opening brief. so i had to go back to being a kindergarten teacher and lead them in the direction i wanted them to go, but that can be very disillusioning to do an advocate if you are dealing with a cold bench. >> the opposite of that of course is when advocates are making an argument and then they are interrupted, and some of the more recent studies have suggested that both female justices and female advocates are interrupted more than their male counterparts, and they have even suggested that the male justices interrupt the female justices three times as much. curiously and maybe not so curiously this pattern has been reversed where there is gender related cases. why is this happening in 2020? >> i'll tell you a funny story about interruptions. some years ago, there was a headline in usa today, the headline was, rude ruth interrupts sander. in oral argument, she asked her question, i thought she was done, she wasn't, she said just a minute i have follow-up questions. that precipitated the rude ruth story. at lunch i said, i'm so sorry i stepped on your question and she said ruth, it is okay, the guys do it to each other all the time. so i commented to the reporter who wrote the story, about my interrupting and i said that he should watch the court for the next two sittings and see if he observes the men stepping on each other's questions. and after that time elapsed he said yes they do, but i didn't notice it when it comes from men, he did notice it when it was to women. and then there was a woman, i don't know whether she is a professor of linguistics, but she tried to explain how this happened. and she said, justice o'connor is a girl of the golden west, grew up on the lazy b ranch, ginsburg is a fast talking to from new york, it is just different styles. some people understood that sandra got out two words to my everyone, and again it is a stereotype. but i think it was to the good that that article was written about interruption because i think it was largely unconscious, and i expect that you will see a change in that regard, you mentioned that now we are going to have more law students, one of the things i found out about the increase is that a big jump is from minority women in the enrollment. that is a good thing. when it comes to lawyers, i think, you tell me if it's, true of the ninth circuit, we get many more applicants from men then from women for supreme court appointments. and the advocates who appear before us, i think the number is less than 20% are women. still a huge improvement from the way it once was, the supreme court, the first ever woman to clark for the supreme court was back in the forties, and it was luciano lawman, the west coast dean shows his clerks, they wrote someone that they had no inequality, that they could recommend to him and he said will you say that, have you considered women? if you have one who is brilliant, i will consider her. i understand that that was a very successful clerkship, but there wasn't another one, from the middle forties until 68, when justice black hard, a woman, with margaret cochran, and she had a special entrée to justice black's chambers because her father was a well-known democratic party operator, they called him tommy claw. and in one weekend, the justice gave his clerk a bunch of work and said digest these from me over the weekend she comes on monday and she hasn't done and she explains that her father was a widower, he had to go to a number of party functions and he needed a woman to come with him so she was the woman. and then, it wasn't until the seventies, that women's showed up his clerks in numbers there's a letter from justice, there is a time when they had two clerks not for as they do know, west coast is recommended to limit, he wrote back to them, that's women's lid with the, -- you know writing about clerk douglas. you see a low man, one thing i want to go back to his justice o'connor. >> obviously being the first two female justices, you've had some challenges, the others didn't, one time justice o'connor asked you, where would we be if there was no discrimination? and you answered, i think we'd be retired partners, from a big law firm. but since there was discrimination, we ended up here. which is not a bad place to add up from most people's perspective. >> we had to make your own path, said your who is very high in her class, she volunteered to work for free, four accounts, and that at the end of the month, if you think i'm worth it, you can put me on the payroll i got a clerkship with a district judge because, got there who was then teaching at columbia, and then got transferred to stanford, called every judge in the eastern southern district, every judge in the second circuit, finally came to one dutch edmund who was a columbia, college graduate, and at columbia law school graduate, and always took his clerks from columbia, judges respond to us, on the record is good, but she has a four year old daughter, i can't risk it, sometimes i need my clerk even on the sideline. jerry said give her a chance. and if she doesn't work out there is a young man in her class who is going to downtown firm he will jump in and take over >> that is the carrot, it was also stick, the stick was if you don't give her chance, i will never recommend another columbia student to you. for the women in my class getting that first job's a tremendous hurdle if you got the job he did it leases was the man, so the second job was not the same impediment. i certainly would invite you to take a look at your clerkship opportunities because we have quite a nice complement of male and female clerks, i know you've hired one of my clerks, were seeing the male accolades are exceeding the female and what can, it doesn't necessarily mean that those percentages are holding true, let me go back to another sex discrimination point that relates to some your cases we have this great bobblehead here which is represented by a number of things actually. but one of these items it shows you pulling the plug essentially on this say four there are pennies inside and that's a reference to your dissenting opinion in leadbetter versus goodyear shortly after that congress passed the leadbetter fair pay act. what lessons can we learn for students, professors, judges, from the lily leadbetter case. here you are. >> one lesson, is that on questions on statutory and tear protection, as distinguished, constitutional interpretation, statutory interpretation is not have the last worth. so i thought my colleagues had aired not just aired but agreed to some of the tagline all my dissent on that case was, the ball is now in congress is court, to correct the error, in which my colleagues have fallen there was a ground swell to pass that lili leadbetter fair pay act. again, in the acts large majorities, republicans, democrats, italy leadbetter fair pay act was the first piece of legislation that president obama side, when he took office. and really story was a story familiar to every woman of my generation and of hers she was an area manager at a good year tire, it was a job dominated by men. she came on board in the seventies she didn't want to be viewed as a troublemaker. she didn't want to rock the boat she, decider, job one day summit put a paper in her mailbox. it was a series of numbers, she recognized what those numbers meant. they were the pay of every other, area manager, and she saw the young man she had trained to do the job, was getting more than she was, morning. she said i have had it, i will suit. she began a title seven lawsuit, succeeded in district court, it was a jury case, she got a good verdict, by the time i got to the supreme court, have to force a lily you sued too late. title seven said you must file a complaint with the easy, within 180 days, of the discriminatory incident. and here you are coming along a dozen years later, you are way way out of time in my dissent i explained, she doesn't want to walk the boat, besides if she had said early on, that paying me less because i'm woman, they would say almost certainly it is nothing to do with really being a woman, she just doesn't doing the job as good as a man. but what she's been working there year after year, and getting good performance ratings, that offense that she doesn't do the job as well a man is no longer available to them. she has a winnable case, but the court says she soon too late. my dissent, was the sole simplicity, i said the discrimination that she encountered is repeated, every month, because this reflected in every paycheck she receives. so as long as she sues within 180 days of a paycheck, hirsute is timely and that is exactly what they amended title seven to say what i thought congressman all along. >>. common sense. that relates to another case of statutory interpretation, subtitle seven. the conclusion that discrimination on the basis of pregnancy, it's not discrimination on the basis of sex, is the world is divided into two kinds of people, there's non pregnant people, and that includes many many women, and then there are just these pregnant people, and there's no mail to compare them to, so they can't be sexist that was in the 1978, congress passed the pregnancy discrimination act, another act that was the sole simplicity that said should have been eminent to all my colleagues all the members of the then supreme court discrimination on the basis of pregnancy is discrimination on the basis of sex and sometimes they mean what they say in congress. if it's a question of constitutional interpretation, we do have the last word. so it is on a constitutional question, is writing for a future court, and we have seen, even if we have a long history of the sense, we have seen so many descending opinions eventually become the laws, but even if you go back to the worst-case of whatever is decided they were to dissenters. or the civil rights cases in the 18 eighties -- and ferguson in the 1890s, justice john marshall harlem the first justice descended in those cases moving to the world war one periods all those dissents which today are not questioned, the proper interpretation of the first amendment, you writing a descent for a future, hopeful, better understand, how the spot. >> you're hoping overtime, the court will see it the way you do, that's where we're arriving, most immediately i'm trying to get my dissent circulated. that hope is often disappointed, but, there is always a chance, and every member being assigned a descent by senior colleague, is in a criminal case, the vote was seven to two, at the conference in the fullness of time you pinion once released he was 63, the two had swelled to six, and the seven had trunk. >> but you are not always writing the dissent of, course is our little bobblehead here from the green bay, as another great case, this one, where you wrote for a majority, the virginia military institute, which was the united states versus virginia, of course can see this, oh you could look online and you can see that justice ginsburg is towering over the campus at the virginia military institute, and obviously the majority there are struck down, the male only, admissions policy, you're good friend, and colleague, rather spirited, some say spicy, the legal writers like to say scathing. the sense, and he has asserted that the court was destroying, i know you've been back there to visit, what do you think of justice kelly as prediction? >> he was entirely wrong. he thought there would be an end of the mri, as we know and love. the faculty was cheering, something very revealing about the price, the title is the united states against virginia, its united states governor made, saying estate of virginia, cannot leave an educational opportunity, available, to one sex only, the faculty saw that this was an opportunity, to upgrade their applicant pool. many people said to me, what woman would want to go to subject yourself to that rigorous and brutal program? that sparked in existence, i said well i wouldn't. if you are a man, you probably wouldn't either. but there are some women, who do want that experience, and are well equipped, to pursue it, soon i went back, now it's has to go back, the 20th anniversary, the 20, was the 21st, and everyone was so proud, still not very spartan quarters, these women wanted to be engineers it was a great success >> well that's why you're standing on a campus, but now women, are standing on the campus, as students as well >> i was visiting west point when they announced they were lifting the combat description to women >> and the women, or just sharing that decision. >> one of the things that, you have, i guess not to your name, but your association, is a workout book, which may not be, totally common among the justices, not that they don't work, out but they don't have a book about working out, so what do you actually do to keep in shape, do you follow that little rbg workout book? >> i follow the author, by johnson. he has been my personal trainer since 1999. it was the year i had wrecked all cancer. and my dear husband said, you look like a survivor, of the concentration camp, you must do something, to build yourself up so i asked around do you know castle, or she was u.s. district court judge? and she said i have just the right person for you, he works at our clips office, is my personal trainer, it will be good for you. , now there is a johnson work up. look there's a calendar. >> now it's a good workout book, not that i'm qualified to recommend a workout book, but given all the travel, i do look at that book and think, well he is actually encapsulated pretty carefully, but you need to do to keep in shape. let me ask you, i know we have a couple of questions here from students before a close. one of the things you have mentioned, cancer giving you a zest for life, that you might not have even had before would you share is how being a survivor as shape to you as a person and as a justice? >> it does give you a new lease for, life every day is precious, i've had for cancer bouts will join in the court. i was able to get through without missing any case. this latest lung cancer, there was one month when i couldn't physically be after the court. but i listened to the arguments on tape, i had an assignment from that sitting on. my colleagues rallied around me, and helped me get through some very trying days. justice o'connor who had a mastectomy, was on the bench nine days after her surgery. and she gave me great advice, she said, you're going to have chemotherapy, scheduled on friday, that way you can get over it, saturday and sunday, and be back at work on monday. >> i think you've been a remarkable hero to many who have had cancer, and survived it, but also, just your indomitable spirit, it's something that keeps other judges going, i want you to know, and also lost her dense, many of whom are here, i have two questions from law students i would like to ask you. and then, hopefully we can close, although for sure we don't want to close. this question related to equal protection clause, the question, is are you satisfied that gender should only receive intermediate scrutiny, under the equal protection of laws, or should gender classifications, instead be subject to such scrutiny? >> i've told lawsuits on more than one occasion, watch what we do, law students like to have secure hand hold, so there is rational basis, intermediate, and so on, and then sandra wrote an opinion that said, strict yes, a number of statutes are being held invalid under the rational basis, so the bottom is moving up, the top is moving down, and i think justice marshall had it right when he said there are not these three tiers, there is a sliding scale, it depends upon the strength of the government's interest. and the importance of the write that the person is asserting. the words are, shall any state tonight any person the equal protection of the laws? if it's very well. except that the 14th amendment was meant to deal with the burning issue of the day, slavery, and in the second section of the 14th amendment for the first time, the word mail appears in the text of the constitution. before the 15th amendment there was an effort to stop the southern states, from barring african americans from voting, and the mechanism was, if you keep people from the polls then you will lose, to the extent that you are not allowing men to vote, your representation in congress will shrink, in proportion to the people that you have kept from voting. it didn't work, so they then passed the 15th amendment. by the way since we've started talking about the 19th amendment, the 19th amendment follows the wording of the 15th amendment, the 15th amendment was honored in the breach, so many years one of the concerns, one of the concerns in the part of some of the southern politicians was, does that mean that we will have african american women voting? that was a serious concern. as it turned out, the barriers to minority voters continued and it affected women, as well as men, so initially, the 19th amendment gave white women the right to vote, and it took a measure like the voting rights act, to break that. >> that actually relates, the entire question came from one of the members from george town, one of my incoming clerks. and of course, we are always told not to read the tea leaves, always decide case by case. >> we always leading tea leaves, whatever leaves you choose to scatter, that we can read and try to interpret, for cases to come, so here's a related case, this will comes from max kramer who is also one of my incoming law clerks. he talks about the fact that, although women formally won the vote, 100 years ago, that many young women of color or still disenfranchised, particularly through restrictive voting laws. what is your comment on that, in the midst of all of this we've talked, one voting rights act case, are we going in the voting rights? >> i'm pleased that one of my former law clerks is spending a good deal of her time getting 18 year olds to register to vote. especially minority women going with them to the registration place, taking them there, but i think that young people are going to make a difference, and when our government does now is going to be affecting their lives, so they should care deeply, about exercising, the right to vote. and there should be great efforts, to see that, when they try to vote, they are registered, properly as they should be >> obviously registration was an important thing, nondiscrimination is also important, you that your life really, the field of equal protection, for us it's really a privilege to have you here, tonight, at george town to talk about many of these things, i have about 2000 more questions, but i'm going to shorten unless you have the last word. >> first on the subject of the 19th amendment, there is a very good exhibition, at the archives, and when do we visit? it was it last week? and the story is told, it is accessible as could be, there are some things that are very funny like the letter from the woman, in iowa, she wanted to lead the troops, be a soldier, when we do, this that, and the other thing, but they shouldn't vote. >> there is such inconsistent arguments, one was, you're just going to do with their husbands tell them to do, so it won't make a difference, the other was, this is going to cause dissension in the home, that will lead to look collective children, there a couple of cartoons, of men taking care of screaming babies, that their wives can go and vote, but it took,, with 1848, it's now seven years later, we have to be patient what was it this isn't the anthony said, failure is impossible, she never got to see the 19th amendment, but she knew it would happen. recommend that exhibition and in my long life, i've seen such positive change, yes there are things that make us all worry, like dysfunctional congress, if the parties so sharply divided. but think of how it

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