Justice Ruth Bader Ginsburg has served on the Supreme Court since 1993. Before becoming the second female Supreme Court Justice in history, Justice Ginsburg was a law professor, a general counsel of the American Civil Liberties Union and a judge on the U.S. Court of Appeals for the District of Columbia Circuit from 1980 to 1993. She sat down with Stanford Politics to discuss the evolving nature of law and laws that have evolved, the importance of judicial independence and Scalia/Ginsburg, her legendary friendship with Justice Antonin Scalia and the opera that it inspired.
Jonathan Faust: What do you feel has been the most consequential decision during your time on the Supreme Court? And beyond your time on the Supreme Court, what opinion, written by someone else during any time in history, do you wish you could have written, and why?
Ruth Bader Ginsburg: One of the most important decisions, I think as important, if not more important than Brown v. Board of Education, was Loving v. Virginia. I hope you’ve seen the film, because it’s excellent. Loving v. Virginia was decided in 1967, 13 years after Brown v. Board, and it was the decision that held anti-miscegenation laws unconstitutional. Despite Brown, several states still banned interracial marriage. So Loving, which was a unanimous decision of the Warren Court, is the one that, more than anything else, was meant to end apartheid in America. I don’t think I would have done better writing it; it was a very short decision.
JF: And during your time on the Supreme Court?
RBG: One decision that would not have been possible without Loving v. Virginia is the Obergefell decision, the same-sex marriage decision. Two things were important precedents for that decision: one, as I mentioned, was Loving v. Virginia; the other was a decision from 1981 or 1982, in a case called Kirchberg v. Feenstra. That was a challenge to Louisiana’s then head and master rule. In both the common law and the civil law, a marriage included a dominant male and a subordinate female. So, in the common law, husband and wife were one, but husband was the one. In the civil law, husband was head and master of the communities. In theory, there was a sharing of assets between husband and wife, but because husband had the sole control, it didn’t mean much to the wife. In 1981 or ’82, the Supreme Court declared the head and master rule unconstitutional. That meant marriage was a union of equals, not a dominant male and a subordinate female. So, I mean, if you had a same-sex union, who would be the dominant partner, who would be the subservient partner? Those two precedents, Loving v. Virginia and Kirchberg v. Feenstra made Obergefell possible.
JF: Justice Scalia famously gave an interview to the California Lawyer Magazine, in which he stated that the Equal Protection clause does not provide heightened protection against sex discrimination because, in 1868, no one thought it would. You’ve obviously taken a very different approach to the Fourteenth Amendment. How would you respond to an originalist about how to interpret the Constitution?
RBG: There was a great constitutional law scholar named Paul Freund who said “[t]he Court should never be influenced by the weather of the day, but inevitably, it will be influenced by the climate of the era.” That is, this is a constitution, not a law meant to last a certain period of time; it was meant to govern through the ages. And of course, to govern through the ages it has to be kept in tune with the people that are governed. It can do that because it has broad themes that were meant to grow with an evolving society. So, if you take the free speech clause, it wasn’t a big thing until the protests [against]World War I. There was no equality provision in the Constitution until 1868, and it certainly wasn’t meant to do anything about the situation of women because, in 1868, when we got the Fourteenth Amendment, in many states, married women were still under certain disabilities. [These] disabilities meant that they could not contract in their own name, they could not sue or be sued in their own name [and]they could not hold property in their own name. The framers of the Fourteenth Amendment did not mean that that was going to change overnight, but I think they wrote these broad principles into the Constitution expecting that it would govern society as it evolved.
I mean who would want to be governed by a dead constitution? The Constitution can’t be dead. If it is dead, it won’t serve the society. If you think of the equality principle, it’s not only women who were left out. In the beginning, who were “we the people?” White property-owning men. Who are “we the people” today? In the beginning, it did not even include Native Americans, and it left out half the population until 1920, when the Nineteenth Amendment, at last, gave women the right to vote. So, I celebrate the Constitution as it has evolved over the centuries and not so much with what was written in 1787.
JF: In an interview with 60 Minutes a few years ago, Justice Thomas said that before President George H.W. Bush announced Justice Thomas’s nomination to the Supreme Court, the President privately told him that he would not criticize any decision that Justice Thomas might make on the bench. If we consider that statement today, is it proper for one branch of government to criticize another branch, and how do you think we can ensure judicial independence and the separation of powers in today’s climate?
RBG: Constructive criticism [is appropriate]. Criticism just for the sake of criticism is of no use. Suppose the Court is trying to interpret a dense statute passed by Congress. By pointing out the obscurities, the ambiguities, the Court is trying to encourage Congress to write clearer laws. The Court is saying “we’re doing our best to interpret this, but it would really help us out, Congress, if you expressed yourself clearly.” So, that kind of criticism is constructive. Judges’ opinions are not to be taken as the gospel. Judicial opinions are often criticized. If it is constructive, not destructive, it is helpful. I think that what President Bush told Justice Thomas was just right. And I think that the President who appointed me, President Bill Clinton, would have said the same thing. Judges are not part of the political branches of government.
One great check on a judge’s authority, at least that of an appellate judge, is that you cannot just vote yes or no, as you can in Congress. We must always give reasons for what we decide. In the process of writing out the reasons, sometimes you find out that your initial judgment was not correct, and then you start over. I think that the discipline of having to say how you came to a certain judgment is very important for judges. I think that the founding fathers were wise in giving the judges two great supports for their independence. One is that we are the only office holders in the government who hold our offices for life. The Constitution [states that we hold office]during good behavior. So, if the President, Congress, or what I call the home crowd, does not like a decision, they cannot demand that the judge step down. That is one great protection.
The other protection that they wrote into the Constitution was that our pay could not be diminished while we held office. Congress cannot retaliate against a decision that it doesn’t like by passing a law to cut a judge’s salary. Those are two great safeguards of judicial independence, and they are in the Constitution. Now, you probably know that in most states of the United States, the state court judges, at least at some levels, are elected, not appointed. I think that a judge who is elected does not have the same security, the same sense of independence. If a judge must stand for election, the judge may worry. Suppose there’s a rival candidate who says that he’s tough on crime, and [that you are]not tough enough. I think that appointment is a much better way to select judges than elections are.
JF: I understand that you were close friends with the late Justice Scalia, and that’s despite your dramatically different worldviews. So, I’m wondering, in this time of incredible political polarization, do you have any recommendations for how we can attempt to bridge the divisions that exist in the United States today?
RBG: We have differences yes. There’s an opera called Scalia/Ginsburg. If you come to Cooperstown, New York this summer, you will see it performed on August 13. Near the end of the opera, there’s a duet that we sing, We Are Different, We Are One. We are different in the way that we interpret legal texts, but one in our collegiality, our genuine fondness for each other; one in our reverence for the Constitution; one in our reverence for the Court we serve and our strong desire to leave it in at least as good shape as we found it.
Another thing we have in common is that we both care about good writing and try to write opinions that even non-lawyers can understand. We spend a lot of time trying to write an opinion that not only gets the judgment right, but that tells it in a way that people of ordinary intelligence can grasp. We shared a great love of music. We were [supernumeraries]together at the Washington National Opera a few times. We traveled together on judicial exchanges, most notably to India, where there was a picture of the two of us on the back of an elegant elephant. We understand (although we disagree with) each other’s approach, but we understand it. I suppose more than anything else, Justice Scalia had an infectious sense of humor. He could make even the most sober judge laugh. So I loved him for that.
This transcript has been lightly edited and condensed for clarity. Special thanks to Professor Pamela Karlan for her input.
Jonathan Faust, a junior studying international relations, is a staff interviewer at Stanford Political Journal.
This article appears in the May 2017 issue of Stanford Politics Magazine.