Ruth Bader Ginsburg: Death Penalty, Gender Equality and That Elephant Ride With Scalia
The typical 78-year-old woman who found herself having to slide down an emergency chute of an aircraft might decide to cancel her trip and head home to a hot bath.
But two-time cancer survivor Justice Ruth Bader Ginsburg is not your typical woman.
After the pilot ordered the evacuation of Ginsburg’s plane before takeoff last week in Washington, D.C., she continued on a different plane to San Francisco. She had been invited to give a wide-ranging talk on the intricacies of constitutional law.
At the University of California Hastings College of Law, Professor Joan C. Williams sat down with Ginsburg Thursday and touched on issues ranging from the constitutionality of the death penalty, gender equality and her ride on an elephant with conservative Justice Antonin Scalia.
Asked about the death penalty, Ginsburg told the audience that earlier in the evening she had been getting calls from the court because of an emergency application filed by death-row inmate Duane Buck.
“There was an execution scheduled for 7 o’clock in Texas,” she said. “It has been stayed.”
Ginsburg said dealing with such applications “is the hardest part of the job I do.”
But she went on to explain why she hadn’t taken a position that the death penalty is unconstitutional in every circumstance. It is a position taken by some former members of the Supreme Court bench.
She did not take such a stance, she explained, in order to be able to have a voice at the table when death penalty disputes come up. Had she taken the position similar to former Justice William J. Brennan or Justice Thurgood Marshall, she said, “I would have no voice in what is going on. I would not be able to make things perhaps a little bit better. ”
Death penalty decisions, she said, are a “dreadful part of the business.”
Asked by the moderator if she had one thing she’d like to accomplish before leaving the bench, she said, “I probably would go back to the day when the Supreme Court said that the death penalty cannot be administered with an even hand,” noting that such an opportunity is unlikely to arrive.
Ginsburg was referring to a 1972 decision that invalidated capital punishment laws and led to a temporary moratorium on the death penalty. The court voted to reinstate the death penalty in 1976.
Ginsburg also spoke extensively about her years before taking the bench as a leading advocate on the issue of gender equality.
“I was very lucky to be there at the right time, and the right place, ” she said, referring to the litigation she lead in the 1970s.
She talked about the strategy in those days at the Women’s Rights Project at the American Civil Liberties Union to educate the public, promote legislative change and work through the courts. “What we wanted was to open all doors for men and for women, that nobody should be blocked from an opportunity or pursuit of a particular course in life because he was male or she was female,” she said.
She told a story of when her son was young and would frequently get the attention of his teachers for his “lively” behavior.
The calls from the school always came to Ginsburg, and were never directed to her husband, Martin, who also had a thriving career as a tax attorney and professor.
“This child has two parents,” she told the school once. “Please alternate the calls.”
Ginsburg spoke glowingly of her husband as a partner and the chef of the family. Martin Ginsburg died in June of 2010 from cancer after 56 years of marriage.
In broad terms, Ginsburg also addressed equal rights, saying, “For all people, we should not be stopped from pursuing whatever talent God has given us, simply because we are of a certain race, certain religion, certain national origin, a certain gender or gender preference. ”
The issue of gender preference might come again before the court in the next few terms as cases regarding same-sex marriage wend their way through the lower courts.
She also discussed a major case from last term involving a suit brought by 1.5 million current and former female Walmart employees who wanted to band together as a class and sue the retailing behemoth for sex discrimination.
Ginsburg dissented from the majority on the threshold question of whether the women met the basic legal standard necessary to bring their suit as a class action. To do so, the women had to show that there was a common question of law or fact that could unite them in their bid to bring one of the largest employment class-action suits in history.
Justice Scalia, writing for the conservative members of the court, said the women had not met that standard. He pointed out that the women came from stores across the country and wanted to sue “about literally millions of employment decisions at once.”
“Without some glue holding the alleged reasons for all those decisions together,” Scalia wrote, “it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored?”
Ginsburg told the crowd, “The dissenters understood the argument that there were people making decisions and they were overwhelmingly white men, and the people that they were choosing for the promotions were of the same race, same gender. “
As in many cases, Ginsburg and Scalia were on opposite sides of the issue. But Scalia, whom she calls her “opera buddy,” happens to be one of her closest friends on the court.
She described how they’d gone to India together a few years ago and brought home a picture of the two of them high atop an elephant.
“It was quite a magnificent and very elegant elephant,” she said, ” and my feminist friends — when they see the photograph of Ginsburg and Scalia on this elephant — they say, ‘Ruth, why are you sitting in the back?”