Notorious RBG

by Irin Carmon

  For years, the Scalias and the Ginsburgs rang in the New Year together at the Ginsburg apartment, including some combination of Scalia’s nine children and dozens of grandchildren. Scalia would bring the spoils of a recent hunting trip. “Scalia kills it and Marty cooks it,” said guest and former Bush solicitor general Theodore Olson in 2007. “I never heard them talk about anything political or ideological, because there would be no point,” RBG’s grandson, Paul Spera, says. (Of the famous New Year’s parties, Paul says, “It was really boring when you’re a kid, all these old people dressed up for no reason.”)

  Inside RBG’s chambers is a photograph of tiny RBG and rotund Scalia atop an elephant on a 1994 trip to India. “It was quite a magnificent, very elegant elephant,” according to RBG. Her “feminist friends,” she said, have asked why Scalia, a man, got to sit in the front. “It had to do with the distribution of weight,” RBG deadpanned.

  RBG and Antonin Scalia riding an elephant in India in 1994 Collection of the Supreme Court of the United States

  RBG does sometimes let a little playful impatience slip. “I love him,” she once said of Scalia, “but sometimes I’d like to strangle him.” Her visible warmth toward Scalia doesn’t extend to every single conservative justice. There are no reported opera outings with Justice Samuel Alito, though Alito has sometimes joined in the annual Shakespeare Theater mock trial RBG leads. Alito made it on the court despite a controversy over his membership in a conservative Princeton alumni group that objected to the inclusion of women and people of color on campus. There was no proof Alito had been an active member, and he disavowed the group in his hearings, but needless to say, he was no O’Connor.

  Only one thing trumps RBG’s commitment to keeping things civil at the court, and that is gently but firmly calling out sexism in the workplace. Even her own very high-profile workplace. When I asked her if she still experiences sexism, RBG replied readily. “Yes. Less than I once did. Once it happened all the time that I would say something and there was no response. And then a man would say the same thing and people would say, ‘Good idea.’” She laughed. “That happens much less today.”

  Her response, she says, is to “try to teach through my opinions, through my speeches, how wrong it is to judge people on the basis of what they look like, color of their skin, whether they’re men or women.”

  In 2009, President Barack Obama’s nomination of Federal Appeals Court Judge Sonia Sotomayor relieved RBG of the unwelcome role of being the only woman on the court. The first Latina to be nominated, Sotomayor was promptly raked over the coals for a speech she had given in 2001. “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society,” Sotomayor said in this speech, adding, “Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. . . . I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Republicans pounced. Conservative commentators began saying the woman who had been raised in a housing project and overcome so much adversity was the real racist.

  RBG chose to enter the fray in unusually blunt terms, defending her future colleague before Sotomayor’s nomination hearings had even begun. “I thought it was ridiculous for them to make a big deal out of that,” she told The New York Times Sunday Magazine. RBG added, “I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.” As for Sotomayor’s calling herself a product of affirmative action, RBG replied crisply, “So am I.” It was an unmistakable gesture of solidarity toward another woman who would be a first.

  Once Sotomayor was on the court, she was determined to stay true to herself. According to Joan Biskupic’s book on Sotomayor, at the court’s normally staid end-of-term party Sotomayor surprised everyone by putting on salsa music and cajoling the justices to dance with her. Marty Ginsburg had died only days earlier, and RBG sat quietly to the side. Sotomayor bent to whisper to RBG that Marty would have wanted her to dance. “Ginsburg relented and followed Sotomayor in a few steps,” Biskupic wrote. “Ginsburg put her hands up to Sotomayor’s face. Holding her two cheeks in her palms, Ginsburg said, ‘Thank you.’”

  The arrival of Elena Kagan as the fourth female justice marked the first time three women sat on the bench at once. RBG was elated. In 1973, in a move RBG hadn’t even thought to attempt, the young Kagan had demanded her rabbi give her a female version of a bar mitzvah, then unheard-of at her Orthodox synagogue. As the first female dean of Harvard Law School, Kagan had recommended many of RBG’s clerks. She was also the first woman to be confirmed as solicitor general. Still, Kagan acknowledged, her path had been much, much easier than RBG’s. “Female law firm partners and law school professors weren’t exactly the norm, but their numbers were growing, and they weren’t thought of as tokens or curiosities,” Kagan said of her earlier career. “Almost all federal judges and justices were happy to hire the brightest women as their clerks.” (Kagan clerked for Thurgood Marshall.) “Although I won’t say I never felt any bias, it was pretty easy for me to pick the path of my choosing,” Kagan said, adding that she had RBG to thank: “More than any other person, she can take credit for making the law of this country work for women.”

  “I’m gon’ call my crew” Steve Petteway, Collection of the Supreme Court of the United States

  No one would be confusing the three women for one another. Her new colleagues, RBG said happily, are no “shrinking violets.” For some reason, people repeatedly have asked RBG when she thought there would be enough women on the court. The question is asinine, her answer effective: “When there are nine.”

  RBG isn’t a shrinking violet either. At oral argument, she has become known for often asking the first question. It is usually incisive, even if people have to strain to hear her. “Her tiny size and quiet voice—combined with the bad acoustics of the courtroom—can mislead visitors to argument into underestimating the justice,” wrote Tom Goldstein, who frequently argues before the court. “It is not a mistake that the advocates make.”

  RED HOT PEN

  * * *

  It is writing an opinion, and the process of negotiating a position that at least five justices will agree to, that can often change the outcome of cases. “Sometimes in the process of stating your reasons, you begin to say, am I right? Did I overlook this question or that question?” RBG explained. “And not often, but sometimes, a justice will say, this opinion will not write. I was wrong at the conference; I’m going to take the other position.”

  After she circulates an opinion she has written, RBG said, she will sometimes get notes saying, “Dear Ruth, I might join your opinion if you change this, that, or the other thing.” She usually agrees to the concessions, even if the result won’t read exactly how it would if she were queen. “I try, even after I have the fifth vote, to accommodate a colleague,” she said.

  In her chambers in 2002 Getty Images/David Hume Kennerly

  RBG, as the senior associate justice among the liberals, will often assign who writes the dissents. “I try to be fair, so no one ends up with all the dull cases while another has all the exciting cases,” she told The New Republic. “I do take, I suppose, more than a fair share of the dissenting opinions in the most-watched cases.”

  Even a dissent doesn’t necessarily mark game over. Occasionally, a dissenter’s draft may be so persuasive that the majority flips. RBG pulled that off once, “a heady experience.” A draft dissent might shame the majority into a narrower result. It might strengthen or focus the majority. Justice Scalia dropped his dissent in the VMI case in her lap on a Friday afternoon. RBG joked that he ruined her weekend but
made her opinion better.

  The night before RBG famously fell asleep at the State of the Union in 2015, she told me, “I thought to myself, ‘Don’t stay up all night,’ but then my pen was hot.” RBG’s pen is often hot late at night.

  Her clerks generally set their own hours and get their instructions from the justice through overnight voice mails. One night, former clerk Richard Primus remembers, he was working late and picked up the phone. “Richard, what are you doing there?” RBG said in surprise. The Supreme Court has an iron door that, at the time Samuel Bagenstos clerked, was locked at 2 A.M. “After that, the Supreme Court police has to be called to let you in and out,” he recalled. During that 1997 term, he had to make that call repeatedly. “Kennedy is a morning person,” remembers former clerk Daniel Rubens. “The joke was that he would see her on his way in and she was on her way out.” No one has ever doubted RBG’s work ethic. She used to be known for bringing a penlight to the movies to read her mail during previews, and to read briefs in the golf cart between strokes. As a child, her son would wake up in the middle of the night to find his mother scribbling away at legal pads spread across the dining room table, popping prunes.

  Robert Cushman, the professor who made her realize what law could do in the world, told her early on that her writing was a little overwrought. RBG took a knife to her adjectives after that. “If my opinion runs more than twenty pages,” she said, “I am disturbed that I couldn’t do it shorter.” The mantra in her chambers is “Get it right and keep it tight.” She disdains legal Latin, and demands extra clarity in an opinion’s opening lines, which she hopes the public will understand. “If you can say it in plain English, you should,” RBG says. Going through “innumerable drafts,” the goal is to write an opinion where no sentence should need to be read twice. “I think that law should be a literary profession,” RBG says, “and the best legal practitioners regard law as an art as well as a craft.”

  RBG’s clerks generally write memos on petitions to the court and are assigned to write the first drafts of opinions. They feverishly memorize the words they know she likes: pathmarking, a word she picked up in Sweden, and because (instead of since) for causality. Then they brace themselves for a brutal edit. Former clerk and onetime Columbia Law School dean David Schizer remembers another clerk showing him a draft opinion that RBG had gone over. She had crossed out and rewritten every single word in one paragraph—except “the,” which she’d circled, in a move the clerk assumed was meant to spare his feelings.

  RBG has been known to copyedit minor punctuation in a draft of a speech that was only going to be read, never published. There was a story that circulated among her clerks, possibly apocryphal, that RBG had sent a letter in reply to an applicant for a clerkship who’d made a typo in her application: “Note the typo.” The candidate was not even interviewed. At the end of one term, her clerks presented RBG with the gift of a menu, edited in her fashion—nearly every word changed.

  Schizer remembers a high compliment he got from RBG while clerking. He had just handed in a draft. “Marty wanted me to go to a movie and I said no,” RBG told Schizer, evidently having set aside her whole evening to redo his draft. “But it’s so good I’m going to the movies.”

  Grammatical correctness is the beginning, not the end of the story. RBG instructs her clerks always to remember that regular people are affected by the court’s decisions and, if the draft is a majority opinion, always to treat the losing side respectfully. It sometimes reads like she is trying to defy anyone scanning for a stirring turn of phrase. “My writing style tends to be, some people might think, more bland,” she said in 2012. “I’m not as immediately attention-grabbing, but I hope what I write has staying power.” She often quotes Learned Hand—the same judge who refused to hire her because he didn’t want to censor himself before a woman—that you shouldn’t knock your opponent’s chess pieces off the table.

  “She had an acute sense of how the law intersected with real people’s lives, and that both the actual rules but also the vocabulary you use to describe these rules also matter,” former clerk Alisa Klein says. “The important takeaway for them is not just ‘I lost.’ It should be ‘I was treated fairly and understand the judiciary.’” She also has instructed her clerks not to use the courts below or lower courts to describe the district and appeals courts, as an extra measure of respect.

  Even with all this rigor, RBG’s chambers are famous for getting opinions done fast. “We all laugh about how fast she is. And her work is just awesomely good,” Kagan said. “In my book, she’s the consummate judicial craftsman, and I learn something from her every time we sit.”

  A buzzer summons clerks to RBG’s inner sanctum, where the granite-covered desk is often littered in chewed-up pencils. Most clerks came prepared to wait through what several of them called “her tolerance for conversation silence” but saw this as RBG choosing her spoken words as carefully as the words she writes. Richard Primus says he had the “Five Mississippi Rule,” to know whether she was done speaking.

  “There was always a point where you thought you were at the end of the conversation where you weren’t sure if she was fully done,” recalls former clerk Paul Berman. “You would slowly start backing up towards the door, and if she said something you’d come back, and if she didn’t say anything you’d continue out the door.”

  HOW THE WORLD SHOULD BE

  * * *

  David Post had an asterisk on his résumé, for the two years in the eighties he had spent being a full-time dad. His wife was then traveling a lot for her job at the World Bank, so Post had stayed home with the kids during the day and gone to law school at Georgetown at night. He couldn’t quite figure out how to describe that decision on his clerkship applications, and doesn’t remember what terminology he settled on. Whatever it was, it caught RBG’s eye.

  “I wasn’t the first guy in the world to do it but it was still pretty unusual,” says Post of being the primary caregiver. He didn’t realize then that RBG’s favorite case was representing Stephen Wiesenfeld, who had been ready to take the lead in parenting even before his wife died. By the time Post was hired as a clerk for Judge Ginsburg at the D.C. Circuit, to begin in the fall of 1986, Post’s daughter, Sarah, was about four, and his son, Sam, was a newborn. He mentioned that he would sometimes have to leave for day-care pickup, and RBG understood he would need to be home for dinner. In fact, she was thrilled by it.

  “I thought, ‘This is my dream of the way the world should be.’ When fathers take equal responsibility for the care of their children, that’s when women will truly be liberated,” RBG explained in 1993 to the in-house paper at the Supreme Court. She had asked Post to come back to clerk for her in her first year as a justice. “I was so pleased to see that there are indeed men who are doing a parent’s work, men who do not regard that as strange. People like David, I hope, will be role models for other men who may be fearful they won’t succeed in their profession if they spend time caring for their children, or are concerned they will be thought of as less than a man if family is of prime importance.”

  Post later joked it was the best career move he had ever made. “Of course, a lot of women have to do it and no one made special efforts for them,” he says.

  Not long ago, after Post wrote a blog post about his experience, he got a note from RBG reminding him of something he had forgotten from almost thirty years earlier. The justice, an opera fan, had been pleased to see that Post’s writing sample was about Wagner’s Ring Cycle and contract law. Not much gets by RBG. “Ruth Ginsburg’s a real pro,” says Post. He’ll never forget how, when his father was dying, the justice sent his parents a note saying they should be so proud of him.

  In the eighteen months between their job interviews and when they began clerking for Judge Ginsburg on the D.C. Circuit, Susan and David Williams got married. “Justice Ginsburg was so delighted by this answer to the work/home conflict that she did some research to discover that we were, in her words, ‘a Federal first’�
�the first co-clerks married before their employment began,” the Williamses wrote.

  One of the first things many clerks hear from RBG is that the most important job requirement is that they treat her two secretaries well. “There was one law clerk applicant who came to interview with me—top rating at Harvard—who treated my secretaries with disdain,” RBG recalled. “As if they were just minions. So that is one very important thing—how you deal with my secretaries. They are not hired help. As I tell my clerks, ‘if push came to shove, I could do your work—but I can’t do without my secretaries.’”

  Clerks were invited to the opera and to her home at the Watergate for dinner and a taste of Marty’s cooking. And she seems to delight in learning more about the family lives of her clerks. When they have children, she sends them “RBG grandclerk” T-shirts with the Supreme Court seal.

  When RBG heard through the grapevine that her clerk Paul Berman was dating a clerk for retired Justice Blackmun, Berman got buzzed by the intercom in chambers. He remembers picking up the phone apprehensively, thinking he had messed something up. “I didn’t know you had a special friend at the court!” RBG cooed. “You must have her up for tea.” Two days later, RBG had set up a small table in her chambers with a placemat and tea set, and spent thirty minutes with the young couple. Later, she performed their wedding ceremony, something she’s done for several clerks.

  “I’ll never forget the end,” says Berman. “Instead of ‘by the power invested in me, by whatever’ she said, ‘by the power vested in me by the United States Constitution.’ My wife always jokes that if we got divorced it would be unconstitutional.”

  RBG even occasionally gets in on clerk shenanigans. In Alito’s first full term on the court, his clerks persuaded him to field his own fantasy baseball team along with the league the other justices’ clerks had put together. “The week that the Ginsburg clerk teams played against Alito’s, we beat him soundly,” reports Scott Hershovitz, a clerk that year. Hershovitz eagerly reported the victory to RBG and suggested she send a memo to Alito crowing about the victory.