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FOR IMMEDIATE RELEASE
November 17, 1998
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CONTACT:
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Mary Ann Hill
(781) 283-2376
mhill@wellesley.edu
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THE HONORABLE
RUTH BADER GINSBURG
DELIVERED
WILSON LECTURE
NOVEMBER 13
WELLESLEY - President Diana Chapman Walsh
and The Committee on Lectures and Cultural Events
invited The Honorable Ruth Bader Ginsburg,
Associate Justice, The Supreme Court of the United
States, to deliver the 1998-1999 Wilson Lecture at
Wellesley College on Friday, November 13, 1998.
Click here to read President Walsh's
introductory
remarks.
Below is the complete text from Justice
Ginsburg's speech.
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WILSON LECTURE
"The Supreme Court: A Place for Women"
Delivered by
The Honorable Ruth Bader Ginsburg
Associate Justice
The Supreme Court of the United States
at
Wellesley College
November 13, 1998
Two frontrunners are responsible for my visit this
evening: Diana Chapman Walsh, Wellesley's President, highly
regarded in academic, medical and management circles, and
celebrated, too, in the pages of Runner's World, and Barbara
Preiskel, a dear friend whose extraordinary service on
Fortune 500 boards is surpassed by just one thing - her
devotion to making opportunities to aspire and achieve
genuinely open to all people.
To gain an introduction to Wellesley, I watched in the
company of my Court staff, a videotape called "Hillary's
Class," a film made by a young woman I knew in her growing
up years. It is a remarkable documentary of the way things
were and an aid in thinking about the way things should be.
My talk tonight centers on the same themes &emdash; the
way things were, are, and will be. The setting is the place
I know best nowadays; the title, The Supreme Court: A Place
for Women. Let me begin with a question Justice O'Connor and
I are sometimes asked. Does it make any difference that you
are there? Do women judges decide cases differently by
virtue of being women? As a first response, I have several
times quoted, as has Justice O'Connor, the words of
Minnesota Supreme Court Justice Jeanne Coyne. In her
experience, Justice Coyne said, "a wise old man and a wise
old woman reach the same conclusion."
And so they do. But it is also true, I am convinced, that
women, like persons of different racial groups and ethnic
origins, contribute to the United States judiciary what a
fine jurist, the late Alvin B. Rubin of Louisiana, described
as "a distinctive medley of views influenced by differences
in biology, cultural impact and life experience." Judge
Rubin wrote those words in a mid-1970s decision, Healy v.
Louisiana, a case that spelled the end of the once prevalent
exclusion or exemption of women from jury service. (I had
the good fortune to represent the plaintiffs in that case.
We successfully urged that jury duty is both a right and
obligation of all citizens - women no less than men.) A
system of justice is the richer for diversity of background
and experience. It is the poorer, in terms of appreciating
what is at stake and the impact of its judgments, if its
members - its lawyers, jurors, and judges - are all cast
from the same mold. So yes, in words Justice O'Connor spoke
in 1996, in her surprise appearance one night as Queen
Isabel in the D.C. Shakespeare Theatre's production of Henry
V: "Happily a woman's voice may do some good."
A bolder prediction was made close to a century and a
half ago. The prophet was Sarah Grimke, great feminist and
anti-slavery lecturer from South Carolina. On a December
1853 visit to Washington, D.C., Sarah Grimke wrote this to a
friend:
"Yesterday, visited the Capitol, went into
the Supreme Court, not in session [W]as invited to sit in
the Chief Justice's seat. As I took the place, I
involuntarily exclaimed: Who knows, but this chair may one
day be occupied by a woman. The brethren laughed heartily.
[N]evertheless, it may be a true prophecy."
So Sarah Grimke's letter concluded. And so it may.
I expect to see the day when women serve the cause of
Justice in numbers fully reflective of their talent. That
day, when bias, conscious or unconscious is no longer part
of the scene, has already dawned in some places. Consider
the exuberant comment of our Assistant Attorney General for
the Office of Policy Development, Eldie Acheson:
"[W]hen I sit [at] the table in the Attorney
General's conference room with women running the senior
staff meetings and women reporting on [all manner of legal]
matters, I think how exciting it is just to be there; I
think about how much we owe so many others - some known but
many unknown - who came before and made it that much easier
for all of us."
I will recall in these remarks some of the unknown and
the known who came before, or made it easier for, Sandra and
me. I will speak first of women's affiliation with the
Supreme Court from the start, not as Justices, given the way
things were, but as the Justices companions in life. Next, I
will tell you of the first women to serve as law clerks in
Justices' chambers, then of two women who might have graced
the Supreme Court's bench, had time worked in their favor.
Finally, I will return to today and my hope for the future.
The wives whose stories I will relate are Sarah Story,
wife of Joseph Story, who served on the Court from 1811
until 1845, and Malvina Harlan, wife of the first Justice
John Harlan, who served from 1877 until 1911. Sarah Story
broke a tradition Chief Justice Marshall held dear, the
boarding-house mode of living while the Court sat in the
Federal City. It was Marshall's idea that the Justices
should reside under one roof, continuing discussion of cases
at dinner and in common rooms, and that they should leave
their wives behind. (His aim was to use the camaraderie of
boarding-house life to dispel dissent and achieve a
one-voiced Opinion of the Court, which he usually composed
and delivered himself.)
Sarah and Justice Story did not relish their separations.
So Sarah accompanied Joseph to Washington, D.C., for the
1828 Term. Chief Justice Marshall was ambivalent. He told
Story it would be fine if Sarah dined with the Justices,
whose circle might benefit from a woman's "humanizing
influence." On the other hand, there was work to be done.
Marshall expressed the hope that Sarah would not
"monopolize" her husband. The experiment was not altogether
successful. Sarah Story apparently enjoyed Washington
society well enough, but her digestive system did not. And
she perhaps grew tired of "waiting in the wings for
conferences to cease." She departed town before her husband,
and did not return in subsequent years.
But her stay set a precedent. The boarding house culture
no longer held fast. Justice John McLean, appointed in 1829,
decided he would reside at home in D.C. with his wife and
would not board with his brethren, and Justice William
Johnson, an early dissenter, also stayed away from the group
quarters. Chief Justice Marshall was not pleased. The
scattering of the Justices, he anticipated, would mean more
seriatim opinions, undermining the unified voice Marshall
had worked hard to achieve.
By the time of John Harlan's investiture in 1877, a
Supreme Court appointment meant a move to the Capital City
for all in the Justice's immediate family, and it also meant
an unpaid job for the Justice's wife. Malvina Harlan, who
described her work and days in a still unpublished
manuscript, wrote of the "at home" Monday receptions Supreme
Court wives were expected to hold. The callers came in
numbers. Malvina Harlan wrote that she might receive as many
as 200 to 300 visitors on these occasions. "At home" Mondays
were more fancy than plain. Tables would be spread with
salads and rich cakes. The young people might dance a waltz
or two while the older folk looked on.
Malvina's memoirs tell of an episode showing that Supreme
Court wives attended to more than the social side of a
Justice's life. Justice Harlan was a collector of objects
connected with American history. He had retrieved for his
collection, from the Supreme Court Marshal's Office the
inkstand Chief Justice Taney had used to pen the 1857 Dred
Scott decision, which held that no person descended from a
slave could ever be a citizen, and that the Constitution's
due process clause safe-guarded one man's right to hold
another in bondage. It was a decision with which Justice
Harlan strongly disagreed, an opinion overturned by the
Civil War and the Fourteenth Amendment.
Chivalrous gentleman that he was, Harlan promised to
deliver the Taney inkstand to a woman he met at a reception,
who claimed a family relationship to Chief Justice Taney.
Malvina thought the promise unwise, so she hid the inkstand
away among her own special things, and Justice Harlan was
obliged to report to the Taney relative that the item had
been mislaid.
Over the next few months, the Supreme Court heard
argument in the Civil Rights Cases, which yielded a judgment
striking down the Civil Rights Act of 1875, an Act Congress
passed to ensure equal treatment for all persons in various
public accommodations. Justice Harlan, alone, resolved to
dissent. He labored over his dissenting opinion for months,
but "his thoughts refused to flow easily." He seemed,
Malvina wrote in her memoirs, trapped "in a quagmire of
logic, precedent and law."
Malvina, who grew up in a free state family strongly
opposed to slavery, wanted her husband to finish that
dissent. On a Sunday morning when the Justice was attending
church services, Malvina retrieved the Taney inkstand from
its hiding place, gave the object "a good cleaning and
polishing, and filled it with ink. Then, taking all the
other inkwells from [her husband's] study table, [she] put
the historic ... inkstand directly before his pad of paper."
When Justice Harlan came home, Malvina told him he would
find "a bit of inspiration on [his] study table." Malvina's
memoirs next relate:
"The memory of the historic part [t]hat
Taney's inkstand had played in the Dred Scott
decision, in temporarily tightening the shackles of
slavery ... in the ante-bellum days, seemed, that morning,
to act like magic in clarifying my husband's thoughts in
regard to the law that had been intended ... to protect the
recently emancipated slaves in the enjoyment of equal 'civil
rights'. His pen fairly flew on that day and ... he soon
finished his dissent."
[The life of Court spouses has changed greatly since the
days I have described. Spouses do not receive "at home"
callers on Monday, or any day; they pursue careers or
interests of their own. Adding "humanizing" variety, two of
them are men. Spouses have seats in a special section of the
courtroom, and they lunch together three times a year,
rotating cooking responsibility. One member much in demand
as a co-caterer is my husband, super chef Martin D.
Ginsburg.]
My next set of stories concern the first women law clerks
to serve at the Supreme Court. You will see from these
stories the large progress made from not so long ago days.
The very first woman to clerk at the Court was Lucille
Lomen, engaged by Justice William 0. Douglas for the 1944
Term. It happened this way. The nation was at war, and the
west coast deans who recommended clerks to Douglas found no
student worthy of his consideration. Douglas wrote to the
Dean at the University of Washington Law School:
"When you say you have 'no available graduates' whom you
could recommend for appointment as my clerk, do you include
women? It is possible I may decide to take one, if I can
find one who is absolutely first-rate."
The Dean recommended, and Douglas hired, Lucille Lomen.
Douglas later reported that Lomen was "very able and very
conscientious." She served after her clerkship as an
assistant Attorney General for the State of Washington, and
later became General Electric's counsel for corporate
affairs. [Her Washington Law Review note on Privileges and
Immunities under the Fourteenth Amendment, published in
1943, has had remarkable staying power. I have it on
reliable authority that Lucille Lomen's student note appears
this very semester on Harvard Law School Professor Laurence
Tribe's Constitutional Law seminar reading list.]
Six years after Lucille Lomen's 1944 to 1945 service,
Justice Douglas again thought about hiring a woman. He had
in mind a "two-for." As he described his thinking:
"It may be that [my] second law clerk should
be someone who is an accomplished typist, someone who can a
half or three-quarters of the time help Mrs. Allen
[Douglas's secretary]. In this connection it might be
desirable to consider getting a woman [law school graduate],
a woman who can qualify as a lawyer and who can assist the
regular law clerk for part of the time and help Mrs. Allen
part of the time. If that procedure is worked out, the woman
selected might stay for more than one year, say two years,
perhaps even three."
[Now before you put down Justice Douglas for hopelessly
chauvinist thinking, consider this. If push comes to shove,
a Justice generally can do for herself what a law clerk
does. But our secretaries are the people who keep us going.
At the Supreme Court, they manage the office and contend
with the ceaseless paper flow and mail floods, sparing us
from countless distractions so we can concentrate on the job
of judging.]
Justice Douglas never found his double duty person, and
it was not until the 1966 Term, over two decades after
Lucille Lomen's service, that another woman came to the
Court as a clerk. (I have it on reliable authority, however,
that the idea was kept alive. In 1960, one of my law
teachers, who selected clerks for Justice Frankfurter,
suggested that I might do. The Justice was told of my family
situation - I was married and had a 5-year old daughter. For
whatever reason, he said No. In recent years, I might add,
the Justices have seen from the best evidence - law clerks
they have engaged - that motherhood need not impede diligent
service. This Term I expect to add to that evidence - one of
my law clerks is the mother of two children, both under age
3.)
For the 1966 Term, Justice Black engaged Margaret
Corcoran, daughter of a prominent Democrat, Thomas Corcoran,
known around town as Tommy the Cork. Black was not entirely
pleased with Margaret's performance. He thought she didn't
work hard enough. One time, for example, she told him she
couldn't review 35 cert. petitions (petitions for Supreme
Court review) over the weekend, because of plans to attend
VIP dinners with her father. She was, in these
extracurricular activities, a dutiful daughter. Corcoran was
a widower and sometimes needed a substitute for a spouse at
special events.
In 1968, Martha Field, now professor of law at Harvard,
clerked for Justice Fortas, and in 1971, Barbara Underwood,
once a law professor, later a prosecutor, and now Deputy
Solicitor General, clerked for Justice Marshall. Justice
Douglas took the lead again in the 1972 Term, when his
selection committee engaged two women. He wrote when told
the news:
"The law-clerk-selection committee has
informed me that my two clerks for next year are women.
That's Women's Lib with a vengeance!"
That same Term, 1972, Justice White engaged a woman as a
law clerk and the following year, then Justice Rehnquist did
so too. The 1972 Term, [Armstrong and Woodward relate in The
Brethren] was not a vintage year in Justice Douglas'
chambers. Midway through the Term, one of the clerks asked
the Justice about a note she had received from him. "Excuse
me, Mr. Justice, " she said, "I've been looking at this
note[,] I'm afraid I don't understand it." "I'm not running
a damn law school" the Justice responded, "read my opinions
on the subject."
The clerk sent her boss a note: "I'm very sorry I made a
mistake on this case. I'm sure there will be other times
this year when I will make other mistakes. However, I've
found that civility in professional relationships is most
conducive to improved relationships. You can afford to be
basically polite to me."
Things went down-hill from there. Eventually, the Justice
hired a third law clerk, a young man, with whom he had
better rapport. The other woman engaged by Douglas for the
1972 Term got along well enough with her boss, but had a
problem of a different sort. She liked a young man who
worked on the Court's staff, a man whose father served as
messenger for Chief Justice Burger. The young man had been
active in urging improvement in Marshal's Office working
conditions. Douglas' clerk and the young man first dated,
then began living together. He was black, she was white. He
continued to press for better working arrangements for staff
people. He was fired; she kept her job. The two eventually
married.
After the 1973 Term, women law clerks no longer appeared
as one-at-a-time curiosities. From 1973 through 1980, the
Justices engaged 34 women and 225 men as law clerks. From
1981, Justice Sandra Day O'Connor's first Term on the Court
through 1997, 162 women and 446 men were hired. In the
current Term, 1998-1999 the law clerk contingent for active
Justices included 13 women and 21 men.
If one recalls, for example, that until 1971 no sex-based
differential in any state or federal law had ever been found
unconstitutional by the Supreme Court, that in some States,
women were not called for jury service on the same basis as
men until the end of the 1970s, while in others, parents
were required to support sons three years longer than
daughters, and that Louisiana retained its husband is "head
and master" of the community rule until the start of the
1980s, it is not surprising that the High Court's bench
remained all male until President Reagan's historic
appointment of Sandra Day O'Connor in 1981. But the idea
that "Haply a women's voice [might] do some good" in our
Marble Palace was not a sudden realization. First President
seriously to consider the prospect was Harry Truman.
The woman President Truman had in mind was Florence
Ellinwood Allen, first woman ever to serve on Ohio's Supreme
Court, later, in 1934, first woman ever to be appointed to
an Article III federal judgeship, a seat on the U.S. Court
of Appeals for the Sixth Circuit. President Truman was
discouraged by the negative reaction of the Chief Justice
(Fred Vinson) and the Associate Justices he consulted. Allen
had gained universal respect for her intelligence and
dedicated hard work. But the Brethren feared that a woman's
presence would inhibit conference deliberations where, with
shirt collars open and shoes off, they decided the great
legal issues of the day. Allen herself was a realist. She
had seen great changes in Ohio and the nation, most notably,
women's suffrage, won first at the city, then the state,
then the national level, a struggle to which Allen devoted
her bright mind in years of tireless endeavor. It was too
soon, she understood. A Supreme Court appointment "will
never happen to a woman [during my lifetime]," she said.
The second woman ever to be appointed to a U.S. Court of
Appeals was Shirley Mount Hufstedler, who served on the
Ninth Circuit from 1968 until President Carter named her
first Secretary of the newly created Department of Education
in 1979. President Carter changed the face of the U.S.
Judiciary. He appointed women and members of minority groups
in numbers, not by compromising quality, but by looking for,
and drawing on the talent of all of the people of our great
nation. Since his brave initiative, there has been no return
to old ways. During Carter's Presidency, Shirley Hufstedler
was considered by many to be the top candidate (not just the
top female candidate) for Supreme Court appointment. A New
York Times reporter wrote of her:
"Scratching around the soil for detractors
yield[ed] no worms ... [S]he appears to have no enemies, not
a single person ... came up with anything less than praise."
But no vacancy opened on the Court in Carter's term.
Great lady that she is, Shirley spoke at the Senate hearings
on my nomination; on that occasion, she brilliantly
recapitulated the progress women have made toward true
partnership with men in U.S. society.
Move forward with me now to June 25, 1996, when the
Supreme Court released its judgment in a case called
United States v. Virginia, the VMI case. As I read
the summary of the opinion aloud in Court, I looked across
the bench to Sandra, when I referred to her pathmarking
opinion in a 1982 case, Mississippi University for Women
v. Hogan, a decision holding unconstitutional the
exclusion of qualified men from a highly-regarded State
School of Nursing. The exclusion, Justice O'Connor observed,
tended to "perpetuate the stereotyped view of nursing as [a
job for women only]"; instead of advancing women's welfare,
Justice O'Connor recognized, this occupational reservation
may in fact have helped to hold down wages in the nursing
profession.
Justice O'Connor, in 1982, close to the end of her first
year as first woman on the U.S. Supreme Court, announced the
Mississippi Nursing School opinion for a Court that divided
5-4. The vote in 1996 in the VMI case was 7-1. with the
Chief Justice writing a concurring opinion in support of the
judgment. What occurred in the years intervening from 1982
to 1996 to make the VMI decision not a close call?
Justice O'Connor offered this clue in her 1991 Madison
Lecture at New York University:
"For both men and women the first step in
getting power is to become visible to others, and then to
put on an impressive show... As women achieve power, the
barriers will fall. As society sees what women can do, as
women see what women can do, there will be more women out
there doing things, and we'll all be better off for it."
Harvard President Neil L. Rudenstine made a point in
harmony with Justice O'Connor's when he spoke at a Radcliffe
College Convocation in March 1994:
"We [now] know that talents of all kinds -
analytic, creative, athletic, argumentative, and
entrepreneurial - are distributed in essentially equal
portions - and an infinite variety of combinations - among
women and men alike."
Public understanding had advanced so that people could
perceive that the VMI case was not really about the
military. Nor did the Court question the value of single-sex
schools. Instead, VMI was about a State that invested
heavily in a college designed to produce business and civic
leaders, that for generations succeeded admirably in the
endeavor, and that strictly limited this unparalleled
opportunity to men.
What caused the Court's understanding to dawn and grow?
Judges do read newspapers and are affected, as distinguished
Constitutional Law Professor Paul Freund once said, not by
the weather of the day, but by the climate of the era. Since
the start of the 1970s, Supreme Court Justices, in common
with judges on other courts, have become increasingly aware
of a sea change in United States society. Their still
evolving enlightenment has been advanced by the briefs filed
in Court, the women lawyers and jurists they nowadays
routinely encounter, and perhaps most deeply by the
aspirations of the women, particularly the daughters and
granddaughters, in their own families and communities.
The Court now has in the Justice's robing room and in the
lawyers' lounge women's bathrooms equal in size to the
men's. Our Chief, after a 1993 rehearsal I attended, is now
comfortable addressing our Attorney General, as she prefers,
not General, but Ms. Reno. Is the progress complete? Not
quite when the tally shows that only 30 (13 percent) of the
227 lawyers who argued before the Court from October 1997
through June 1998 were women (up from one percent in the
1966 Term, and 5 percent in the 1976 Term). And when in
1997, our Acting Solicitor General, a distinguished Harvard
Law School professor, and a former law clerk to the Chief
Justice each began his response to my question at oral
argument: "Well, Justice O'Connor...."
Indeed, in July 1998, one of my colleagues, with me at a
meeting in Paris, called me before an assemblage of French
jurists, "Justice O'Connor." Also when the Court divides as
sharply as it did last spring (April 22, 1998) in a case,
Miller v. Albright, involving a woman denied
citizenship because her unwed citizen parent was a father,
not a mother. (Some months ago, a former law clerk, now a
law teacher, told me of the response of one of her students
to a spring 1998 Constitutional Law final exam question. The
student wrote how, in her VMI opinion, Justice O'Connor had
added some bite to the [equal protection] test in regard to
gender-based classifications.)
But John O'Connor has helped me to put occasional lapses
in proper perspective. He recalled a 1981 black-tie dinner
at the State Department, his wife's first Term on the Court.
As the O'Connors approached the table to which they were
assigned, John introduced himself to a man already seated:
"Hello, I'm John O'Connor." The prompt reply: "Oh, Justice
O'Connor, I'm so happy to meet you. I've heard so many
wonderful things about you." My husband, Marty Ginsburg,
often mistaken for Judge Ginsburg in my early 1980s days on
the U.S. Court of Appeals for the D.C. Circuit, has yet to
be called Justice Ginsburg, although, he says, he remains
hopeful.
Last May, at the celebration of the reopening of the
renovated Library of Congress Jefferson Building, a college
student came up to my table and asked if I could help with
an assignment. She had one question and hoped to compose a
paper by asking diverse people to respond. What, she asked,
did I think was the largest problem for the next century. My
mind raced past privacy concerns in the electronic age,
assisted suicide, deadly weapons, outer space. I thought of
Justice Thurgood Marshall's praise of the evolution of the
concept, "We, the People," to include once excluded,
ignored, or undervalued people, then of our nation's motto:
E Pluribus Unum, of many, one. The challenge, I responded,
is to make and keep our communities places where we can
tolerate, even celebrate, our differences, while pulling
together for the common good. "Of many, one" is the main
challenge, I believe, it is my hope for our country and
world.
Two years ago, in a tribute to Justice O'Connor, United
States District Judge Kimba Wood, of the Southern District
of New York, said that Justice O'Connor's appointment to the
U.S. Supreme Court was a "momentous" event. But Justice
O'Connor's greatest achievement, Judge Wood added, is still
to come. It is an achievement I strive, along with many
brothers- as well as sisters-in-law, to further advance - to
make women's participation at our Court and in all manner of
legal work, indeed in all manner of the world's work, not
"momentous,'" but "commonplace." As Justice O'Connor said,
and as I fully agree, "we'll all be better off for it."
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