Erwin Chemerinsky: Good afternoon. My name is Erwin Chemerinsky, and I’m tremendously fortunate to be the dean of Berkeley Law. This is a very special occasion for us. It is the inaugural Herma Hill Kay Memorial Lecture.
Herma Hill Kay taught at Berkeley Law for 57 years. She was the second woman to be on the Berkeley Law faculty. She spent a decade as dean, the first woman dean on the faculty. She was a mentor to literally thousands of students. She was an expert in many fields of law — family law, conflicts of law, feminist jurisprudence.
This is what I hope will be the first of many lectures to come in honor of Herma Hill Kay, and we could not possibly have a more distinguished speaker to be the inaugural Herma Hill Kay Memorial lecturer than Justice Ruth Bader Ginsburg.
I want to describe for you the program for the afternoon. I’m going to do all of the introductions at the beginning because you’re not here to listen to me. You’re here to hear the inaugural Herma Hill Kay Memorial Lecture. I am going to yield the podium to our chancellor, Carol Christ.
Just a quick introduction for those who haven’t had the wonderful opportunity to meet Chancellor Christ. After getting her degree in English, her Ph.D. from Yale University, she joined the Berkeley faculty as an English professor in 1970. She was thus a colleague and close friend with Herma Hill Kay for many years. She went from being professor to being chair of the department to being dean to being the executive vice chancellor and provost.
She then went to Smith College, where she served as president for 11 years, coming back to join the faculty at Berkeley. She then stepped in as interim executive vice chancellor and provost and in 2017 became our chancellor. As I said on other occasions, I’ve been a law professor a long time, but I’ve never seen a university president or chancellor as universally admired, revered as Chancellor Christ.
After Chancellor Christ, we’re then going to hear reflections on Herma Hill Kay from Justice Ginsburg. I know it is cliche in introducing a speaker to say that the person needs no introduction, but I cannot imagine an instance where it is more true than this one. After all, this is the first justice in history who is widely publicly known by just initials.
So just a quick biography — she attended Cornell University and then Harvard Law School and Columbia Law School. After working as researcher, she became a professor at Rutgers Law School and then at Columbia Law School. She was the founder of the ACLU Women’s Rights Project, and she litigated the initial landmark cases before the Supreme Court with regard to women’s rights. She was appointed the United States Court of Appeals for the District of Columbia Circuit by President Jimmy Carter, and in 1993, President Bill Clinton named her to be an associate justice on the United States Supreme Court.
After Justice Ginsburg with her reflections, my colleague, professor Pamela Samuelson. Professor Samuelson went to the University of Hawaii and then to Yale Law School. She then became a very distinguished law professor, literally one of the leading figures in the areas of intellectual property law. She was also a colleague of and close friend to Herma Hill Kay for many years.
I also must take a moment to thank Pam Samuelson her husband, Bob Glushko, for originating the idea of having an annual Herma Hill Kay Memorial Lecture, for donating funds to get it started. And many of our faculty have also contributed funds, so as I said, this is a lecture series to go on for many years to come.
Then the lecture itself will be a conversation between Justice Ginsburg and Berkeley Law professor Amanda Tyler and my colleague, professor Tyler, seated, obviously, with Justice Ginsburg on the stage. First, Tyler went to Stanford and then to Harvard Law School, clerked for Judge Guido Calabresi in the Ninth Circuit Court of Appeals for the Second Circuit, then had the wonderful privilege of clerking for Justice Ginsburg on the Supreme Court. After time in private practice, she was a professor at George Washington University Law School and joined the Berkeley Law faculty seven years ago. She’s an expert in areas such as civil procedure and federal courts. I must thank Amanda here for all of her efforts in bringing Justice Ginsburg to be the inaugural lecturer in the Herma Hill Kay Memorial series.
Finally, before I leave the podium, I need to extend thanks. Putting together a large event like this is a tremendous amount of work, and many people in the law school really did work tirelessly to have it happen. So I want to thank Thembi Anne Jackson, who’s the head of Event Service; Whitney Mello from the Dean’s Office; Holly Johnson, who works in our development office; and I also want to thank our communications staff, especially Alex Shapiro and Rachel DeLetto. And if I could, I’d love to have round of applause for all of these people who put this event together.
And with that, we’ll begin the program after hearing from our terrific chancellor, Carol Christ.
Carol Christ: Good afternoon, and thank you for joining us on this very special occasion. It’s both a tremendous privilege and a true pleasure to welcome US Supreme Court Associate Justice Ruth Bader Ginsburg to campus for Berkeley Law’s inaugural Herma Hill Kay Memorial Lecture. Justice Ginsburg is one of the nation’s most important legal minds. She’s an embodiment of quiet yet forceful persistence.
She’s a feminist icon, and she’s a role model for millions. Over more than half a century, she has fought for women’s equality under the law, founding the Women’s Rights Project at the ACLU, winning landmark victories in five of the six cases she argued before the Supreme Court, and supporting gender equality from the bench, even as she has herself opened doors for women that had been previously shut, becoming the first tenured woman professor at Columbia Law and ultimately the second woman on the United States Supreme Court.
Justice Ginsburg joins us today in part to honor and memorialize her friend and fellow trailblazer, former Berkeley Law Dean, Herma Hill Kay, after whom this new speaker series is named. When Herma first joined Berkeley in 1960, she was the second woman on the law faculty, hired only when the first, Barbara Armstrong, announced her retirement. Despite encountering all manner of obstacles, Herma thrived here, becoming a leading scholar in three separate fields of law– conflict of laws, family law, and sex-based discrimination law.
As a scholar of conflict of laws, she authored some of the most important works of the second half of the 20th century, including lectures on government interest analysis that she delivered at the Hague Academy of International Law in 1989. As an expert in family law, she was the primary drafter of the California Family Law Act of 1969, the nation’s first no-fault divorce law, and the Uniform Marriage and Divorce Act, which has served as a template for states’ laws nationwide. And as a discrimination law scholar, in 1974, she co-authored with then professor Ruth Bader Ginsburg the first casebook on sex-based discrimination.
Herma’s brilliance grace, humor, tact, moral compass, and unyielding resolve saw her shatter barriers in both the legal world and at Berkeley. And she served as our first woman law dean from 1992 to 2000. Afterwards, she returned to teaching, completing an astonishing 57 years of service to our university before her death in 2017.
I admired Herma from the time I joined the faculty in 1970 when only 3% of the faculty were women. I looked eagerly for women to serve as role models to show me how to be as a woman, a scholar, and a professional. Herma was that to me.
I got to know her well when I was provost in the 1990s and she was dean of the law school. We frequently had lunch at the Women’s Faculty Club. I saw her character and her extraordinary intelligence in those lunches, her deep commitment to women’s issues and to family issues, her love for the university, her sense of humor, her wisdom. I think she would be so pleased with this as the first Herma Hill Kay Memorial Lecture.
Thank you so much for joining us today, and thank you in particular to professor Pamela Samuelson and her husband, Dr. Robert Glushko, for their generous seed gift that led to the creation of this series. As legal scholars, Both Justice Ginsburg and Herma Hill Kay were, in Herma’s words, part of a small band of outsiders who braved rejection, isolation and hostility to establish an initial foothold in legal education. They helped pave the way paved the way for a proliferation of women lawyers, judges, and law professors, and their broader impact has been felt throughout the nation and in so many aspects of society. The ground they broke is now well trod, and we hold them in our debt.
And now to share her own reflections on Herma, here is Associate Justice Ruth Bader Ginsburg.
Ruth Bader Ginsburg: Herma Hill Kay was the 15th woman to hold a tenure-track position at a law school accredited by the Association of American Law Schools. For more than 25 years, she devoted her time and talent to bringing vividly to life the working days of the 14 women who preceded her in appointments to AALS-accredited law faculties. And in a final chapter, she wrote of the women who came next, achieving tenure-track appointments in the almost three-score years since 1960.
Retrieving this history was a huge undertaking, one of inestimable value. The book remains unpublished, but I know the Berkeley faculty wants genuinely to honor Herma. And so it will be relentless in making sure the work, for which I wrote the introduction at Herma’s request in August 2015, is soon in print.
To tell the story of the first 14, Herma read their publications. She personally interviewed the nine still alive when she embarked on the project, and for all of them, she elicited the remembrances of colleagues when available and scores of students. Without Herma’s prodigious effort, we would scarcely comprehend how women altered legal education and the law itself.
Most of the pioneers, the seven appointed from 1919 to 1949 and the equal number appointed in the next decade, did not think of themselves as exceptional or courageous. Eleven were married. Nine had children. Several were family law scholars, but most taught in diverse areas, including commercial law, corporate law, and oil and gas law.
As one of them commented, we didn’t talk about what we were doing. We just did it. Different as they were, they shared a quality essential to their success: perseverance. And all of them overcame the odds against them for the same reason. They found law study and teaching tremendously fulfilling.
Reading Herma’s manuscript more than four years ago, I found one thing missing. Herma told us almost nothing about herself. It was fitting, I decided, to address that omission by devoting most of my introduction to Herma Hill Kay, law teacher, scholar, reformer nonpareil, and my treasured friend. These remarks convey what I wrote about Herma.
When Herma was a sixth-grader in a rural South Carolina public school, her teacher witnessed her skill in debate and suggested what she should do with her life. She should be a lawyer. Undaunted by the profession’s entrenched resistance to women at the bar, that is just what Herma set out to do after earning her undergraduate degree from Southern Methodist University in 1956.
Initially told by famed law professor Karl Llewellyn that she didn’t belong in law school, Herma rejected that bad advice, and she became a stellar student at the University of Chicago Law School. There she worked as a research assistant for path-marking conflict of law scholar Brainerd Currie and co-authoring two leading articles with him. On professor Currie’s recommendation, Herma gained a 1959 clerkship with California’s Supreme Court Justice and later Chief Justice Roger Traynor, a jurist known for his brilliance and equally for his humanity.
Despite Traynor’s strong endorsement of Herma, Chief Justice of the United States Earl Warren wasn’t up to engaging a woman as his law clerk in 1960, nor were his fellow justices. Traynor’s recommendation carried heavier weight with the Berkeley Law faculty where Herma commenced her career in the academy, and in just three years, in 1963, she became a full professor with tenure.
Inspired and encouraged by Berkeley’s distinguished professor Barbara Armstrong, first woman to achieve tenure at any law school in the USA, Herma made family law her field of concentration along with conflict of laws. At a young age, uncommon for such assignments in 1968, Herma was reported co-reporter of the Uniform Marriage and Divorce Act. That endeavor of the National Conference on Uniform State Laws launched no-fault divorce as an innovation that would sweep the country in 10 years. In the ensuing years, in California and elsewhere, Herma strived to make marriage and divorce safer for women.
Herma and I first met in 1971 at a Yale Law School-sponsored Women in the Law Conference. For the rest of that decade, she was my best and dearest working colleague. Together with Kenneth Davidson, then at SUNY Buffalo Law School, we produced in 1974 the first published set of course materials on sex discrimination and the law. Before our first conversation, I knew Herma through her writings. She co-authored with Roger Cramton and David Currie the casebook I used in teaching conflict of laws.
Her extraordinary talent as a teacher, I knew well, had garnered many awards, lectureship invitations, and visiting offers. I was also aware of Herma’s reputation as a woman of style who had a private pilot’s license, flew a Piper Cub weekly, and navigated San Francisco hills in a sleek yellow Jaguar.
Herma had a remarkable quality not readily captured in words. A certain chemistry was in play when one met her, something that magically made you want to be on her side. Herma’s skill in the art of gentle persuasion accounted in significant part for the prominent post she held in legal and academic circles.
In 1973 and 1974, she chaired Berkeley’s academic senate. From 1992 until 2000, she served as Berkeley Law School’s valiant dean, meeting severe budgetary constraints by honing her skills as a fundraiser, planning for the law school’s new home, promoting depth and diversity in faculty appointments, and making the place more user-conscious and user-friendly. An unflinching partisan of equal opportunity and affirmative action, Herma managed to reset Berkeley Law School’s course to advance the admission of African American and Hispanic students after the initial shock of Proposition 209, California’s strident anti-affirmative action measure.
Before and after her deanship, she served the university and the university senate in various capacities, sitting on or chairing, by her own reckoning, 50 zillion committees. Outside the university, she played lead roles in major legal institutions. She served on the executive committee of the AALS for four years and became AALS president in 1989. She chaired the association’s nominating committee in 1992 and was a member of the Journal of Legal Education Editorial Board from 2001 to 2004.
Herma was Secretary of the American Bar Association’s Section on Legal Education and Admissions to the Bar from 1999 to 2001. She was an executive committee member of the American Bar Foundation from 2000 to 2003 and both council and executive committee member of the prestigious American Law Institute from 2000 to 2007.
In the private philanthropic domain, she chaired the Russell Sage Foundation board from 1980 to 1984 and the Rosenberg Foundation board from 1987 to 1989. For many years, she served as sole woman on the editorial board of the Foundation Press, and she counseled the then brand new Senator Dianne Feinstein on judicial appointments. In that capacity, she strongly supported my nomination to the U.S. Supreme Court in 1993.
Herma was a proponent of interdisciplinary education, team-teaching law and anthropology with Laura Nader in the early 1960s and later law and psychiatry with Irving Philips. As dean of Berkeley Law School, she launched the Center for Clinical Education and made clinical experience a mainstay of the curriculum. At the Hague Academy of Private International Law in the summer of 1989, she delivered a series of influential lectures, defending professor Brainerd Currie’s interest analysis approach to resolving conflict of laws, showing how stunningly she could perform outside an academic milieu.
In 1978, she argued flawlessly before the U.S. Supreme Court gender discrimination case. I was in the audience. It was Herma’s first document before a federal appellate bench, and it could not have been better.
A new chapter opened in Herma’s life in 1975 when she married psychiatrist Carroll Brodsky, widowed father of three boys, the youngest 12, the older boys in their teens. Carroll was as loving and supportive as a partner in life can be. Each week during Herma’s deanship, Carroll sent a gorgeous floral display to brighten the dean’s workspace. And although Herma stopped piloting planes when she took on the joys and burdens of family life, she became an avid swimmer and an accomplished gardener, growing roses and orchids on the balcony of her Telegraph Hill apartment.
Herma’s persistent endeavor for well over a half century was to shape the legal academy and the legal profession to serve all of the people law exists, or should exist, to serve and to make law a protector of women’s capacity to chart their own life’s course. No person was better equipped than Herma to write about the women in law teaching who paved the way for later faculty and student generations, populations that reflect the capacity, diversity, and talent of all of our nation’s people.
Her comprehensive and engaging presentation of the history of women in legal education is cause for celebration. It has lingered too long in an unpublished state, and I am so pleased to know that before much longer, it will be in print. Thank you very much.
Pamela Samuelson: Thank you, Justice Ginsburg, for this enormous tribute to Herma Hill Kay. I am here, like the justice, to pay tribute to Herma Hill Kay. Relatively few of the people who are here today had the benefit of having Herma either as a colleague or as a teacher. I had the pleasure of having both of those experiences, but partly, I want today to help you understand how important she was to the law school, to the legal profession, and how much she did. So that was one of the reasons that we decided to create this lecture series so that you would know what an amazing person Herma Kay was and how lucky we were to have her as our dean for a period of years and a colleague at the law school, as you heard, for 57 years, which is amazing.
So I’m actually going to talk about her mostly through pictures. So one of the things about Herma Kay is her hair was always perfect. And mine never was, but I thought that was a– this shows that it went back a long ways.
This is actually a picture of her, one of six women who had been admitted to the bar in California. The year that she was admitted, there were 140 people admitted to the bar and only six women. That’s Herma with a fancy hat in the middle.
And here’s the picture of her as a teacher. This is how I first got to know her. I had moved to San Francisco in the hope of building up residency in the state of California so that I could go to Berkeley Law School the following year. I was working as a paralegal, and somehow, I found out about the class that she was teaching in the evening about women in the law.
And I said, I want to know what it feels like to go to law school. I want to have an experience like this. So every week after I finished my job, I’d basically get in the BART and come over and participate in this class.
And I learned so much, and one of the things that I learned is that women aren’t treated or weren’t, at that time, treated as equals of men. And I thought that was outrageous, and so that actually help motivate me further to go to law school and to have Herma as my inspiration. And of course, part of the reason why we’re doing this lecture series is I’m only one of many thousands of women in particular who were inspired by her and who were mentored by her and who had the luck to have her as a teacher.
She was as good a teacher to the men as she was to the women. One of the things that I liked about her was that she liked everybody, and she was so good in the classroom. She won awards for teaching as well as for so many other things.
This is actually a picture of her as the dean of the law school, the first woman, as you know, to have been named as the dean, first woman to be named as the dean of this particular law school. And one of the things that she did that I think she was very proud of was she helped to hire more women and hire minority faculty members, and this is some of the group that she had recruited by before I actually joined the faculty in 1996.
But you can imagine what a thrill it was for me, after having had her as a teacher before I went to law school, to come back to Berkeley and to have her as my dean. And she was a champion not only for hiring of women and minorities, but also she founded or helped to found and supported the founding of the Center for Social Justice, which was actually an initiative that helped to make the community know that the people who were applying to law school, who were interested in social justice, you can come to Berkeley, and you can actually do that. And it’s one of the most vital centers that we have now at the law school.
She also championed the hiring of and the creation of in-house clinical legal education. Initially, there was some resistance about doing that because it’s very resource intensive, and for some faculty, it just seemed like skills training. But in fact, Herma and Eleanor Swift, who helped create this Center for Clinical Legal Education were just prescient in kind of realizing that experiential learning is a really important and valuable part of what law school can offer.
So here is a picture of her with some of the deans, former deans of the law school– and same suit. But I wanted to actually also convey what a vital person she was, what a great sense of humor she had, and how much she actually tried to make the life kind of interesting. So there was her with her plane with a dog. Look at how elegant she is in her black tie outfit. Here she is singing, actually, at a faculty sketch and played ball. And she’s really good at that, too.
And she helped to oversee the construction of what became the building that many of us at north addition have. This is another picture of her with people.
This is her signature yellow jacket. She loved that jacket. She wore it all the time. I love that jacket, too.
She was great with our alums. She really was a great person, actually, some deans are actually a little shy. She wasn’t shy. I think she was a great person.
Here she is with Eleanor Swift, celebrating, and here she is with her granddaughter and with a couple of other students. And this is the Lifetime Achievement Award that Justice Ginsburg and Herma Kay won. I think it was in 2015. And here is a picture of her in that signature yellow jacket, giving some remarks, and this is the two of them receiving the award at the AALS.
And with that, I’ll let you see two of her for the rest of the afternoon. Thank you.
Amanda Tyler: Thank you, Pam. Well, I have the distinct privilege of speaking on behalf of everyone here at UC Berkeley and saying, welcome, justice. We are very thrilled to have you here and to have you here for such a very special occasion, honoring Herma Hill Kay.
Now, as everyone knows, you have recently had your fourth bout with cancer, so I have to ask, how are you?
Ruth Bader Ginsburg: Compared to I was six months ago, very well.
Amanda Tyler: Wonderful. Wonderful.
Now you’ve given me my opening to ask you my next question, which I’ve been dying to ask you. As everyone here probably also knows, I believe you’re the only Supreme Court Justice whose personal trainer has published a workout book around your regimen. So I have to ask — and I know you’re also a regular at the justices gym — are you back at the gym?
Ruth Bader Ginsburg: Yes, I never left it. Even in my lowest periods, I couldn’t do very much, but I did what I can. I’ve been working with Bryant Johnson, author of The RBG Workout book, since 1999. We started at the end of my first cancer bout, colorectal cancer. My husband said, you looked like an Auschwitz survivor. You must do something to build yourself up. So I asked around.
Bryant, when he’s not training, is on the clerk’s office staff at the US District Court for the District of Columbia. We have been working together since 1999.
Amanda Tyler: Well, you’ll just have to let me know when you’re ready to run a marathon with me.
I’m not quite up to that, but I do push-ups, flanks, front and side, lots of weight-bearing exercises. Bryant, for a time, also helped Justice Breyer and Justice Kagan.
We’ll have to ask him when we get here who his favorite client is. So I wanted to say a few words at the outset about Herma Hill Kay. As your remarks highlighted, you two were friends going back decades, and you two actually graduated from law school the same year, 1959. But as you said, you met years later, and it’s really exciting and interesting to me — and I think will be the audience — that you wrote the first book on gender discrimination in response to requests from your students. And a little-known fact is that the women of Berkeley Law had a huge celebration when that book came out here.
And another thing that you mentioned is that the first woman appointed as a law professor at an ABA- and AALS-approved law school was here — Barbara Nachtrieb Armstrong. She was appointed in 1919, which is exactly 100 years ago, and so that’s something that we’re very proud of here at Berkeley. Now, Herma, as I think you mentioned, was the 15th woman law professor appointed at such a school, and you were the 19th.
And you talked about Herma’s book and how important it is that we preserve it, and I just have to say that I’m really excited to see it and to see your introduction and her chronicling of the stories of these first women law professors in print. So hopefully, we will see that within the next year, and maybe we’ll be able to entice you back for a celebration.
Now I want to talk a little bit about your life. I have read that you have said on occasion that you were not thinking that you would be a lawyer when you were a kid. And I’ve also recently been reading a book that you put together, which is a compilation of things that you’ve written, and in it, there is a passage from something that you wrote for your student newspaper when you were 13 years old. And you talked in that piece about the importance of, among other things, the Magna Carta, the English Bill of Rights, and the Declaration of Independence. Now, I’m not sure, but that sounds like somebody who’s thinking she might become a lawyer.
Ruth Bader Ginsburg: It was a very hopeful time. It was the end of World War II, and I listed as the last of these great documents the then new UN charter. There was a dream of one world at peace, and that’s what prompted that article. But I didn’t think about the legal profession because women were not there.
Amanda Tyler: So I’m going to fast-forward a little bit, and you go to college at Cornell. And you’ve told me in the past that that’s where you started to think about maybe becoming a lawyer. How did that happen?
Ruth Bader Ginsburg: Yeah. I was at Cornell from 1950 to 1954, not very good years for our country. There was a huge Red Scare, and there was a senator from Wisconsin, Joe McCarthy, who saw a communist in every closet. And he was holding people before the House Un-American Activities Committee, the Senate Internal Security Committee, and badgering them about organizations they had belonged to, socialist organizations in the height of the Depression in the 1930s.
I was then a research assistant to a great teacher, Robert E. Cushman, who taught constitutional law to undergraduates, and he wanted me to be aware that our country was straying from its most fundamental values. He pointed out that there were lawyers standing up for people called before the investigating committees, lawyers who were reminding our Congress that we have a First Amendment guaranteeing us the right to think, speak, and write as we believe and not as a big-brother government tells us is the right way to think, speak, and write and also that we have a privilege against self-incrimination.
So reading about what those lawyers were doing, I got the idea that being a lawyer was a pretty nifty thing. I hoped that I could get a paying job, but also spend my time trying to make things a little better in the communities in which I lived.
Amanda Tyler: Now, something else happened when you were at Cornell. You met a certain handsome member of the golf team named Marty Ginsburg. So what was different about him as opposed to some of the other guys on campus?
Ruth Bader Ginsburg: Marty was the first boy I ever dated who cared that I had a brain, and we started out as best friends. Marty had a girlfriend at Smith College, and I had a boyfriend at Columbia Law School.
But there was a long, cold week in Ithaca, and Marty had a gray Chevrolet. We would go to the movies together. We’d go to the college and speak about anything and everything. And then it dawned on me after not too long that Marty was ever so much smarter than my boyfriend at Columbia Law School.
Amanda Tyler: So I don’t want to say anything and get myself in trouble with my former colleagues and one in particular who’s now the dean of Columbia Law School, so I’m going to just move right on. Now, as I understand things, together, you decided that you would pick a profession in the same profession.
Ruth Bader Ginsburg: Yes.
Amanda Tyler: How did you wind up going to law when Marty entered the picture and you were debating this?
Ruth Bader Ginsburg: Early on, medical school was eliminated, thank goodness for me, because the chemistry labs in the afternoon interfered with Marty’s golf practice. So then there were choices — business school, law school. For some reason, Marty wanted to go to Harvard. The Harvard Business School didn’t admit women in the 1950s. It wasn’t until the middle ’60s that they did, so that left law school.
Amanda Tyler: I think I can speak for a fair number of people when I say, “I’m really glad that’s where this wound up.” Now, Marty graduated a year ahead of you, and he went to Harvard and studied his first year of law school. And then after you graduated, you were married. I’m wondering, when you got married, did you receive any particularly useful marriage advice?
Ruth Bader Ginsburg: Oh yes, the best advice I’ve ever received, and it came from my mother-in-law. The day we were married, we were married in Marty’s home. And just before the ceremony, his mother said, “Ruth, I would like to tell you the secret of a happy marriage.” “Oh, I’d be delighted to know. What is it?”
“It helps every now and then to be a little deaf, so if an unkind or thoughtless word is spoken, you just tune out. You don’t hear it.” So that is advice I have followed that only in a marriage for 56 years, but also to this day in dealing with my colleagues.
[Laughter and applause]
Amanda Tyler: So following your marriage, you were off to Fort Sill where Marty had his military service. And during that time, you and Marty welcomed your daughter, Jane, and from there, you went together to Cambridge to study at Harvard Law School. And you were a year behind Marty. Now, how many women were there in your law school class?
Ruth Bader Ginsburg: There were nine women in a class of over 500. In fact, one of your professors was in my first-year class, Mel Eisenberg. And that number nine was a big jump from my husband’s class.
He was a year ahead of me. His class had five women. Harvard didn’t start admitting women to the law school until– ’50, ’51 was the first year, so I came in ’56.
Amanda Tyler: When you look today at the makeup of women in law schools among the law student populations and at a place like Berkeley, where I believe our current population is 60% women, does that make you happy?
Ruth Bader Ginsburg: Overjoyed, yes that at long last, women are welcomed at the bar and on the bench.
Amanda Tyler: So when you were in law school, you were also a mother, and you have said before that having Jane while you were in law school was not a burden, but was actually an advantage. Can you say something about that?
Ruth Bader Ginsburg: Everyone else tends to be consumed by their law studies. My life had balance. I went to class in the morning. I wasted no time. I studied in between classes, but then at 4 o’clock when the babysitter left, that was Jane’s time.
We went to the park. We played silly games. Each part of my life was a respite from the other. After an intense day at the law school, I was glad to have the children’s hours. And then when Jane went to bed, I was ready to go back to the books. But I think it was appreciation that there is more to life than law school that accounts for how I did.
Amanda Tyler: You are, without fail, the hardest-working person I have ever met, and I have often wondered whether your legendary work ethic derived from your law school years because, as many people know, Marty was diagnosed with cancer while you were in law school together. And I think it’s probably fair to say you were faced with rather extraordinary circumstances with all that you had on your respective plate. How did you manage everything during that period?
Ruth Bader Ginsburg: When Marty was diagnosed with a virulent cancer, there were precious few known survivors. He first had massive surgery, and in those days, I would take my classes in the morning. I had enlisted very good people to be note-takers in all of his classes. I would then go to Mass General, come home, and take care of Jane.
But then after his surgery, he had massive radiation for six weeks every day. And in those days, there was no chemotherapy. There was only radiation, and it wasn’t pinpointed.
So his routine was he would go to the radiation session, come home, get sick, fall asleep. He’d wake up about midnight, and between the hour of midnight till 2:00 in the morning, whatever he ingested for the day — well, maybe that was part of making Marty so eager to get me out of the kitchen. But in any event, he would then go over the notes that I had collected for him. And he would dictate to me his senior paper, which was on loss corporations. Tough subject, no doubt.
And then when he was well enough, he had private tutorials that his classmates would come to our apartment and bring Marty up to speed. He attended two weeks of classes that final semester, and he ended up with the highest grades he’d ever gotten in law school because he had the best teachers, his own classmates. But we just took each day as it came, and we were going to prevail. I think after those hard months, I decided that whatever came my way, I could handle it.
Amanda Tyler: When you look back, was there any silver lining to Marty getting sick so early in your family?
Ruth Bader Ginsburg: Well, one was — and I know now from my own personal experience — if you have survived cancer, you have a zest for life that you didn’t have before, that you count each day as a blessing.
Amanda Tyler: Now, because Marty graduated a year ahead of you and he accepted a job in New York, as everyone knows, you and Jane moved to New York with him. And you enrolled at Columbia Law School where you took your final year. You graduated tied first for your class, and finding a job– notwithstanding Harvard Law Review, Columbia Law Review, graduating with such honors, was very difficult. But you were able to get a clerkship, and one of your great mentors, professor Gerald Gunther, helped secure it, but he had to secure it under rather interesting terms. How did he do that?
Ruth Bader Ginsburg: I graduated from law school in 1959. There was no Title VII. There was no anti-discrimination in employment law, so employers were upfront about wanting no lady lawyers. Some of the sign-up sheets for interviews that were posted at Columbia said, men only. A very few firms were willing to take a chance on a woman, but no firm was ready to engage a mother.
So Gerry Gunther, who later became a distinguished professor at Stanford Law School, was determined that he would get me a clerkship, and he called every Second Circuit judge, every Eastern District of New York judge, every Southern District — and then he settled on one who had been a Columbia College graduate and a Columbia Law School graduate — always took his clerks from Columbia. And he said, Robert, my recommendation for you this year is Ruth Bader Ginsburg.
And the judge said, “Well, her record is good, and I’ve had women clerks. So that’s not a problem. But this is a difficult job, and sometimes, we have to work late at night, sometimes even on a Sunday. And I can’t risk she will be there when I need her.”
So Gunther gave the judge an offer he couldn’t refuse. He said, “Give her a chance, and if she doesn’t work out, there’s a young man in her class who was going to a downtown firm who will come in and take over.” That was the carrot. The stick was, “If you don’t give her a chance, I will never recommend another Columbia Law student to you.”
The huge challenge was to get your foot in the door, to get the first job. If you did, you usually did it at least as well as the men, so the second job wasn’t that same hurdle. I compare my experience with Justice O’Connor, who went to Stanford Law School, had very good grades. No one would hire her, so what did she do?
She volunteered to work for a county attorney free for four months. And her proposal was, if you think I’m worth it after four months, you can put me on the payroll. And that’s how Sandra got her first job in the law. It was that first job that was a high hurdle.
And I’ve often repeated Sandra’s comment. She said, “Suppose you and I had gone to law school in days when there was no barrier to women. Where would we be now?” Now we would be retired partners from some large law firm, but because we didn’t have that path available to us, we had to find a different one. And we both ended up on the U.S. Supreme Court.
Amanda Tyler: Now, professor Gunther must have been an incredible mentor to go to bat for you like that. He also testified, I should share with the audience, at your confirmation proceedings, comparing you to the great Judge Learned Hand. So that’s a nice compliment from one’s former professor, and I assume with his encouragement, you transitioned ultimately to join the legal academy. As we said, the justice was the 19th woman law professor in the country. Herma was the 15th.
I want to talk about the terms of your appointment at Rutgers. So you join the law faculty in 1963. This is an important year because it’s the year that the Equal Pay Act became law, and so it was no longer legal to pay men and women differently for the same job. And yet you were paid differently than your male counterparts. Why was that?
Ruth Bader Ginsburg: The Equal Pay Act passed, but it didn’t sink in. And when the good dean at Rutgers — and he was a very good dean — told me I would have to take a substantial cut in pay, I said, I expected that. And I knew that Rutgers was part of a state university and didn’t have a large budget.
But when he told me how much, I was taken aback, and I asked how much a man who had about my same years in law school, same experience after, was paid. The dean’s answer was rude. He has a wife and two children to support. You have a husband who has a good-paying job with a New York law firm. That’s the way the thinking was.
But the women at Rutgers Newark, the women in the entire university campus there, began an equal-pay suit. And after some years, the suit was settled in 1969. The lowest increase that any woman got was $6,000, which in those days was a lot more than it is today. But it took a while for employers, including academic employers, to appreciate, first, that the Equal Pay Act was law and then that Title VII really did prohibit gender-based discrimination.
Amanda Tyler: On that note, I’ve wanted to ask you about what happened in your second year of teaching at Rutgers when you found yourself on a year-to-year contract. You did not yet have tenure, and you were pregnant with your second child, your son, James — weren’t a lot of women around, and there presumably weren’t maternity-leave policies and the sort of things we take for granted today. How did you navigate that?
Ruth Bader Ginsburg: I didn’t tell my colleagues that I was pregnant, and for the last two months of the semester, I wore my mother-in-law’s clothes, who’s one size larger. And then with contract in hand, I told them, when I come back for the fall semester, there’ll be a new member of our family.
But that experience that I had led me — the first gender-based discrimination cases I handle were on behalf of pregnant public school teachers. There was what was euphemistically called “maternity leave.” Maternity leave was unpaid, and there was no guaranteed right of return. Women were asked to leave the classroom when their pregnancy began to show because we mustn’t have the little children think that their teachers swallowed a watermelon. These are women who wanted to do a day’s work for a day’s pay and were perfectly capable of remaining in the classroom.
So it was my own experience that led me to realize discrimination on the basis of pregnancy is discrimination on the basis of sex. It took a while for the Supreme Court. The first cases that came to the Supreme Court — the Supreme Court said, “Well, it can’t be sex-based discrimination because the world is divided into two categories of people. There are non-pregnant people. That includes women as well as men. But then there are these pregnant people, and they are only women. So there’s no male comparator, so it can’t be…”
Well, when the Supreme Court made that mistake twice, first under the Constitution, then under Title VII, there was a huge lobbying campaign with people from all sides of the political spectrum, and Congress passed a law that was the soul of simplicity that said what the law meant all along. The amendment was, discrimination on the basis of pregnancy is discrimination on the basis of sex.
Amanda Tyler: So I want to talk shortly about your litigating career. I do have a question I want to ask you. You were teaching law, and you know the curriculum of the law schools well. As you look back and you think about the first-year curriculum in particular, was there any particular class that was especially helpful to you when you later litigated all those important cases?
Ruth Bader Ginsburg: Far and above any other class in law school, it was my first-year civil procedures course. I was skilled at navigating my way through the federal court.
Amanda Tyler: I had a feeling you might say that. Now, you were recruited away from Rutgers to Columbia Law School in 1972, as we’ve heard, as their first tenured law professor. And that timing is important because it is the year that Title VII became applicable, finally, to higher educational institutions.
By this time, you were litigating. You had started this litigating. And so you’re teaching. You’re raising two children. You’re litigating path-breaking cases, and you’re doing all this at a time when I think it’s fair to say, based on everything you’ve said and everything we know, that society wasn’t especially supportive of working women.
And so I wanted to ask you, because one of the leading questions I get from my students in office hours is, how do you make it work? How do you find this work-life balance? And in particular, I get a lot of questions from my students about how they can enter this extremely demanding profession and also raise a family. And I wonder if you have any advice from your experience on that.
Ruth Bader Ginsburg: Uh-huh. My number one advice is choose a partner in life who thinks that your work is as important as his.
And Marty was always my biggest booster, and he also wanted to be an equal partner in parenting. He had an idea that a child’s personality was formed in her first year of life, so even in the days we were at Fort Sill, Marty was a very caring parent to our daughter.
Amanda Tyler: He once said, “I have been supportive of my wife since the beginning of time, and she has been supportive of me. It’s not sacrifice. It’s family. And I think that’s pretty special.” He was also legendarily funny, and I’m sure that that kept you on your toes a little bit over the years.
Ruth Bader Ginsburg: Yes, Marty had a wonderful sense of humor. One typical example, when I was a brand new judge on the U.S. Court of Appeals for the DC Circuit, I was introduced at receptions as Judge Ginsburg. As often as not, the hand would go out to Marty, and he would reply, “She is Judge Ginsburg. I’m still hopeful.”
At the time, it was just after the court decided Bush v. Gore, and we were attending theater in New York. When I came back from intermission, everyone stood up and applauded. And Marty said, “Oh, I forgot to tell you, there’s a tax lawyers convention in town.”
Amanda Tyler: Now, Marty was so important for so many reasons in your life, but not the least of which is he handed you the tax court sheets that led to that first case in a series of cases.
Moritz, and that case wound up proving to be a goldmine. It was over a $600 deduction. The two of you litigated it together. Ultimately, you prevailed in the Tenth Circuit, and a lot of this is told in a recent movie, On the Basis of Sex, that it…
Ruth Bader Ginsburg: The movie, by the way — the script was written by my nephew, and I asked him, why did you pick the Moritz case because it didn’t go to the Supreme Court? And he said he wanted to tell the story of a marriage as much as the story of the development of a legal strategy.
So Charles E. Moritz had a mother. He took good care of her, though she was 93. He was a book salesman, and in order to work, he hired a nurse to take care of his mother.
At the time the tax code gave a deduction — $600, not a whole lot — to a person who took care of a child, an elderly parent, an infirm relative of any age. The deduction was available to any woman or any married or divorced man. Charles E. Moritz was a never-married man, so he didn’t fit.
He argued his own case in the tax court. He filed a brief that was the soul of simplicity. It said, if I were a dutiful daughter, I would get this deduction. I am a dutiful son. It should make no difference.
Amanda Tyler: I once read something that Marty wrote about this — or maybe it was a speech — in which he said it was the best legal brief he ever read. So this case was so important because it didn’t go to the Supreme Court, but the government tried to take it to the Supreme Court. And they did something in their briefing that was very helpful to you as you launched the Women’s Rights Project.
Ruth Bader Ginsburg: Yes, Congress had already amended the law so any person could get the deduction, so there was no continuing problem. But the government urged the Supreme Court to take the case nonetheless because the Tenth Circuit decision casts a cloud of unconstitutionality on dozens of federal statutes. Now, these were pre-computer days, but the Defense Department computer did provide every single provision of the U.S. code that differentiated on the basis of sex.
So there it was, right out in front of us, all the laws that needed to be changed or eliminated through legislation if you could do it, if not, through litigation. So it was our road map. It was a pearl beyond price to have that list of federal statutes that differentiated on the basis of gender.
And most of them fit in with the way the laws were operating at the time. That is, man was considered the breadwinner, and a spouse would get benefits as a dependent. If a woman was the breadwinner, there were no benefits for her spouse because women were considered, at best, pin-money earners. Their main job was home and family life, the man winning bread to support the family.
What we needed to do was to break down that separate spheres notion and have Congress use neutral terms — wage-earner, not male — and the same for childcare. One of my favorite cases was the Wisenfeld case. It was a man whose wife died in childbirth. Congress had provided for benefits for a widow who has the care of a young child, but not for a widower.
So my client, Stephen Wisenfeld, was bound and determined not to work full time till his child was in school full time, and he thought that with the social security benefits and the earnings said he could make and still keep the benefits, he would have enough to take care of himself and his son. But those benefits were available only to widows, not widowers.
The Supreme Court was a little puzzled by that case. They reached a unanimous judgment, but there were three reasons. Justice Brennan, who wrote for the majority, said Stephen Wisenfeld is feeling the harm, but the discrimination was against his wife as wage-earner. She paid the same social security taxes as a man, but she doesn’t get the same protection for her family.
A few of them thought it was discrimination against the male as parent because the male parent wouldn’t even have the opportunity to care personally for his child. He would have to work full time to support the family.
Then there was one, who later became my chief. He was then Justice Rehnquist. He said, this is utterly irrational from the point of view of the baby. Why should the baby have care of a sole surviving parent if that parent is female, but not if the parent is male? So the court was getting the message. Congress was, too, and this separate spheres mentality was passe.
Amanda Tyler: So I was researching about you and Herma for this event, and you wrote some years before that in the foreword to your book that although men historically have gained the greater share of power and prestige, they are no less trapped in their assigned roles. So it was as though you foresaw that this was going to be a good path for litigation to finally have the justices understand and see discrimination.
That being said, as you look back on your arguments, there are two arguments in which you spoke for over 10 minutes uninterrupted. Putting aside that that would never happen on the Supreme Court today, why was that? Was it because it was hard to convince them?
Ruth Bader Ginsburg: I was puzzled. The first argument was Frontiero against Richardson. I wondered, “Are they just indulging me because they don’t think I have anything worthwhile to say, or are they really listening?” I’m beginning to think in a new way that in that argument, and I wanted to do something attention-grabbing, so I quoted from Sarah Grimké, who was a great abolitionist and feminist. I quoted her line, “I ask no favor for our sex. All I ask of our brethren is that they take their feet from off our necks.”
But I think the prevailing notion among judges was that women were favorites of the law. For example, many states didn’t put women on juries, or they gave them an automatic exemption. My state, New York, had an exemption for a woman.
I tried to point out that that kind of favor says something about how the society views women. That is, men have to serve. It’s obligatory, but the women are expendable.
And if you’re a citizen, you have obligations as well as rights. One is to vote. Another is to serve on juries, and to exempt women was demeaning in the sense that the society didn’t need women to participate in the administration of justice.
Or take Goesaert against Cleary, a 1948 case. During World War II when men were off fighting in the war, women began to occupy fields that had up till then been reserved for men, and one popular field for women was bartending. When the war is over, the state of Michigan passes a law saying, a woman may not tend bar unless she is the wife or the daughter of the male tavern owner.
The plaintiff in the case was Goesaert. Goesaert was a woman who owned a bar. Her daughter was a bartender. This law would have put them immediately out of business.
And the Supreme Court opinion upholding the law said, this is protective of women. Bars are unpleasant places. There’s a lot of rowdy people there, and we need to spare women from that, never, never acknowledging that the prohibition was only on the bartender who was behind the bar. Bar maids could take the drinks to the rowdy men, and that was OK.
But it was to get the court to understand that what was once thought of as protections — well, as Justice Brennan put it so well — the pedestal on which women are thought to stand more often turns out to be a cage that confines from contributing to society in any way that their talent allowed them to contribute. So we’re getting them to understand that women were not the favorites of the law, that they were hemmed in by these restrictions.
Another one: Women couldn’t serve tables at night. Well, at night is when you get the best tips. It was getting them to understand that these protections were protecting men’s jobs against women’s competition.
Amanda Tyler: So you accomplished so much as an advocate, and you’ve also done a great deal as a justice. When you sit down and you look at the progress that has been made on gender discrimination over the course of your lifetime and you look ahead, what work do you think remains to be done?
Ruth Bader Ginsburg: In the ’70s, our mission was to get rid of the explicit gender-based classification, and that job was almost completed by the end of the decade. What remained and is hard to get at is unconscious bias.
And my best example of that is the symphony orchestra. A well-known music critic for the New York Times, Howard Taubman, said, “Blindfold me, and I can tell you if it’s a woman playing the piano or a man” — or same for the violin. So they decided, some people — some of his colleagues decided to put him to the test.
So they blindfolded him, had people play, and he was all mixed up. He said it was a man when it was a woman. And he came to understand that, yes, he saw a woman sitting down at the piano, and he had a lesser expectation of what she would be.
A Title VII case brought in the ’70s is also a good illustration. It was brought against AT&T by women who were disproportionately kept out of middle-management jobs. And women did as well as the men on all the criteria, except the very last one, which they called “the total person test.” The total person test is the interviewer sitting down with candidate for promotion, and that’s where women dropped out.
Why? Not because the interviewer was hell-bent on keeping women out of those jobs, but because he felt a certain discomfort dealing with someone who was not like himself. He’s confronting a white male. He has a comfort level.
If he is confronting someone of another race or a woman, he’s kind of uncomfortable. He doesn’t really know how this person ticks, and that discomfort is reflected in his giving the woman a lower rating.
There was an wonderful case in the European Court of Justice on this point of unconscious bias. It involved a certain province in Germany that had a rule for government jobs. If there are two people of roughly equal qualifications, prefer the woman. That was challenged as in violation of the equality provision of the Rome Treaty, the principal treaty that started the European Union.
But between the lines, you could see what the court is appreciating, that it may not be a preference for the woman. It may be just overcoming the unconscious bias that she would encounter when the employer had a choice between a woman and a man.
So unconscious bias is a problem. Now, I’m delighted today when I go to a concert and I see women all over the orchestra, and women are emerging as conductors. In my growing-up years, that was beyond imagining.
Amanda Tyler: So I want to jump ahead. We’re rapidly running out of time. My students, normally — if it were just me up here — would complain and say, “You’re going over, professor Tyler.” I think this is one day where they might not complain if I go a little bit over.
President Carter put you on the DC Circuit in 1980, and then in 1993, while Herma Hill Kay was dean of Berkeley Law, you were put on the Supreme Court. So in what little time we have left, I want to ask you a couple of questions about your time on the Supreme Court.
Now, you’re starting your 27th term this month on the Supreme Court, and I know you’re just getting warmed up. But after 26 years, I wonder whether you look back and you take stock of some of the things that have happened. And in particular, I wonder whether there’s one opinion that you wrote of which are most proud.
Ruth Bader Ginsburg: That’s a little like, of my four grandchildren and two step-grandchildren and one great-grandchild, which one do I love the most? But there are some opinions that stand out. One is the VMI case, and Marty’s comment about that was, “Well, it took you 20 years to win the Vorchheimer case, but you finally did.”
So what was Vorchheimer? There were two high schools in Philadelphia for gifted children. One was called Central High School, and the other Girls High. Central had better math and science facilities, infinitely better playing fields.
When that case came to the Supreme Court — the district court had held in favor of the plaintiff. The Court of Appeals reversed 2 to 1 so that the tally was 2 to 2. And then the Supreme Court affirmed the Third Circuit’s wrong decision by an equally divided court.
VMI was the same kind of case. The state of Virginia was making an opportunity available to men that was not available to women. I would sometimes ask, “Well, what woman would want to go to VMI and go through that rigorous training and the rat line?” And I said, “Well, I wouldn’t. Probably, you wouldn’t either, but there are women who want to go to VMI and meet all the qualifications. The state can’t leave them out.”
VMI decision is now, it was a couple of years ago to celebrate the 25th anniversary of that decision. They are so proud of their women cadets who want to be engineers, nuclear scientists. They like being exposed to the same rigorous training.
They live in the same spartan quarters that the men do. And the commander is so pleased with the change in the school. For one thing, they were able to upgrade their applicant pool by including women.
And another case that I love — so some of my favorite opinions are dissents — is Lilly Ledbetter’s case. Lilly Ledbetter was an area manager for a Goodyear Tire plant. She was one of the first women hired for that position.
One day, she found in her mailbox a slip of paper with a series of numbers, and she immediately recognized what those numbers meant. The numbers were the pay of all the area managers, and Lilly Ledbetter saw that she was being paid less than the young man that she had trained to do the job.
So she said, “I’ve had it. I’ve heard about Title VII. I’ll sue.”
She prevailed in the district court. She got a sizable jury verdict. When the case came to the Supreme Court, they said, Lilly Ledbetter sued too late. Title VII requires that you file a complaint with the Equal Employment Opportunity Commission within 180 days of the discriminatory incident. And Lilly Ledbetter, you’ve been working there a dozen years. You’re way out of time.
I tried to make the point that what would have happened if Lilly Ledbetter did sue early on. Well, first, the employer didn’t give out pay figures, so how would she know? But assuming she did, the defense inevitably would have been, “She just doesn’t do the job as well as the men. That’s why we pay her less.”
But then she’s working there a dozen years, and she’s getting good performance ratings by the employer. So that defense that she doesn’t do the job as well is off the page.
The first woman in a field that has been dominated by men doesn’t want to be seen as a troublemaker. She doesn’t want to rock the boat. What about the 180-day limit? Well, every paycheck Lilly Ledbetter received incorporated that discrimination, so in my view a suit within 180 days of her most recent paycheck is timely.
The tagline of my dissent in her case was, “The ball is now in Congress’s court to correct the error into which my colleagues have fallen.” And in very short order, with overwhelming majorities — Republicans as well as Democrats — Congress amended the law to adopt the paycheck theory. And it was the first piece of legislation that President Obama signed when he took office.
Amanda Tyler: Justice, I could sit here and do this all day, but I suppose at some point we have to stop. And unfortunately, I think we’re at time. So I wanted to close by saying thank you and by bringing someone back into the conversation who’s been looming large and beautifully over us as we’ve spoken, Herma Hill Kay.
Her legacy here at UC Berkeley is wonderful and longstanding, and this is the first of many events that will honor her and keep that legacy alive. I thought that the best way to conclude would be to bring her back into the conversation through her words and specifically by quoting from her testimony at your confirmation proceedings.
So in 1993, when then dean of Berkeley Law, Herma Hill Kay, appeared before the Senate Judiciary Committee, she said that President Clinton’s choice of you was wise and inspired, and she testified that you think deeply and choose your words with care. She continued, “I can tell you that her compassion is as deep as her mind is brilliant. In Ruth Bader Ginsburg, the president has offered the country a justice worthy of the title.” I couldn’t have said it better myself.
Justice, it has been such a privilege to be up here with you today, honoring Herma Hill Kay on behalf of UC Berkeley. Thank you for being with us today.