Analysis: 20 years of closed-door conversations with Ruth Bader Ginsburg

 edition.cnn.com  09/19/2020 04:07:05 

"There is no man, no woman, who has it all," she remarked in one interview with me as we sat in her oak-paneled chambers filled with contemporary art. "Life just isn't that way."

For nearly two decades, Ginsburg permitted me to visit her private office to gather information for books I wrote about the Supreme Court and for my daily journalism work. Justices rarely open their doors to reporters, and I never took these sessions for granted. The nine members of the bench operate behind layers of security and a desire for secrecy as they decide the law of the land. Some justices go to great lengths to control their public images.

But Ginsburg was generous with the time she gave me, and she became more open over the years. She spoke most readily about the women's rights issues that brought her national attention as an American Civil Liberties Union advocate in the 1970s. In time, she offered thoughts on other legal issues, the political dilemmas of the day and her personal dealings with her colleagues.

Our most politically charged conversation came in July 2016, when I asked her if she had had second thoughts about her quips on possibly moving to New Zealand if Donald Trump won the presidency. Her remarks, which had been published by other news organizations before my visit, were drawing criticism for breaching judicial temperament.

Rather than back down, Ginsburg escalated. "He's a faker," she told me. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego." This criticism of Trump, published on CNN, ratcheted up complaints from the right and left that she had violated judicial decorum by expressing her views on the presidential race. Candidate Trump called on her to resign. "Her mind is shot," he declared on Twitter.

A few days later, Ginsburg issued a statement saying she regretted speaking so candidly.

Ruth Bader Ginsburg's most notable Supreme Court decisions and dissents

About a year ago, in August 2019, following her fourth cancer ordeal, we were on the same plane as she traveled to Buffalo, New York, for her first appearance after undergoing radiation for newly discovered pancreatic cancer. Waiting for takeoff, she worked on a draft of the speech she was to deliver.

She had just completed radiation treatment but did not want to cancel the commitment. The old friend who had persuaded her to schedule the University of Buffalo visits had recently died. Ginsburg did not want to pull out because of her own health problems. Within weeks that fall, she followed up with scheduled appearances in Washington; New York; Little Rock, Arkansas; Raleigh, North Carolina; and Chicago.

Ginsburg wanted to stay in the public eye as much as possible. A little over a decade earlier, when she was being treated for her first occurrence of pancreatic cancer, she explained the importance of being visible. In the middle of difficult radiation treatment, she chose to attend Obama's address to a joint session of Congress. At the time, February 2009, she was the lone female justice on the bench.

"First, I wanted people to see that the Supreme Court isn't all male," Ginsburg told me afterward. "I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months." (She was referring to the late Sen. Jim Bunning, a Kentucky Republican who had predicted her cancer was so serious it likely would kill her.)

Ginsburg possessed a cheeky humor but was never brazen. She spoke slowly, with long pauses between sentences. In her chambers, bookshelves and tables were filled with family photos and mementos of her legal milestones, which included arguing six cases before the Supreme Court as a women's rights lawyer.

She used a special cupboard for the elaborate collars and jabots she wore over her black robe. Off the bench, she dressed in colorful designer dresses, jackets and shawls. She enjoyed fashion and sometimes talked about the boutiques she had visited in her travels.

As a lawyer and justice, Ginsburg was exacting. She also admitted when she was wrong. And as a working mother, she never presented herself as perfect.

When daughter Jane was born in 1955, Ginsburg said she was afraid to pick her up. "I was scared to death of her," she told me in a 2012 conversation. "My natural reaction to Jane was that she would break."

It was during that interview that Ginsburg rejected the assertion of commentators who declared that men, but not women, could "have it all" in the realms of home and work.

Neither men nor women could have all they wanted, she said, at any one time in life. Ginsburg's mantra, instead, was: All in good time. "What you do appreciate at my distance," she said as she was nearing age 80, "is that the time during which child care is a major part of your life is relatively brief."

Learning from O'Connor; wanting to 'strangle' Scalia

My interviews with Ginsburg began two decades ago as I began researching a 2005 biography of Justice Sandra Day O'Connor, the first female justice. Ginsburg became the second woman on the bench, appointed by President Bill Clinton in 1993.

Ginsburg described how O'Connor had reacted when Ginsburg sought her advice regarding the first opinion then-Chief Justice William Rehnquist had assigned her to write. Usually the first assignment for a new justice is a relatively easy unanimous case, but Rehnquist gave Ginsburg a complicated pension dispute.

"Sandra, how can he do this to me?" Ginsburg said to O'Connor.

"Ruth, you just do it," O'Connor answered bluntly, "and get your opinion in circulation before he makes the next set of assignments."

As Ginsburg related the story, she said of the no-nonsense O'Connor: "That is so typical Sandra." O'Connor, who grew up on a ranch, exuded determination in all things. She had been an Arizona state legislator before becoming a judge and had the distinction of being the first female majority leader of any state Senate nationwide. Like Ginsburg, who raised two children, O'Connor managed her career and motherhood, with three sons.

But the women differed in style and legal substance, and Ginsburg sometimes marveled that she, a Brooklyn-born liberal, had forged a deep friendship on the bench with Arizona Republican O'Connor.

In our early interviews, Ginsburg spoke readily about Justice Antonin Scalia, another one of my book subjects. Ginsburg and "Nino" had become close when first serving together on the US Court of Appeals for the DC Circuit. They were ideological opposites but often exchanged drafts of opinions as they worked out arguments. They traveled together, shared a love for opera and celebrated New Year's Eve at an annual dinner with spouses.

As dear as Scalia was to Ginsburg, he became a thorn in the side of O'Connor. It perturbed him that the conservative Reagan appointee searched for a middle ground on the law. After O'Connor balked at striking down abortion rights in a 1989 case, he said her rationale "cannot be taken seriously."

Ginsburg told me, "Nino, in my view, sometimes does go overboard. It would be better if he dropped things like: 'This opinion is not to be taken seriously.' He might have been more influential here if he did not do that."

"I love him," she added of Scalia. "But sometimes I'd like to strangle him."

Actually, Ginsburg initially said she wanted to "wring his neck," but she quickly amended the phrase, perhaps thinking it sounded too aggressive. She often repeated her mother's adage that she should always act like a lady even as she spoke her own mind.

Scalia was a constant topic for us, particularly from 2006 to 2009, when I was focused on his biography. "There are few of us who have such confidence that we are right," she declared of Scalia's approach to the law and life.

During this period, Ginsburg was the only woman on the bench. O'Connor had retired in January 2006, and Sonia Sotomayor, the third female justice, did not join the high court until August 2009, appointed by Obama.

Ginsburg was missing O'Connor in these years, particularly during the justices' closed-door sessions known as "the conference," when they privately discuss which appeals to hear and how to rule on cases after oral arguments are held.

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"At the conference, she spoke long before I did," Ginsburg said, referring to O'Connor's seniority and the traditional order of the nine justices at the table. "She is not an on-the-one-hand, on-the-other hand person."

Ginsburg recalled that her own views were sometimes discounted in the justices' sessions, in the same vein as when she was a young lawyer. "I don't know how many meetings I attended in the '60s and the '70s, where I would say something, and I thought it was a pretty good idea. ... Then somebody else would say exactly what I said. Then people would become alert to it, respond to it."

"It can happen even in the conferences in the court," she continued in this spring 2009 interview, "when I will say something -- and I don't think I'm a confused speaker -- and it isn't until somebody else says it that everyone will focus on that point." Some of her male colleagues later told me they were surprised by her comments.

On occasion, readers questioned whether Ginsburg was trying to send a message to the other justices through me. I brushed off that suggestion. Ginsburg was able to speak her mind and skilled at persuasion. And she never knew for certain when anything she told me would be published.

One such incident occurred in spring 2009, when I wrote about Ginsburg's views of a then-pending case involving an eighth-grade girl who had been strip-searched for the drug ibuprofen at her Arizona school. I brought the dispute up with Ginsburg because of the frustration she had displayed at oral arguments when her colleagues minimized the girl's ordeal.

"They have never been a 13-year-old girl. It's a very sensitive age for a girl. I don't think that my colleagues, some of them, quite understood. ... Maybe a 13-year-old boy in a locker room doesn't have that same feeling about his body. But a girl who's just at the age where she is developing, whether or has developed a lot .... Or ... has not developed at all (might be) embarrassed about that."

In the end, the majority ruled in the case of Safford Unified School District v. Redding that the search was unreasonable under the Fourth Amendment.

Changes at the court

Over the past decade, Ginsburg's work and home life underwent significant changes. Most personally, her husband of 56 years, Martin, died after a struggle with cancer. "I miss Marty enormously," she later told me. "I think of him 100 times a day."

Ginsburg also became the leader of the left wing of the court in 2010, as Justice John Paul Stevens retired. She embraced that role, operating more strategically with her colleagues on the left and writing stronger dissents for that bloc. She said she felt a stronger sense of mission. "I know that's what he would have wanted," she said of Marty.
In 2010, Elena Kagan joined the court. "I like the idea that we're all over the bench," Ginsburg said of the three women on the nine-member court in 2011. "It says women are here to stay."
She also enjoyed watching Kagan spar rhetorically with Chief Justice John Roberts in the behind-the-scenes drafting process. Kagan "is just a delight," Ginsburg told me, "and very solid on substance."

She and Kagan, along with Justices Stephen Breyer and Sotomayor, were often in dissent as the conservative Roberts majority only became stronger. "We have really tried hard not to be splintered," she told me in 2013, "to give a solidity to the dissent.

Health and pressure to retire

After Ginsburg survived colorectal cancer in 1999 and the first bout with pancreatic cancer in 2009, her health became a major topic of public interest. I began following up on even minor incidents.

In summer 2012, Scalia told me she had slipped and fractured her ribs in the spring. So when I visited Ginsburg soon after my Scalia conversation, I asked how she was feeling. She downplayed the rib injury. She said there was nothing to do but work through the pain. It just so happened that the rib fracture occurred as she was navigating with her colleagues the difficult constitutional challenge to the Affordable Care Act.

The physical resilience of Ginsburg, then 79, continued to amaze me. When I went to see her at the close of the next year's session, in 2013, I offhandedly asked whether she had again fallen. I did not expect the answer I received.

"Yes, I fell," she said. "It was almost identical" to what had happened a year earlier. "I knew immediately what it was this time. They wanted to send me to ... the emergency room, and I said, no, absolutely not. ... There's nothing you could do. You just live on painkillers for awhile."

Ginsburg plowed through the vicissitudes of life and, as she reached 80, rebuffed retirement suggestions, particularly from liberals who wanted her to step down while a Democrat was in the White House.

In 2014, I received a tip that Obama had privately invited Ginsburg to lunch a few months earlier. I could not help but wonder whether Obama was exploring the possibility that she might soon retire. I asked the justice how their time together had gone.

"They've got a very good chef at the White House," Ginsburg began. "The problem for me is the President eats very fast. And I eat very slowly. I barely finished my first course when they brought the second. Then the President was done, and I realized that he had important things to do with his time."

Ginsburg rejected my questions about whether he might have been fishing for any sign, as they dined alone, of her retirement plans.

"I don't think he was fishing," she said.

When I asked why she thought he had invited her, she said, "Maybe to talk about the court. Maybe because he likes me. I like him."

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I raised the possibility that Obama might have been trying to send her a message, perhaps to encourage her to step down while he was still in office. She rejected that possibility and said flatly: "If the President invites you, probably a part of you says, 'Don't question it. Just go.'"

In these years, some liberals feared that if Ginsburg did not leave while Democrat Obama was in office, she might be forced due to illness to leave during a Republican presidency, which would bolster the conservative majority.

Ginsburg said it was unlikely that Obama would been able to win confirmation of another liberal, irrespective of timing. At one point in 2014, she asked me rhetorically, "So tell me who the President could have nominated this spring that you would rather see on the court than me?"

Less than two years later, it was Scalia who was suddenly gone. He died at a remote hunting lodge in Texas on a vacation.

"My first reaction was I was supposed to go first," Ginsburg later told me. "I'm three years older. My second thought was, well, we all have to go sometimes."

Referring to Scalia's apparently dying in his sleep, she said, "It's the best you can do."

The justice and I talked again in January 2018, at the Sundance Film Festival in Park City, Utah, when CNN Films premiered the Emmy-nominated documentary film "RBG." President Trump was beginning his second year in office and there was a chance he would soon have an appointment to the high court. But the subjects of our conversations were light, related to travel and family. She always asked about my daughter, who shared her passions for opera and theater.

In July 2019, Ginsburg spoke at Georgetown Law School about her life and career, and I moderated a panel afterward that featured women who had followed her path in the law and on the bench.

Many of Ginsburg's comments related to the balance she had struck with her husband to allow them both to pursue professional goals. She said she had concentrated on home and family when Marty was working long hours to become a partner at a law firm.

"Then it switched," she told the Georgetown Law audience, "when the women's movement came alive at the end of the '60s, and Marty realized that what I was doing was very important."

She described him as her "biggest booster," and he might not have surprised at the celebrity status she achieved, had he lived to see it, when the "Notorious RBG" meme first went viral in 2013.

A visit to talk about civil procedure

My last session with RBG in chambers occurred in January 2020. I asked if I could see her to discuss her interest in civil procedure, which dated to her law school days at Harvard and deepened as she compared the US and Swedish legal systems early in her legal career.

Civil procedure covers the rules for who can sue and when, and with what particular claims. I had noticed that Ginsburg seemed to be focused more on procedural flaws in cases, for example, that a claim was moot, perhaps as a way to blunt the effort by the court's five conservative justices to set new precedents on the merits of disputes.

It was during that interview that she told me she was in good health, "cancer free." She then quickly produced a sheet of paper that held a "favorite quote," from a 1943 case. "The history of liberty," Justice Felix Frankfurter wrote in McNabb v. US, "has largely been the history of observance of procedural safeguards."

She seemed delighted to have reason to recall her first civil procedure course at Harvard and her drive to volunteer as much as possible when the professor asked questions.

I told her that Scalia had once described her as "a tigress on civil procedure."

"She has done more to shape the law in this field than any other justice on this court," he had told me. "She will take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone."

"I wish he had listened to me more often," Ginsburg responded during our January conversation.

She shuddered as she recounted a 2011 case in which, she said, Scalia and other conservatives had "picked up" enough votes to deprive her of a majority on a civil procedure issue. Before that case, she told me, "I was really on a roll."

When I left her chambers, she was still clutching the Frankfurter quote. With her reminiscences of law school competition and high court rivalry, Ginsburg exuded an enduring youthfulness, along with the intensity of the modern "RBG."

Just a few months earlier I had watched her bask in the appreciation of audiences -- multiple standing ovations -- at the University of Buffalo.

Declared Ginsburg: "It was beyond my wildest imagination that I would one day become the 'Notorious RBG.'"

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