As the second woman to serve on the Supreme Court, Justice Ruth Bader Ginsburg often fields questions about gender and justice. In the second half of her wide-ranging interview with Takeaway host John Hockenberry, Justice Ginsburg begins with a thought-provoking comment regarding Roe v. Wade, the 1973 case that legalized abortion in the United States and recognized a right to privacy in the Constitution.
Justice Ginsburg notes Justice Sandra Day O'Connor's decision in the 1992 case Planned Parenthood v. Casey, and says, "The Casey decision had a very different tone. It centered on the woman, not on the doctor-patient relationship, and it isn't divided into trimesters. So I think looking back from that decision we can say yes, if Justice O’Connor had been on [the 1973] Court maybe she would have influenced the way the decision was explained."
Many of the cases Justice Ginsburg litigated as an attorney at the American Civil Liberties Union in the 1970s related to gender discrimination, an expertise that Ginsburg likely relied upon in her dissent in the 2007 case Lilly Ledbetter v. Goodyear Tire Company. The case centered on whether gender discrimination played a role in Ledbetter consistently receiving lower pay than her male counterparts at Goodyear.
Ginsburg famously read her dissent from the bench in that case, a practice that she says serves to "alert the public: this is something to be worried about." Her dissent ended with an invitation to Congress, asking the legislative branch to amend the law so, as she saw it, the Court would fully understand that Lilly Ledbetter deserved her back pay in full.
Her invitation to Congress, she tells John Hockenberry, was "quite different" from Chief Justice John Roberts's opinion in Shelby County v. Holder. In the Ledbetter case "it was very easy to fix the law, to make clear that Title VII meant what Lilly Ledbetter said it meant all along. That change, legislative change, was just informing the Court: you got it wrong."
"It’s quite different from the Voting Rights Act," she continued. "The Chief’s opinion for the majority was that Congress got it wrong when it renewed the Act and thinking that it could renew it without changing the coverage formula."
Immigration: In 'Congress's Lap'
As for what the Ledbetter case, and the legislation that addressed it, says about the future of the workplace discrimination, Justice Ginsburg notes that undocumented workers face a particularly difficult set of circumstances on the job.
Undocumented immigrants, Justice Ginsburg notes, "unfortunately are not protected by the law and they are tremendously subjected to exploitation. The result is that they would be willing to work for a wage that no person who is welcome in our shores would take. I think the answer to that problem is in Congress’s lap."
Justice Ginsburg continues, "People who have been hardworking, tax paying, those people ought to be given an opportunity to be on a track that leads towards citizenship. So I think it’s different than the Lilly Ledbetter case. Lilly wasn’t willing to work for less than her male peers; she just didn't know she was being paid less."
Second Amendment 'Outdated'
In the wake of the Colorado recall election and a fierce, nationwide debate over gun rights and gun control, Justice Ginsburg also comments on the past, present and future of the Second Amendment. She cites her dissent in District of Columbia v. Heller, and says her "view of the Second Amendment is one based on history."
She continues, "The Second Amendment has a preamble about the need for a militia...Historically, the new government had no money to pay for an army, so they relied on the state militias. And the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."
But, Justice Ginsburg explains, "When we no longer need people to keep muskets in their home, then the Second Amendment has no function, its function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own. So I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So...the Second Amendment is outdated in the sense that its function has become obsolete."
As for the Heller case, decided by the Court in 2008, Justice Ginsburg says, "If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation."
A Personal Story
Finally, Justice Ginsburg discusses her late husband, the tax attorney and Georgetown Law professor Marty Ginsburg.
"I have a daughter who is now 58, but when she was about [15 years old], she noticed a big difference between daddy’s cooking and mommy’s cooking. Up until then I was the everyday cook. Marty cooked on weekends and whenever we had company," she says.
"So my daughter, who generally loves good food, gave him sole command of the kitchen," Justice Ginsburg continues. "And so for all the years I've lived in D.C., and now it’s over 30, I have never cooked a meal. When Marty died, Jane took it upon herself to come every month, spend one day with me, spend the whole day cooking, and fill my freezer with individual dinners, and so I continue to be very well-fed."