The archival materials needed to complete this project were obtained from a wide variety of sources, beginning with the ACLU File, 1967–80, the Speeches and Writings File, which documents Ginsburg’s endeavors to promote women’s rights. The Miscellany File constitutes Part I of the Ruth Bader Ginsburg Papers located in the Manuscript Division of the Library of Congress, from which the case files especially proved indispensable. Ginsburg’s personal papers have subsequently been added to the collection, though they are not yet open to the public. Neither is material pertaining to the years 1979–92, when she served as judge on the U.S. Court of Appeals for the D.C. Circuit. Papers from her tenure as associate justice of the Supreme Court (1993– ) will not be available to researchers until a hundred years after the last justice with whom she has served is no longer alive.
Justice Ginsburg graciously provided me with access to transcripts of three extensive interviews not yet accessible to the public. The first, conducted by Maeva Marcus (Supreme Court historian), was recorded for the Court in 1995; the second, done by Ronald J. Grele for the Columbia University Oral History Project, was completed in 2004; the third, conducted for Sarah Wilson in 1995, resides at the Federal Judicial Center. Although there is some overlap, these three interviews cover different aspects of Ginsburg’s life and work prior to her move to the Supreme Court. Wilson’s interview for the Federal Judicial Center concentrates primarily on Ginsburg’s nomination to and early service on the U.S. Court of Appeals for the D.C. Circuit.
These interviews, plus my own with the justice, as well as members of her immediate family, her law school classmates, her former colleagues at Rutgers Law School in Newark, her ACLU associates, her former law students at Columbia, and her clerks at the U.S. Court of Appeals for the D.C. Circuit helped provide key material for the earlier sections of this book, along with the ACLU case files and related material. So, too, did “The Birthday Book,” a collection of letters solicited by her clerks from friends for her fiftieth birthday celebration. Each letter begins, “When I think of Ruth Bader Ginsburg…” Collectively, they provided choice bits of information that I would not otherwise have obtained.
The late judge Richard Salzman offered recollections of his schoolmate Kiki Bader, including her early writing in their elementary school newspaper that his mother had saved. My account of Ginsburg’s college experience was enriched by interviews and correspondence with friends from her freshman year at Cornell and by material at the Cornell University Library. Her intense interest in the impact of McCarthyism on civil liberties was fostered by research she undertook for one of her professors and also by the experience of two faculty members who were targeted by anti-Communists. The ordeal of those two scientists was closely followed in The Cornell Daily Sun, the student newspaper. An undergraduate thesis written under the direction of the late historian Michael Kammen by Michael Ullmann—titled “Caught in a Crossfire: Deane Malott and Cornell During the McCarthy Era”—provided superb insight into the pressures brought to bear on Cornell’s president Malott. It also highlighted how Malott’s own conservative leanings affected his handling of the crisis. Ellen Schrecker’s finely researched history of the age of McCarthyism Many Are the Crimes superbly contextualizes events at Cornell.
In writing about Ginsburg’s legal education, I found the work of Neil Duxbury, William N. Eskridge Jr., Philip Frickey, and Laura Kalman especially helpful. Collectively, the work of these legal scholars substantially informed my understanding of jurisprudence, especially legal realism and, more important, process theory, which reigned during Ginsburg’s years in law school.
Interviews with the late Hans Smit of Columbia Law School provided a wonderful portrait of the justice as a young lawyer at work on the Columbia Law School’s Project on International Procedure. Eva Hanks offered a highly perceptive account of their experience together as faculty members at Rutgers Law School in Newark, New Jersey. The William J. McGill Papers at Columbia University’s Presidential Archive reveals interesting correspondence between McGill and Ginsburg as she offered McGill astute but unsought advice on how to respond to the gender wars then raging on the Columbia campus.
That Ginsburg had already become part of legal feminists’ efforts to reshape federal statutes and constitutional jurisprudence, and the legal profession itself, is evident from the papers of Dorothy Kenyon at Smith College as well as the papers of Catherine East, Mary Eastwood, and most especially Pauli Murray at the Schlesinger Library at Harvard University. Studies fleshing out this effort include Fred Strebeigh’s compelling account Equal. Serena Mayeri’s prizewinning Reasoning from Race, Linda Greenhouse and Reva B. Siegel’s Before Roe v. Wade, and David Garrow’s voluminously detailed Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade all proved essential. Rosalind Rosenberg’s newly published biography of Pauli Murray, Jane Crow, belongs on this list.
In writing about the ACLU years, I found useful Austin Sarat and Stuart Scheingold’s articulation of “cause lawyering as a protean and heterogeneous enterprise that continues to reinvent itself in confrontation with a vast array of challenges.” Steven M. Teles and Ann Southworth also enhanced my familiarity with the conservative legal movement’s counterthrust.
Of varying usefulness are the papers of justices before whom Ginsburg argued her cases. Justices William Brennan, William O. Douglas, Thurgood Marshall, and Harry A. Blackmun deposited their papers in the Manuscript Division of the Library of Congress. Those of Justice Lewis F. Powell reside at the Law School of Washington and Lee University. Biographies of each of the justices help understand how they responded to Ginsburg’s litigation, most notably Linda Greenhouse’s Becoming Justice Blackmun.
Ginsburg’s transition from advocate to judge and justice draws on interviews with Barbara Babcock, Sarah Weddington, and Patricia Wald, all of whom served in the Carter administration. Babcock and Weddington helped illuminate resistance within the Justice Department to Ginsburg’s eventual nomination to the U.S. Court of Appeals for the D.C. Circuit. Judge Wald, Professors Michael Klarman and Deborah Jones Merritt (both former clerks), and the Washington attorney Alan B. Morrison provided useful perspectives on Ginsburg’s years as a federal judge.
The Clinton Papers at the president’s library in Little Rock proved invaluable for understanding the vetting of top candidates for Justice Byron White’s seat on the Court as well as the advice that Clinton received. Included in the Clinton Papers are letters supporting and a few opposing Ginsburg’s candidacy. The Daniel P. Moynihan Papers in the Library of Congress’s Manuscript Division attest to the powerful New York senator’s role in securing the nomination for Ginsburg. Both press accounts and my own interviews with the justice reveal the considerable efforts of Martin D. Ginsburg on his wife’s behalf. So, too, does Robert Katzmann’s essay “Reflections on the Confirmation Journey of Ruth Bader Ginsburg, Summer, 1993,” in Scott Dodson’s Legacy of Ruth Bader Ginsburg.
My understanding of the rights revolution, selection of federal judges, the Supreme Court nomination process, the influence of oral argument, the evolving role of clerks, judicial behavior, strategy and constraints, the interplay of social movements, politics, and constitutional change, and popular constitutionalism has been shaped by political scientists and legal scholars. Among the political scientists are Charles R. Epp, Lee Epstein, Lawrence Baum, Michael A. Bailey, Forrest Maltzman, James F. Spriggs II, Paul J. Wahlbeck, Sheldon Goldman, Saul Brenner, Sally Kenney, Nancy Maveety, Jeffrey A. Segal, Howard Gillman, and Richard Davis. A number of distinguished legal scholars whose work has furthered my education include Lucas Powe, Laurence Tribe, Mark Tushnet, Robert Post, Kenneth Karst, Cass Sunstein, Richard Posner, Jack Balkin, Barry Friedman, Michael Klarman, and Kenji Yoshino.
The work of feminist legal scholars has been absolutely indispensable, especially that of Reva Siegel. It was Siegel who first alerted me to how rights, seemingly achieved, have been repeatedly undercut and transformed. Herma Hill Kay, Catharine A. MacKinnon, Sylvia Law, Elizabeth M. Schneider, the late Rhonda Copelon, Kimberlé Crenshaw, Katharine Bartlett, Mary Anne Case, Lani Guinier, Martha Minow, Nina Pillard (now judge Cornelia T. L. Pillard), Neil S. Siegel, Joan C. Williams, Martha Chamallas, Deborah L. Rhode, Cynthia Grant Bowman, Serena Mayeri, Kristin Collins, Cary Franklin, and Linda Kerber all contributed to my understanding of aspects of Ginsburg’s work as law professor, advocate, judge, and justice.
I have also benefited greatly from the work of legal journalists, specifically the books, columns, and reports of Linda Greenhouse, Jeffrey Toobin, Adam Liptak, David Cole, Jeffrey Rosen, Joan Biskupic, Marcia Coyle, Jan Crawford Greenburg, Robert Barnes, David Savage, Nina Totenberg, Dahlia Lithwick, Tony Mauro, and Lyle Denniston. Among the many journalists upon whose work I relied are David Von Drehle, Lesley Oelsner, David Margolick, Jim Rutenberg, Michael Tomasky, Emily Bazelon, Ari Berman, Amy Davidson, Elizabeth Drew, and Matt Flegenheimer.
Ginsburg has written extensively about her ACLU cases, the ERA, affirmative action for women, and related matters in legal journals, especially during the 1970s. Her recently published collection of writings, My Own Words, ably introduced by the editors Mary Hartnett and Wendy Williams, includes selections that vary from school newspaper editorials to bench remarks on recent cases.
Other books with helpful portions on Ginsburg’s early career include Janis M. Berry et al., Women Lawyers at Work, Lynn Gilbert and Gaylen Moore, Particular Passions, and Rosalind Rosenberg, Changing the Subject. Amy Leigh Campbell’s Raising the Bar chronicles the ACLU years. Irin Carmon and Shana Knizhnik’s Notorious RBG: The Life and Times of Ruth Bader Ginsburg is a lighthearted, wonderfully illustrated account of the justice and her emergence as a celebrity among millennials. Linda Hirshman’s Sisters in Law, a dual biography of Sandra Day O’Connor and Ginsburg, offers a compelling account of how these very different women complemented each other in advancing gender equality on the Court. Scott Dodson’s Legacy of Ruth Bader Ginsburg offers valuable and diverse perspectives from scholars and court watchers on various periods in Ginsburg’s life and the array of doctrinal areas on which she exerted influence over the course of her long career.
In writing about cases in which Ginsburg participated as lawyer, advocate, judge, or justice, I have relied on the abundant literature produced by historians and social scientists for background material. Nowhere was this literature more valuable than in my chapters on race and on sexuality, as endnotes indicate. Cases figuring prominently in the book are listed below.