· CHAPTER 4 ·
Sailing in “Uncharted Waters”
A job offer should have been a foregone conclusion for a student tied for first place in the graduating class at Columbia Law School. Serving on the law reviews of both Harvard and Columbia and clerking successfully at a premier New York law firm were just icing on the cake. Such superb credentials typically guaranteed offers from top Wall Street firms or a coveted clerkship with a judge on a federal appeals court. Even an invitation to clerk with a justice at the Supreme Court should have been a possibility. The candidate believed she had all the prerequisites right down to the impeccably tailored black suit her mother-in-law had given her to wear for interviews. Poised for success, Ginsburg was caught off guard when job hunting did not go as anticipated.
The first surprise came from Paul, Weiss, Rifkind, Wharton & Garrison. Knowing she had done excellent work the previous summer, she fully expected an offer. But the partners, who apparently believed that having an African American woman (Pauli Murray) as a fairly new associate was sufficient advertisement of the firm’s commitment to diversity, showed no interest in hiring another woman.
Interviewing at Columbia with well over a dozen other firms, Ginsburg felt dismay when only two responded with an invitation for a second interview. Neither made an offer. To describe this turn of events as “depressing” was an understatement. The anguish of rejection was consuming. What had she done wrong? In the job market, as in law school, merit was supposed to prevail. Why was she being rejected?
Explanations varied. Being Jewish did not help. White-shoe firms were reluctant to hire Jewish applicants. Even Paul, Weiss, Rifkind, Wharton & Garrison, the only “balanced” firm at the time, preferred WASP applicants in order to maintain its Jewish quota of no more than 50 percent. So did Jewish firms yearning for broader social acceptance.
Sex and motherhood, the rejected candidate soon discovered, were her downfall. Clients, she was told, would be uneasy with a woman. Other members of the firm too might feel uncomfortable. Or, she would be ill at ease in such a masculine environment. The underlying message was always the same: “We don’t want women.” And they certainly did not want a young mother. When a senior partner needed affidavits for an unexpected motion, she would likely be out tending a sick child. How could she, with all of her family obligations, possibly have time for the informal social activities that generated client contacts?
Concerns about work-family conflicts had plausibility. But more was involved. Potential employers automatically equated “lawyer” and “male.” Lawyers, they unconsciously assumed, came with all the archetypal “male” traits. As an attendee at the Association of American Law Schools Conference in 1971 observed, “What were women lawyers after all? Simply soft men. The rough-and-tumble, knock-down-drag-out adversary confrontations would continue, as always,” he concluded, “with hard men center stage.”
Viewed through these lenses, Ginsburg—with her small size, soft voice, youthful image, and feminine appearance—did not measure up. Add to that her self-characterization at the time as “rather diffident, modest and shy”—traits that upon first encounter obscured her innate toughness, work ethic, and drive to excel. Male recruiters assessing Ginsburg could easily conclude that, irrespective of sex, her persona did not comport with the image of a potential rainmaker—a lawyer with the self-assurance, charisma, and track record to attract new and profitable clients to a firm.
In sum, ethnicity, sex, and motherhood trumped other attributes. “To be a woman, a Jew, and a mother to boot,” Ginsburg remarked in an often-repeated quotation, was just “a bit much” in 1959. She might have been able to surmount the first two impediments, she coolly speculated, but not all three. This restrained analysis—offered to an interviewer writing about successful women attorneys—belied her acute disappointment at the time. Only years later would she acknowledge that the experience remained seared in her memory as one of the most devastating developments of her entire career. The rejections gnawed away at her sense of professional identity and competence.
Fortunately for Ginsburg, the Columbia professor Gerald Gunther thought her intellectual credentials merited a clerkship. Having himself clerked for the renowned judge Learned Hand of the U.S. Court of Appeals and then for Chief Justice Earl Warren, Gunther understood the professional payoffs awaiting young lawyers who held such coveted positions. He was also aware of the sheer hard work, “awesome responsibility, and complete subservience” required in the master-apprentice relationship that characterized a clerkship. As the faculty member charged with the responsibility for finding clerkships for the few graduating students the faculty deemed worthy of the honor, Gunther took up Ginsburg’s cause. His target: “that small group of very good judges” in New York City who would be inclined to take his recommendation seriously.
Making the rounds at Foley Square in lower Manhattan, where the U.S. Court of Appeals for the Second Circuit was located, Gunther turned initially to Learned Hand, who was Ginsburg’s first choice. Because she had studied under the leading process theorists at both Harvard and Columbia, Ginsburg would prove a lively discussion partner as well as an indispensable assistant, he promised. Yet despite Gunther’s praise and assurances, the judge flatly refused. A gentleman of the old school, he knew that it was highly impolite to curse in front of a lady, and he had no intention of censoring his salty language.
Gunther then called every federal judge in the Southern District. Only two would agree to an interview, and one declined to make an offer. How could they function when their only clerk would be constantly running home to tend to her daughter? they asked; it was just too chancy. One of the two, Judge Edmund L. Palmieri, whose second clerk had been Jeanne Silver of Yale, had additional concerns. He stayed late in the office. What would his wife and daughters think about his working into the evening with such an extraordinarily attractive young woman?
Gunther was astonished by the response. A Holocaust survivor, he thought he understood prejudice. As a recent Harvard Law graduate, he had seen firsthand the bias against the pioneer women in his class. But the gender fissure was not going to become a crater for Ruth Ginsburg if he had anything to do with it. Judge Palmieri was a devoted alumnus of the Law School; perhaps that tie could be exploited. Contacting Palmieri, Gunther threatened never to recommend another clerk from Columbia if the judge refused to give Ginsburg a chance. When Palmieri began to waver, Gunther added carrot to stick. If she did not work out, he promised, she could easily be replaced by a particularly talented young man from her class; though the young man was already employed, Gunther had persuaded his firm to release him if need be. Thus reassured of a backup, the judge relented and agreed to meet Ginsburg.
Gerald Gunther, who made possible Ginsburg’s clerkship upon her graduation from Columbia Law School and remained her friend and champion throughout her career.
Unaware of the extraordinary measures to which Gunther had gone, Ginsburg simply assumed that Palmieri relented because he had two young daughters who he hoped would themselves be treated fairly one day. Several of Palmieri’s other clerks later expressed doubts that their boss could ever have been so obdurate. But Gunther stuck to his account, insisting that Palmieri’s resistance dissolved only after he met with Ginsburg. The two hit it off immediately, just as Gunther had anticipated. The job was hers.
Ginsburg found the judge to be “a model European-style gentleman,” fluent in both French and Italian (Palmieri’s wife was French). Enamored with opera, he was also a connoisseur of fine food and wine. Ruth discovered the judge had a daily routine that she promptly adopted. Every day at four o’clock, the two would walk, chatting about everything from testimony given at a trial, to the cast of the Met performance that evening, to good inexpensive restaurants, which Palmieri urged Ruth and Marty to try.
That judge and clerk worked so well together, and enjoyed each other’s company, was due in no small measure to Ginsburg’s characteristic preparation. She knew that the judge’s cases were mostly civil cases and some garden-variety criminal cases, with less frequent criminal antitrust matters thrown in. Rarely did he deal with political issues. She also knew that he was fair, ruling without regard for social status or income. Having read everything she could find that Palmieri had written, she mastered the nuances of his writing style before she reported for work. It was important that the judge be comfortable with what she drafted for him. She learned just as quickly to decipher Palmieri’s handwriting, a feat none of his prior clerks had managed to accomplish.
The elaborate preparation paid off. Once the judge decided what position he wanted to take on a particular case, he simply told her, “This is what I want to do and these, basically, are my reasons. You write it.” Often he would ask, “What’s the law?” Such queries sent Ginsburg rushing off to research relevant precedents and to compose an appropriate memorandum or opinion. District court was a fast-paced operation. Cases and motions covering a huge range of issues had to be dealt with quickly. In order to dispel any lingering concern that family obligations might prevent prompt completion of her responsibilities, she overcompensated. “I worked probably harder than any other law clerk in the building,” Ginsburg recalled, “stayed late sometimes when it was necessary, sometimes when it wasn’t necessary, came in Saturdays, and brought work home.”
During Ginsburg’s second year as a clerk, one incentive for finishing work on time—or carrying anything remaining home with her—was the opportunity to share a daily ride uptown with Judge Palmieri and Judge Learned Hand, who lived near each other. The great jurist, “the most revered of living American judges,” according to The New York Times, had delivered the Holmes Lectures her second year at Harvard before a rapt audience. With over fifty consecutive years on the bench, the elderly Hand’s health had begun to fail, but his mind was as sharp and his language as pungent as ever.
Ginsburg would sit in the backseat while this aging lion with his strong jaw, piercing eyes, and bushy eyebrows held forth in the front. On occasion, he would serenade his traveling companions with Gilbert and Sullivan; on other rides, he would pose questions like “If you could be born anytime in history what time would you pick?” Sometimes the topic was literature; at other times, it was shoptalk. Throughout, Hand punctuated the conversation with curse words unfamiliar to the young woman in the backseat. One evening she finally screwed up the courage to ask the judge why he had used his purple language as an excuse not to hire her but never censored himself on their rides home from the Foley Square Courthouse. In his rich, deep voice, he replied from the front seat, “Young lady, here I am not looking you in the face.”
Ginsburg’s second year brought other opportunities as well. Palmieri’s assignments carried ever-greater responsibility. Yet he also permitted her considerable freedom once she had fulfilled her obligations. In her spare time, Ginsburg sat in on trials presided over by other judges, spending as much time in various courtrooms as she could. In the criminal division of the U.S. Attorney’s Office, she confirmed the fact that indeed there were no female lawyers or clerks. She was not persuaded by the argument that such work was inappropriate for women. Gender discrimination aside, she remained deeply impressed with the justice dispensed in the federal judicial system.
Palmieri, in turn, gained an enduring appreciation of his clerk and found himself charmed by Ginsburg’s young daughter. He frequently told the story of the group of Wall Street lawyers from well-known firms who came unannounced to his office one day to present a paper they had prepared. As they later told him, they thought that Ruth, who the judge agreed looked barely eighteen, was his daughter and that Jane, who sat drawing pictures, was her little sister. This charming family scene dissolved into utter confusion when Ginsburg asked in her most professional tone, “Gentlemen, what is your problem?” She then followed with an incisive analysis of the paper that left the judge’s visitors awestruck. They had never expected such legal acumen from the soft-spoken, diminutive young woman whom they took to be Miss Palmieri.
Ginsburg, the judge later averred, was one of the three best law clerks he ever had. “She even show[ed] up on weekends,” he proudly announced, though he himself rarely did. Privately, he praised her competence and charm, which, he noted, had been evident from the outset. He also mentioned two additional qualities that she had manifested “in many subtle and delicate ways” in their close professional association: loyalty and affection.
As Ginsburg’s time with Palmieri wound down, Albert Sacks phoned his former Harvard student to say that he wished to submit her name to Justice Felix Frankfurter for consideration as a clerk. Because the justice was as renowned for being supportive of his clerks as he was critical of his brethren on the Court, Sacks no doubt thought that a clerkship with Frankfurter would be ideal for Ginsburg. She certainly could handle the incessant grilling to which Frankfurter subjected his clerks. And because he had made his own passage from Vienna to New York’s Lower East Side to Harvard Law School and on to Washington’s inner circle, he surely would not hesitate to hire a fellow Jew. More important, “the Little Judge,” as his clerks affectionately called Frankfurter, was widely known to be a staunch believer in merit. In 1948, he had chosen William Coleman, the first African American law clerk in the Court’s history. The justice, Sacks believed, might now in 1961 set another record—this time breaking the gender barrier.
Ginsburg basked in this gesture of confidence from a professor she so admired. Though she knew Sacks frequently placed clerks with Frankfurter—the justice always recruited from Harvard, where he had taught for twenty-five years—she was dubious from the outset that he would go for a woman, especially the mother of a young child. Further, he had only one precedent—a woman whom Justice William O. Douglas had appointed as clerk in 1944 as a wartime expedient. The odds, Ginsburg calculated, were not in her favor.
Sacks was at his most persuasive. Ginsburg’s intellectual stature was every bit the equal of previous Harvard graduates, whom Frankfurter found entirely satisfactory. Moreover, she was always impeccably dressed and groomed and never wore pants, which he knew Frankfurter detested on women. Yet the peppery justice simply would not budge. He was, as his biographer has observed, “a person of paradox and contradiction.”
Though hardly surprised by the decision, Ginsburg still needed a job. Palmieri swung into action, phoning law firms and writing letters attesting to his clerk’s ability. Just as important, he assured potential employers that motherhood had presented no barrier to her full commitment to work. Offers soon followed. But before Ginsburg could settle in at her desk at Strasser Spiegelberg, she received an intriguing call from Hans Smit, the founding director of Columbia Law School’s Project on International Procedure. Could they meet for lunch at the Harvard Club?
“How would you like to write a book on the Swedish legal system?” her tall Dutch-born host asked. Momentarily stunned, Ruth replied, “Tell me more.” Part of the new Project on International Procedure, Smit explained, involved surveying foreign legal systems so that American lawyers could understand how other systems worked. Projects on French and Italian law were already under way. Studying the Swedish legal system now seemed appropriate, because the Swedes had adopted a new code of procedure. In place since 1948, it combined the basics of the continental system with what the Swedes saw as the best of the Anglo-American tradition of common law. The study had yet to move forward because of the difficulties posed by the Swedish language.
Would she consider coming to work for the project as a research associate while learning Swedish? The project would provide a tutor, Smit promised. There was also funding for her to stay in Sweden as long as she needed once she had acquired the necessary linguistic skills. Topping off the package, he promised the opportunity to co-author a book with a prominent appellate judge in Lund, Anders Bruzelius. The judge’s daughter, Karin, had been a Kent scholar at Columbia. Everything Smit had learned about the father suggested that the two would be a good fit. Intrigued, Ginsburg promised to consider the offer.
She and Marty carefully weighed the pros and cons. Ruth knew that law firms disliked granting leaves of absence, and she could not afford to take an international assignment without one. To learn to read and write Swedish would require at least a year; learning to speak it properly would likely take even longer. Yet writing a book appealed to her scholarly bent. And Smit, with his cosmopolitan background, expertise in comparative law, and outgoing personality, promised to be a most engaging associate.
But what about family? If she took the job, it would involve two long stays in Sweden. Marty, who was working furiously to earn his partnership, would only be able to join her on vacations. She would miss him dearly. Yet at the age of twenty-eight, she needed to find out if she could manage on her own with a child. The opportunity proved “irresistible.”
Securing a two-year leave of absence from Strasser Spiegelberg, Ginsburg began a yearlong effort to master both Swedish law and the language. Her language instructor turned out to be a Columbia undergraduate who had learned Swedish when performing as the principal male dancer for the Royal Swedish Ballet. Their almost daily lessons—spiced with ballet gossip—became a welcome relief from a steady diet of Swedish law.
In the meantime, Ginsburg set to work on the Project on International Procedure. Ever the apt student, she discovered that Smit, who was only a few years older, rewarded her hard work in ways for which she would be eternally grateful. By her own admission she was much too self-effacing at the time, and job rejections had done nothing to enhance her self-confidence. Smit not only promoted his protégée to associate director but encouraged her to develop a public image commensurate with her ability. Inviting Ginsburg to lecture to his civil procedure class for a week, he urged her as well to publish her work in law journals. He also eased her into the comparative law circuit, introducing her to other scholars in the field as well as refining her taste in food and wine.
Recalling their work together, Smit observed, “Ruth is basically a reserved person, quiet but with a steely determination. When she sets her mind to do something, she does it and superbly.” Convinced that he, too, had made the right choice, Smit joined the list of scholars and teachers whose mentoring would have a lasting impact.
By the late spring of 1962, travel plans were in place. She would fly to Sweden alone so Jane could complete the last six weeks of first grade at the Brearley School. The Ginsburgs had enrolled their daughter in the elite private girls’ school at the insistence of the Brearley alumna and Yale Law graduate Antonia “Toni” Chayes, who, with her husband, Abe (Professor Abram Chayes), had befriended the token women at Harvard Law School. The two women had stayed in touch. Brearley, Toni counseled, was top-notch academically. Because tuition payments left no money to cover a private car service, the Ginsburgs moved downtown to Seventy-Ninth and York so that mother and daughter could walk to school before “Mommy” headed uptown to work. The housekeeper would assume that task—and others—in the six-week interval before Jane and Marty arrived in Sweden.
When Bruzelius met Ginsburg for the first time, the tall Swede could hardly believe that this diminutive young woman was to be his co-author. But a few weeks together demonstrated the aptness of Smit’s pairing. Ginsburg delighted in the way things were working out. She had Harvard professor Benjamin Kaplan’s publications on comparative systems of civil procedure, especially his work on Germany, on her desk, a fully equipped three-bedroom house in Lund, superb university child-care facilities for Jane, and English-speaking colleagues and friends, thanks to her father-in-law’s networking. Though Marty’s two-week vacation sped by much too quickly, Ruth readily admitted to a certain satisfaction in being able to function so well on her own.
The following year she delayed the trip until Jane’s school year ended. Waiting in Stockholm was an apartment for visiting scholars at Wenner-Gren Center. The handsome capital city, set on an archipelago of islands, was only an hour’s train ride away from Lake Bråviken. There she found a country home that functioned much like an American summer camp for Jane. With her daughter safely situated, Ginsburg could focus on her work. And work she did, almost completing the book that she and Bruzelius were co-authoring.
There were also professional benefits. The Project on International Procedure marked the beginning of a keen interest in comparative law that would bring Ginsburg prestigious assignments: membership on the editorial board of The American Journal of Comparative Law, the Europe Committee of the American Bar Association (ABA), the board of directors of the American Foreign Law Association, and, in 1969, an honorary degree from Lund University for her contribution to the study of Swedish law.
More important than the immediate professional payoff was the long-term international perspective that Ginsburg acquired. She understood that differences in legal systems in constitutional democracies have to be taken into account. Yet differences should not prevent American legal practitioners from discovering what “good minds abroad” have to say about shared critical issues, she maintained. While decisions of foreign courts had no binding authority in the United States, she ardently believed that if American lawyers and judges refused to be enlightened by their counterparts abroad, they could not expect to be heeded in an increasingly globalized world. Unwillingness to learn from others not only was wrongheaded but diminished U.S. influence internationally.
Long hours of summer light had illuminated more than the Swedish landscape—more even than the merits of other legal systems. Set off as well was the greater gender equality Swedes enjoyed. Prior to the 1960s, Swedish feminists and the Social Democrats had focused on helping women combine work and family roles. Their efforts did not escape Ginsburg’s immediate notice. Day-care arrangements for faculty children at Lund University far surpassed anything comparable in Manhattan, where she had found only two nursery schools where Jane might be enrolled. Women made up 20 percent of Swedish law students, not a token 4 percent as in the United States. Observing a judge on the bench who appeared to be about eight months pregnant provided yet another eye-opener, as did Sherri Finkbine’s much publicized abortion in Sweden.
A married mother of four, Finkbine had taken the drug thalidomide for symptoms of morning sickness, only to discover subsequently the high probability that the fetus would be severely deformed. Finkbine’s Arizona doctor had recommended a therapeutic abortion and she and her husband agreed, but he then declined to perform the procedure, fearing he would be liable for criminal prosecution. Following Finkbine’s flight to Sweden, Ginsburg questioned the criminalization of a medical procedure in the United States that seemed so fully warranted. Sweden’s health-care and child-care policies, she concluded, were in every way more attuned to the needs of women and families than were those in her own country.
Yet even the excellent services provided by the state did not suppress a fundamental question. Why, asked Eva Moberg, the editor of the women’s journal Hertha, should married women have two jobs, one domestic and one nondomestic, when their male partners had only one? There was nothing about the act of childbirth that required her to be the one to continue to do the feeding, diapering, and caring for the child until she or he became an adult. “We ought to stop harping on the concept of ‘women’s two roles,’ ” Moberg wrote. “Both men and women have one principal role, that of being people.”
Ginsburg followed the heated debate unleashed by Moberg in the Stockholm Daily News as the young feminist carried her argument further. Predicting that the day would come when women no longer had the exclusive “right to choose” between home and a career, both men and women, she contended, would have the same options and the same obligations toward society. Whether Moberg’s American reader realized she was witnessing a new stage in Swedish feminism is unclear. What did impress her was that “every cocktail party in the country…was consumed with talk of” Moberg’s article.
Based on a new four-year multidisciplinary study of women’s work and family life, Swedish and Norwegian social scientists had concluded that culturally constructed roles—stereotypical assumptions about the proper role of men and women—imposed constraints on both sexes that penalized individuals and impoverished society. The roles and responsibilities of men as well as women would have to change with men sharing equally in parenthood if both sexes were to have “the right to be human.”
About to return to New York, Ginsburg would follow from a distance Sweden’s new government-appointed commission to study women’s issues and propose policies to promote equality between the sexes. By 1969, the commission’s proposals became part of the Social Democrats’ official Equality Program under Prime Minister Olof Palme. Though she claimed to tuck away the opening salvos for gender equality once back in Manhattan, jämställdhet, as it was referred to in Swedish, had become imprinted in Ginsburg’s consciousness as firmly as “Sverige” (Sweden) had been stamped on her passport.
Reflecting on her professional future upon her return to New York, Ginsburg had second thoughts about her decision to join Strasser Spiegelberg. Partnership positions in large firms were (and are) a mark of power and prestige in the legal world. Yet did she really want to be stuck in the routine of having to work for the next twenty years on someone else’s project? And how about the eventual responsibility of bringing in business for the firm? She had always found the rigors of legal scholarship enticing. Enthralled by the law and its processes, she enjoyed sorting out legal intricacies. Perhaps she could teach after a stint in private practice. Law schools, she knew, allowed their faculty to engage in some litigation in addition to teaching. When a questionnaire surveying teaching interests of recent graduates arrived from Harvard Law School, she added her name, then dismissed the matter, but not before sharing the possibility with her good friend and Columbia mentor Gerry Gunther.
Shortly thereafter, Professor Walter Gellhorn at Columbia called. What, he asked, was she, a Columbia graduate, doing on a Harvard list of potential Law School faculty? His curiosity had been piqued, he explained, because he had a job for her. No, it was not at Columbia, New York University, or Fordham, as Ginsburg had hoped, though Gellhorn would later admit that in view of her credentials it should have been her alma mater. Rather, the opening was at Rutgers Law School in Newark, which had just lost its only minority faculty member, Clyde Ferguson, to the deanship of Howard University Law School. Because Ferguson taught civil procedure, an opening now existed for which she was qualified. Gunther, who had indicated that Ruth might be interested, had already contacted Eva Hanks—then Eva Morreale, another Columbia graduate, whom Rutgers had hired the previous year with the encouragement of Ferguson. Hanks lived in the city, Gellhorn continued, and she had agreed to come by the Ginsburg apartment for a chat. Realizing how little she knew about Rutgers, Ginsburg welcomed the visit.
Hanks assured her future colleague that she would welcome another woman. The Law School had a good dean, Willard Heckel, a thoroughly left-liberal faculty, and a new building on the way, and it was making a real effort to attract minority students. This was a tenure-track job from which she could commute back and forth from Newark to the city. Knowing women held only eighteen tenured academic posts in law schools in the entire country, Ginsburg gave her visitor her curriculum vitae and other materials to present to the Rutgers search committee.
Offered the position, Ginsburg now had to make a decision. She had really wanted at least five years’ experience in a Manhattan firm before teaching. But would another offer to teach come her way? Could she afford to pass up a bird in the hand? If she took the offer, how would she get litigation experience? Did the Rutgers faculty even want her? Or had they made the offer to a woman only because they failed to find another African American?
After talking it over with Marty, Ruth decided to accept. Yet she was troubled by the pay discrepancy she had discovered—not just between Columbia and Rutgers but also within the Rutgers Law School faculty. She would be earning less than her male colleagues with comparable qualifications. When she confronted the dean with the discrepancy, Heckel replied that she was now at an underfunded state university. Furthermore, she had a husband to take care of her, so it was only fair that she receive a lower salary than a man with a family to support. Heckel, a kindly man, seemed strangely indifferent to the new federal law mandating equal pay, Ginsburg observed. As a new hire on a yearly contract, she resolved not to push the issue—at least not yet. Better to bide her time until other female faculty at Rutgers were prepared to file an equal-pay complaint. In the meantime, she was grateful for a schedule that made it possible to meet her new responsibilities comfortably.
Ginsburg found even more to appreciate in Eva Hanks. Although the wary males on the faculty always referred to the two as “the girls,” Hanks assured the newcomer that the respect of her colleagues would come in time. The various inequities—including pay—were simply part of the price of admission paid by women entering the halls of academe in the 1960s. Just do your job well, Hanks advised, and try not to get sucked into the political battle between the traditionalists who want to teach law the customary way in the standard courses and the innovators who insist on adding “law and” courses—law and economics, law and sociology, and so on. The battle also extended to research, Hanks explained: traditional legal research versus empirical research. Ginsburg, seeing merit in both positions, decided to tread cautiously on what would prove to be highly polarized terrain.
When classes began in September 1963, Ginsburg quickly settled into the routine of teaching. Determined to make use of every minute of her time, she read her mail on the subway to Penn Station from her apartment on the Upper East Side, even though she had three changes along the way, making it such a nerve-racking commute that she had nightmares about not making the connections. During the train ride to Newark, she reviewed the day’s lectures. On the return trip, she immersed herself in academic journals, going over the latest articles on civil procedure and comparative law. The trip was grueling, especially on a daily basis.
Then, in early 1965, the thirty-two-year-old professor learned that she was pregnant. She was ecstatic. She and Marty had been told after his cancer treatment that they could have no more children. Conception seemed a near miracle. But along with the happiness came inevitable concerns. Given the massive doses of radiation that Marty’s reproductive system had sustained, Ruth worried whether the fetus would escape unaffected. And what about the impact of the pregnancy on her career? During Marty’s military service in Oklahoma, she had applied to be a Social Security claims examiner at a GS-5 level. When she revealed her pregnancy, the personnel officer promptly demoted her to a GS-2, explaining that a pregnant woman would be unable to travel to Baltimore for the necessary training session. Furthermore, if she took a job as a typist, she would be expected to leave work before giving birth and not return. At the time, she had rationalized the incident as “just the way things are.” Nonetheless, the memory rankled.
Ginsburg with her daughter, Jane (aged ten), July 1966.
Still on a year-to-year contract, she resolved not to be so naive this time and risk losing her job as soon as her pregnancy showed. Until the renewed contract was in hand, she would disguise her expanding figure in oversize clothes borrowed from her mother-in-law. And she certainly would not tell her colleagues that she was expecting. She and Hanks were careful to save their conversations for the railroad station or for the city. Her joy, along with any minor physical complaints, she would also reserve for Manhattan. In just a few months, the semester would be over.
Among friends, the Ginsburgs reveled in anticipation. Joan Bruder Danoff, Ruth’s old Cornell roommate, noted how she “glowed” throughout her pregnancy. “You were the very essence of motherhood,” declared Ruth Lubic, the wife of a law firm associate of Marty’s. Enrolling in a Lamaze class taught in a West Side apartment, the expectant mother learned how to cope with labor without sedatives. “Prepared to the hilt,” Ginsburg was struck by the contrast with her first pregnancy a decade earlier, when she had been unprepared for giving birth.
On September 8, 1965, a very pregnant Ginsburg produced a healthy baby boy. It was “one of the happiest days of my life,” the relieved mother proclaimed—a triumph over illness and death, especially for Marty. The beaming couple named their blond-haired son James Steven.
There was little time to hold this miracle baby, observe his facial expressions, or feel his tiny hand clasped tightly around her finger. Within the month, Ginsburg was back at Rutgers. Her teaching obligations for the next academic year included not only her accustomed course on civil procedure but also a new course on comparative law and another on conflicts of laws and federal jurisdiction. Fortunately, it meant only one new preparation each semester. Yet planning classes took time, especially because her lectures were carefully typed. Ginsburg also knew she must not let the demands of research take second place. She already had several publications to her credit: the book she had co-authored with Bruzelius on Swedish civil and criminal procedure and their English translation of the Swedish Code of Judicial Procedure, as well as journal articles. Yet more publications were needed if she wanted to move up the academic ladder. Moreover, it had to be significant new work, which meant a major investment of what was now in shortest supply—time.
Ginsburg was accustomed to working late into the night long after Marty had gone to bed; however, the months following James’s birth brought a level of sleep deprivation that she apologetically appeased by dozing off during the quieter parts of an opera. A new baby was only part of her growing family-care workload. Her father, Nathan, who had been badly injured in an automobile accident, had to be moved into the Ginsburgs’ recently acquired apartment at 150 East Sixty-Ninth Street until he recovered. Because there was no guest room, Nathan and all his hospital gear wound up in Jane’s bedroom, much to the dismay of the ten-year-old, who wanted her own space. Though fully aware that her daughter was “miserable” at the addition of a temporary roommate, the beleaguered mother felt she had no alternative.
Trapped by the needs of two generations, Ruth set up a nursing schedule, grateful that Marty’s income permitted as much outside help as possible. But when gaps appeared in the schedule, it was she who had to juggle her calendar to be at home with her ailing father because Marty was caught up in the treadmill of his practice. Yet she never considered a leave of absence during these intensely demanding months. Ever the realist, she knew that asking for special consideration could jeopardize her prospects for tenure. Male colleagues would likely assume that a woman with family obligations would be unable to pull her weight as a scholar, teacher, and involved member of the profession. She was undoubtedly correct in her assessment, but it did nothing to alleviate the strain in the apartment. Add to that commuting daily, teaching a full course load, preparing for new classes, and dealing with tenure pressure. The ultimate juggler, she had never underestimated how much she could handle. But now she felt overwhelmed.
In the daze of the months that followed, the dedication of Rutgers Law School’s new headquarters in 1966 provided an unexpected boost. Chief Justice Earl Warren and two associates (Justices William Brennan and Abe Fortas) arrived in Newark. When right-wing activists circled the block venting their outrage at the Supreme Court, the worried host, Dean Heckel, suggested that perhaps he should call for greater police protection. But Justice Brennan, the primary speaker, objected. “Leave them undisturbed,” he urged the dean. “They are just exercising their First Amendment rights.” Warren and Fortas, whom Brennan had persuaded to accompany him to his home state, concurred.
Brennan’s courage and wisdom that day made an indelible impression on Ginsburg. Like so many of his admirers, she found the justice’s qualities of mind and heart inspiring. Moreover, Brennan’s many opinions for the Court, along with his detailed commentary, added up to an astonishing level of productivity. Just thinking about the man and the example he provided restored Ruth’s spirits whenever she felt exhausted and worried about whether she had taken on too much.
The hard-pressed young mother needed every bit of inspiration she could find as the semester dragged on. Together she and Evelyn went to great lengths to see that Jane did not feel totally overlooked with a new baby competing for the family’s attention and a convalescent grandfather occupying her bedroom. Ginsburg’s outings with her daughter, like her own many years earlier with Celia, were more likely to include arts institutions than department stores. “I schlepped Jane to every children’s theater, to concerts, operas, Gilbert and Sullivan productions, and Rodgers and Hammerstein Broadway shows,” Ginsburg recalled. When Jane was eight, Ruth had taken her to the Metropolitan Opera to see Così fan tutte. Playing the record a month ahead of time so that the music would become familiar, she sat down with her daughter and went through the libretto so that the youngster would know the lines. Clad in a velvet jumper made especially for the occasion and seated in the front row of the balcony so that she would have a clear line of vision, Jane, according to her mother, had “loved it.” Acknowledging that as a working mother she probably “overcompensated on weekends,” she remained nonplussed at her daughter’s assertion that when she grew up, she was going to be just like “Nana,” who had never worked outside the home.
A career-oriented mother and Jewish parents made the ten-year-old stand out at an exclusive school like Brearley with its elite WASP clientele. Her mother’s weekend cultural expeditions, a trip with her parents to the nation’s capital—nothing alleviated the young girl’s sense of discomfort with her outsider status. Even a tour of historic sites around Washington had to be interrupted for a morning at the Court so that her parents could be admitted to the Supreme Court bar. Jane sat through the oath taking of new attorneys and a bit of a dull tax case before deciding she had endured enough. As she walked out of the courtroom, her parents hastily followed, knowing that the Supreme Court Building was no place for a youngster to be wandering around alone. Unable to return, Marty and Ruth entirely missed the civil rights case they had so wanted to hear.
Not until her high school years would Jane finally feel less an anomaly. The ninth grade brought more students of working mothers, though she had long had as a classmate Emily Heilbrun, the daughter of Carolyn Heilbrun, a professor of literature at Columbia. Heilbrun’s mysteries, written under the pseudonym Amanda Cross, were devoured by Jane’s mother, along with those of Dorothy Sayers. But nothing, the teenager felt, could overcome the ultimate marker of difference—being a Jew. Despite her blond hair, which she thought made her look more like the other girls, her application to dance classes attended by schoolmates came back wait-listed. Her parents took the message to mean “no Jews wanted.” Jane adamantly refused to let her mother reapply. A few years later, when she attended her first Brearley dance, Jane confided to her mother that she had a good time and met a very nice boy. “What is his name?” Ruth asked. Jane provided a first name. “And what is his last name?” Jane responded with what was obviously a WASP surname. Her mother, who had dated Christian boys in high school and college, replied, “Well, don’t expect him to call; his parents won’t allow him to.” To Jane’s regret, the prediction proved all too accurate.
Thursdays, when the housekeeper was off, Ginsburg worked at home. Her physical presence, however, did nothing to improve relations between mother and daughter. Ruth’s strictness contributed to the tension, just as Celia’s had done. Jane resented the frequent admonitions to “stand up straight,” “clean up your room,” “do your homework,” and “try another draft of your English essay.” Sloppy writing was as intolerable to Jane’s highly disciplined and overextended mother as a messy room. The strain in the household apparent, Jane asked if her parents’ shouting signaled the breakup of the Ginsburgs’ marriage. Ruth responded reassuringly, attributing Jane’s anxieties to the divorce of parents of a child in a nearby apartment.
Jane later acknowledged that, to put it mildly, she had not appreciated her mother’s tenacity on matters of posture, tidiness, or diet. “I was a resentful child and a spoiled brat,” she confessed. “Mother is tremendously sentimental, but she could also be somewhat austere. When I did something bad, which happened often, my dad would yell, but my mother would be real quiet, and I’d know she was very disappointed in me.” Recalling her mother’s eagle eye for candy wrappers in the wastebasket, she added, “Her searches and seizures of my childhood debris showed that Fourth Amendment principles held no place of honor in our household order.” Although she subsequently felt grateful for Ruth’s demanding standards, at the time they were a source of considerable friction between mother and daughter.
While Jane could be exasperating at times, she had a keen sense of humor. Sent to summer camp—an experience, which, unlike her mother, she thoroughly disliked—Jane failed to send the obligatory letter home each week. Chided for not abiding by camp rules by a mother who wrote to her daughter every single day, Jane posted her envelope the following week. Upon opening it, her parents found a newspaper clipping about the post office’s misplacement of a seventy-year-old letter. Their daughter’s ingenuity alone was worth a smile, if not the giggle Ruth usually reserved for Marty’s jokes.
No wonder, then, that during the early years, when his hardworking wife’s time was stretched so perilously thin, Marty considered it his job to inject some playfulness into her life, enlisting his daughter in a dinner-table game. Jane’s job was to count the number of times either of them could succeed in saying something or telling a story that would make her mother smile. So caught up did Jane become in the game that she later produced a booklet titled “Mommy Laughed.”
As the end of the 1965–66 academic year finally approached, Ginsburg had done more than survive. She had two new courses at Rutgers under her belt and a seat on the editorial board of The American Journal of Comparative Law, along with additional articles and an edited book on trade regulations in the Benelux countries (Belgium, the Netherlands, and Luxembourg). Accordingly, promotion to associate professor proceeded on schedule. The hardworking mother and scholar could now relax, but only momentarily.
Asked to teach a course in comparative law at New York University in addition to her regular Rutgers courses, she agreed, hoping it would culminate in an offer of a faculty position. In the middle of a lecture, a note was thrust into her hand. Stopping in mid-sentence, she glanced down. “Son ingested Drano; taken to nearest hospital.” Flying out of the door onto Washington Square, she made a mad dash, at first to the wrong hospital. Finally, the distraught mother learned that James, now two years old, had sampled some of the white granules in a container that he found under the kitchen sink. Fortunately, the housekeeper had rushed him to the emergency room before calling his parents.
As Marty and Ruth gazed down at the blistered mouth of their son, they wondered whether the disfigurement would be permanent. “Deep burns distorted his face,” Ginsburg recalled, “charred lips encircled his mouth—a tiny, burnt-out cavern, ravaged by lye.” Tests revealed that James had not actually ingested any of the Drano. Within days it was clear that the child would survive, though months would pass before his parents learned that the scars would not be permanent.
The accident marked one of the lowest points of Ginsburg’s adult life. Yet she subsequently recounted the event in the same dispassionate style with which she related the trauma of job rejections. The housekeeper, she insisted, did precisely what she herself would have done. In private, however, she agonized over the fact that she was not there when the disaster struck. Was her son paying the price for her career? Most of her guilt stemmed from failing to remove the Drano from the toddler’s reach. How could she have been so remiss? “She absolutely doesn’t forgive herself,” Jane perceptively noted. The compassion Ginsburg gave so freely to others she did not extend to herself; self-forgiveness had not been one of Celia’s lessons.
Indeed, the hard-pressed working mother often felt that as a two-career couple with children she and Marty were sailing in “uncharted waters.” Aware that his wife’s career was still very much a work in progress, Marty lined the dining room with bookshelves to accommodate part of his law library, dictating equipment, and growing collection of cookbooks so that he could at least work at home at night. But the demands that came with his soaring reputation prevented his doing more to balance parenting responsibilities. Were the indispensable housekeeper to suddenly quit, they both knew that “Nana” would pitch in temporarily. After Nathan recovered from his accident, he, too, helped, taking James to Central Park most Sundays. But there were times when even Ginsburg’s formidable juggling skills were tested.
Ginsburg watching the end-of-term student show at Rutgers School of Law in Newark, New Jersey. She was one of two women on the law faculty, from 1962 to 1973.
The Law School was yet another proving ground. Ginsburg knew that she was a knowledgeable teacher, expert in her subject matter. But her no-nonsense manner and slow, unexpressive delivery did not make for memorable classroom performances. “For the good students, she was a wonderful teacher,” said her colleague Frank Askin. “A lot of the weaker students got bored and went to sleep.” In the beginning, her colleague Eva Hanks recalled, “she clung to the lectern almost as if she were afraid of the students.” What did come across was the remarkable intensity with which she talked about the law. Students seized upon it instantly as the feature they would caricature at their annual spoof of the faculty. Imitating Ginsburg at the lectern, her student counterpart talked on earnestly, oblivious to the fact that articles of clothing were being removed one by one until she was left lecturing in her undergarments. Colleagues and students roared with laughter, though Hanks, who thought the students never knew where to draw the line in these events, declined to attend.
The two had an unspoken understanding, Hanks recalled. “We never sat together at a faculty meeting, and we had coffee together only at the Newark train station or in the city.” Even in their conversations, “family responsibilities were mentioned only indirectly….We knew we needed to be seen as autonomous professionals.” Downplaying their otherness as women in a male-dominated environment, in which they were expected to play by rules not fully disclosed, was not easy. Asked what their Rutgers colleagues thought of Ginsburg, Hanks replied without a pause, “They misread her. She was so petite and so soft-spoken, they never realized how tough she was.”
Marty knew, of course. He also knew that his hardworking spouse needed all the support he could offer. While managing the pressures of his own flourishing career, he tried to provide breaks that would go beyond their frequent opera evenings, thrilling as those were when singers such as Leontyne Price, Franco Corelli, and Marilyn Horne made their triumphant debuts. Whisking the family off to vacation spots helped, allowing Ruth to experience the exhilaration of waterskiing, though she often brought work along as well. There were also frequent short trips related to Marty’s corporate tax practice that allowed the couple to escape to luxury resorts for a few days of combined work and relaxation without the children. Friends with whom they dined on such junkets discovered that Ruth’s leisurely eating habits had not changed since her first year at Cornell. “World Wars, Court calendars, ‘Gandhi,’ [and] Davis Cup matches can be completed before you will finish an appetizer,” they teased.
Yet while the children were still young, she was reluctant to miss an evening meal at home, despite the presence of a live-in housekeeper. As a working mother, it was a way of “being there” for her family. Moreover, having dinner with Jane and James, while classical music played in the background and the family members talked about their day, was part of the Ginsburgs’ definition of good parenting. Another part was not clinging to the children too tightly, especially as they grew older.
When Jane reached ninth grade, her parents agreed that because she so disliked summer camp, they should search for an alternative that would be completely different from her Manhattan routine. To Ginsburg’s delight, she managed to locate a family on the outskirts of Annecy, France, with whom Jane could live for the summer. The mother and her five children met the essential criteria: “They spoke another language, lived in a different culture, and were not intellectuals.” Returning for two more summers, the teenager improved her fluency in French each year to the delight of her parents, who breathed a sigh of relief at having finally solved the problem of their daughter’s school vacations. For Jane, these summers marked the beginning of a love affair with France so intense that as a mother herself she would insist on speaking French with her own children.
With James now enrolled at nursery school at “Little Dalton,” the elite private school for boys, his mother felt she could add new commitments. The most critical of these was volunteering her services to the New Jersey affiliate of the American Civil Liberties Union (ACLU), a venerable organization that had also become heavily engaged in championing civil rights. A national body, the ACLU had affiliates in most states that represented clients whose civil liberties or civil rights had allegedly been violated.
But why would this workaholic professor and mother take on yet another job? Obviously, working with the New Jersey affiliate would serve as an opportunity to gain the much-needed litigation experience she had forfeited by taking a teaching position. But there were also other considerations. In the wake of World War II, American Jews had begun a major effort to use the law to protect and extend civil liberties, not only through their own defense groups, but also through nonsectarian organizations like the ACLU. As the fight against anti-Semitism became a fight for human rights, Jewish lawyers played a leading role as activists in the liberal movement’s effort to use the law as a tool for justice that was substantively humane. In part because of their efforts, along with those of lawyers from the NAACP Legal Defense Fund and other such groups in the liberal legal network, the courts during the 1960s had acquired new luster as ultimate protectors of human rights. For that generation of law professors, affiliation with the ACLU was also a form of public service.
James Ginsburg (“my golden-haired boy,” said Ginsburg of him) circa 1968, 1969, in the garden of Ginsburg’s mother-in-law, Evelyn Ginsburg, Rockville Centre, New York. Standing near James, Erica Landau, the daughter of friends from Cornell days.
Ginsburg’s sympathies with the rights revolution had never been in doubt. But only after quickly climbing the academic ladder from associate professor in 1966 to full professor with tenure in 1969 and the award of an honorary degree from Lund University did she feel that she could afford even minimal participation. It was not that she had been indifferent to events reshaping American society during the tumultuous 1960s. How could one not be intellectually and emotionally engaged when in 1968 alone the Vietcong’s Tet Offensive sent sixteen hundred American soldiers home in body bags and eight thousand more with wounds? Protests were erupting like wildfire, consuming university campuses; a maverick candidate had forced a sitting president in his own party to renounce a second term; and assassins’ bullets had struck down both Martin Luther King Jr. and Robert Kennedy.
Yet through the agony and tumult, Ginsburg’s focus had remained on her high-wire act, perilously balancing career and family. Beyond matters relating to her professional and personal life, causes—even highly deserving ones—had to yield. Never in her most ambitious dreams did it occur to her that responding to a New Jersey nurse’s complaint against the army might open the door to a more demanding career. Nor could she imagine what might conceivably trigger the transition.