Tuesday Talks: Constitutional Scholar Captures True Voice of Supreme Court Justice
Share this post
Cleveland Park resident and constitutional scholar Jeffrey Rosen was a 27-year-old law clerk, working for a judge on the U.S. Court of Appeals for Washington, D.C., in 1991 when he first met Ruth Bader Ginsburg, aka RBG.
Rosen was on an elevator going up to the clerk’s office in the U.S. Court of Appeals on a fall day in 1991 when RBG, then a judge on the court, stepped into the elevator, dressed in workout clothes after taking a jazzercise class.
“Even in workout clothes, she was a formidable presence,” remembered Rosen, president and CEO of the National Constitution Center in Philadelphia who spoke about his latest book on RGB during a Tuesday Talk at the Cleveland Park Library on Nov. 19.
In the elevator, RBG maintained a “sphinx like silence,” making her seem remote while creating an uncomfortable silence.
“So we are standing there, and she is standing there quietly in work-out clothes,” recounted Rosen, author of the recently released Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty and Law. “I am a meager young law clerk, and I can’t think of anything to say.”
To break the silence, Rosen, a devoted opera fan, suddenly blurts out, “What operas have you seen recently?”
It was exactly the right question to ask. RBG is passionate about the opera, something Rosen did not know at the time. His question sparked an ongoing conversation, and it eventually led to a friendship that has lasted nearly 30 years, culminating most recently in Rosen’s book about RBG.
In the book, RBG’s true voice comes through, a voice that Rosen described as “tuned in and warm.” At the age of 86, RBG still has “astonishing recall of the details of cases and facts of cases from years ago,” said Rosen, who has also written biographies of Supreme Court Justices William Howard Taft and Louis D. Brandeis.
In her review of the RBG book for The Washington Post, documentary filmmaker Julie Cohen, said, “At its best, this book makes you feel like a student in the world’s coolest law school seminar with Ginsburg and Rosen definitely leading you through constitutional clauses and case law to elucidate how the court works and why it matters.” (Cohen co-produced and co-directed RBG, an acclaimed documentary film.)
In his remarks, Rosen described RBG’s constitutional vision as “always optimistic but cool-eyed.”
In their last interview for the book, Rosen told RBG, “You are not an originalist,” meaning she is not a judge who strictly interprets the constitution based on its original understanding.
RBG shot back, “I am an originalist. I believe the founders intended the constitution to always become more embracive.”
“It is a very beautiful word – embracive,” said Rosen, who also is a law professor at George Washington University. “And it is her word.”
RBG defines embracive as “embracing the left-out people not just grudgingly but with open arms,” Rosen explained.
“I am moved just to think about (embracive),” Rosen said, his voice slightly wavering with emotion. “It is so uniquely hers, and it has really defined her career.”
RBG’S PATH TO THE SUPREME COURT
RBG has emerged as a transformative figure on the Supreme Court, one of the few Supreme Court Justices to transform the constitution, becoming a hero to the left in the process, said Rosen. But her nomination to the Supreme Court almost never happened.
In 1992, Justice Bryon White announced his retirement, creating a vacancy on the highest court. Although RBG was on the list to replace him, she was not at the top of the list. Legal scholar Laurence Tribe of Massachusetts and New York Governor Mario Cuomo were the frontrunners.
Rosen was then the legal affairs editor for The New Republic magazine. One day in 1992, he went to lunch with law clerks at the U.S. Court of Appeals who told him that a few weeks earlier Supreme Court Justice Antonin Scalia visited the Court of Appeals. One of the law clerks asked Scalia if he had to be trapped on a desert island with Tribe or Cuomo whom would he choose.
“Without missing a beat, he said, ‘Ruth Bader Ginsburg,’ ” recounted Rosen as the audience laughed.
Rosen pointed out that some women’s groups opposed RBG’s nomination to the Supreme Court because she criticized Roe V. Wade, the 1973 Supreme Court decision legalizing abortion in this country. RBG said the results of the case were right, but it created too many regulations throughout the course of a pregnancy, making it too broad of a decision and creating a potential backlash.
RBG said the case should have been decided based on women’s equality rather than the right to privacy. By outlawing abortion, she argued, state and federal governments were denying women the right to make their own decisions about their lives and were thus imposing burdens on women that do not apply to men.
In 1992, New York Senator Daniel Patrick Moynihan was urging President Bill Clinton to nominate RBG to the Supreme Court, a fellow New Yorker. Sen. Edward Kennedy of Massachusetts wanted Clinton to nominate Tribe, a resident of Massachusetts.
“They were sort of having a bake off,” Rosen joked.
As a 28-year-old legal journalist, Rosen wrote a piece for The New Republic ranking the candidates and lavishing praise on RBG.
“Moynihan later wrote me that he was flying in Air Force One and Clinton asked who should I nominate to the court?”
Moynihan, having just read Rosen’s article, said, “There is just one choice – Ruth Bader Ginsburg.”
Clinton said, however, “The women are against her.”
Moynihan then sent Clinton a speech by the Dean of the Harvard Law School who described RBG as “the Thurgood Marshall of the women’s movement.”
That convinced Clinton to nominate RBG to the Supreme Court. RBG and others also said Rosen’s article played a role in her nomination.
After telling the nomination story, Rosen alluded briefly to his first encounter with RBG.
“I guess the moral of the story is, take the stairs,” he said, drawing laughs from the audience.
A SUPREME JUSTICE
Not surprisingly, Rosen has closely followed RBG’s career on the Supreme Court, conducting numerous interviews with her over the years. During her first years on the court, RBG was a “restrained judicial minimalist,” a justice suspected of being insufficiently liberal by many on the left. And now, she sits on the court as the hero of liberalism, an evolution that Rosen described as a “great marvel.”
Rosen asked her about that evolution and RBG discounted that characterization, saying simply that the court became more liberal when Justice Sandra Day O’Connor retired in 2006, leaving her to dissent more often.
“I spoke in a more liberal voice,” she said.
The retirement of Justice John Paul Stevens in 2010 also gave RBG the opportunity to write more majority opinions and dissents. She soon found her own voice, speaking in what Rosen called “this prophetic voice of principled liberalism which is distinctly her own.”
“When she is in dissent, she made it a priority to have the liberals speak in one voice, and to then write the principal dissent so they would have more of an impact,” he said.
On a personal level, Rosen is constantly amazed at RBG’s “super human focus and dedication.” Rosen sent her the manuscript for his book in January, thinking RBG would review it in her own time, especially since undergoing treatment for cancer twice in the past year.
Ten minutes after the Supreme Court term ended on June 27, RBG sent Rosen an email, saying, “I have copy edited your manuscript, and will get it to you next Tuesday.”
The next Tuesday, RBG returned the manuscript, edited in pencil in her own handwriting. She fixed the typos, changed words and made tiny nuances to make her voice clearer.
“I was literally stunned, and I asked, how on earth did you find the time to do this in the middle of everything else you had to do this year?” Rosen said.
RBG responded by saying, “I promised you I’d have it, and I like to keep my word.”
RBG applies the same strict standards to others. When she served on the U.S. Court of Appeals, RBG wore a particular perfume, and her law clerks could smell her coming down the hallway, striking trepidation into their hearts.
“They were terrified because she was so demanding,” said Rosen.
When RBG left for the Supreme Court, she gave each of the female law clerks a bottle of the perfume, and one of her former law clerks said she still feels frightened when she puts it on.
Rosen has lived in Cleveland Park since 1991, and as the president and CEO of the National Constitution Center, he usually spends Monday through Thursday in Philadelphia before coming home to Cleveland Park on Fridays.
Like many longtime residents of Washington, D.C., Rosen decries the rampant polarization in the nation’s capital, saying, “None of us who have lived here have ever seen anything like it.”
“But the (Supreme) Court for all of its polarization is comprised of nine people who can disagree without being disagreeable, and they are still friends,” he said.
He cited the friendship between RBG and the late Chief Justice Scalia as proof, two judges on opposite ends of the judicial spectrum. RBG told Rosen that Scalia “could drive me crazy, but he just made me laugh.”
Although RBG strongly denounced Scalia’s decisions, their differing views did not affect their personal affection for each other and their mutual respect and admiration for the Supreme Court.
According to Rosen, RBG said, “I revere the court as an institution …. I think (all of the justices) are trying to leave it a little better than when we came.”