Jurisprudence

RBG’s Prophetic Warning on Roe v. Wade Went Ignored

Ruth Bader Ginsburg behind a microphone in big glasses and a blue jacket.
Ruth Bader Ginsburg testifies on July 20, 1993, during her confirmation hearings before the Senate Judiciary Committee. Gary Hershorn/Reuters

When Jeffrey Rosen first met Ruth Bader Ginsburg, it was in an elevator in 1991. The “austere, very formidable” Ginsburg was wearing workout clothing, having just come from a Jazzercise class. Rosen was extremely intimidated by her silent presence, but in an attempt to break the ice, he asked the first question that came to mind: “What operas have you seen recently?” It turns out that was the right question because Ginsburg really loved the opera, and a lasting friendship was born. In November of last year, Dahlia Lithwick sat down with Rosen at the National Constitution Center, where he serves as president, to discuss his book Conversations With RBG: Ruth Bader Ginsberg on Life, Love, Liberty, and Law. In light of Ginsburg’s recent death, a transcript of a portion of their sweeping conversation, which has been edited and condensed for clarity, is below.

Dahlia Lithwick: Justice Ginsburg always talks about the advice that her mother gave her as a young girl. She always says her mother told her two things: one, be independent, two, be a lady. Now, bearing in mind that at the time, “be a lady” meant “don’t be independent,” it is a life that she has actually crafted in which she has managed to do both. I wonder if you can just take us through the Ruth Bader Ginsburg that was a lady, was very careful, very reserved, to the Ruth Bader Ginsburg of today.

Jeffrey Rosen: You’re right that those two injunctions from her mother—and the fact that she tells it shows how significant it is to her—might seem to be in tension. How can you both be a lady and be independent? I asked her about this during our last interview, in July. And I say, “Your mother often told you to be a lady, to be independent.” “Yes,” she said. “By that, I gather she meant overcome unproductive emotions like anger and jealousy. Is that right?” “Yes,” she said. And then I said, “So how do you actually do it?” And she said, “Because I realized if I don’t overcome unproductive emotions, I’ll lose precious time for useful work.” And it’s that extraordinary self-mastery that is the advice of the great wisdom traditions of the Bible and the Bhagavad-Gita and the Buddhist traditions—to set aside your ego so that you can focus on achieving your true path and serving others—that she lives more successfully than any human being I’ve ever encountered.

When she started off at the Supreme Court, she was viewed as a very particular judge who would definitely pay close attention to word choices, a judge’s judge and a minimalist who was very keen on narrow opinions that wouldn’t dramatically disturb legislative choices, yet she became the most galvanizing and crusading advocate of liberalism of our time. And I asked her about it, and she insisted: “Oh, Jeff, I didn’t change. The court changed.” When Justice John Paul Stevens retired, Justice Ginsburg becomes the senior associate justice. All of a sudden she thinks her role changes, far from being the minimalist, always crafting a narrow opinion. She thinks it’s important for the liberals to speak in one voice, so she starts writing the main dissents. And it was in 2013 that she writes her Shelby County dissent, which inspires the Tumblr blog, the Notorious R.B.G., which goes viral. So that’s her explanation, that it was really just a change in role and the composition of the court, not in her. But Dahlia, I have to ask you this because you’ve thought as deeply about this as I have, do you buy that explanation? Or do you think that she actually did change?

Her whole career, she’s one of two women on the bench. And she was actually pretty scrupulous about saying gender doesn’t matter that much. She and Justice Sandra Day O’Connor—Jeff talks about this in the book—every single year that the two of them sat together, at some point an oral advocate would call Justice Ginsburg Justice O’Connor and call Justice O’Connor Justice Ginsburg. It happened every single term. So much so that the National Women’s Law Center had T-shirts made for them that said: “I’m Sandy. She’s Ruth.” “I’m Ruth. She’s Sandy.” It was a joke.

But also, I think that in that period it seemed she was much less anxious because she wasn’t the only one. And she was very aware that the trailblazing had been done by Justice O’Connor. And then, when O’Connor left in 2005 to take care of her ailing husband—which is, by the way, a whole other feminist story because it was really a thing that the male justices would not have done, she felt—suddenly Justice Ginsburg is the only one, which is a long way of saying that in 2009, when the court argues a case about a little girl in middle school who’s been strip-searched for contraband ibuprofen, I remember sitting in the room for the oral argument, and everybody was making jokes. Justice Antonin Scalia was joking about whether they searched from the outside in or the inside out. And Chief Justice John Roberts was making jokes. And then poor Justice Stephen Breyer starts saying things about, “When I was in high school changing for gym, people would stick things in my underwear.” And of course everybody at this point is doubled over laughing.

And Justice Ginsburg, who never loses her cool, actually gets very angry. And she sort of tunes up her colleagues from the bench and says, “This is nothing like changing for gym class.” And she describes how this child was humiliated while the strip search was going on. And then, she gives an interview, while the case is pending, where she says to Joan Biskupic: I can’t believe that I’m the only woman on the bench who thought that was appalling. And if there were more women on the bench, it would not have been like that. And then she said, which is fighting words for RBG, I don’t think the men share my sensitivities on this. And by the time the case comes down, all the judges, with two exceptions, mostly have conformed entirely to her vision of this as an inappropriate search. But it was her wielding a kind of soft power, and I had never seen her do it until then. That, to me, is when I carbon-date how she started to change.

That’s so convincing. I think you’re right that once she realized both that she had a distinctive role to play and was, as you just said, outraged by the fact that her male colleagues weren’t getting it, she could find her voice. And then the writing changes, too. The early decisions quote other judges all the time. Suddenly, after 2013 or so, she’s coming up with these great metaphors like Just because you’re not getting wet doesn’t mean that you throw away your umbrella. And she writes like a dream, and she writes in a really galvanizing way. And then young women and other citizens are galvanized and responding, and start quoting her. So she’s just freed up. She’s liberated to say what she thinks.

One of the things that you explore in the book is—and we forget this—when she was first tapped for the U.S. Supreme Court, women’s groups did not want her. They were strongly opposed to her. The women’s movement was really, really suspicious of her. She actually had a fairly consistent criticism of Roe that she had elucidated at the time, that people took very much, I think, as a myth. Now it seems that she might’ve been on the right track and we failed to catch it.

This is what she said: “At the time of Roe v. Wade, this issue was all over the state legislatures. Sometimes the choice people won, sometimes they lost. They were out there organizing and getting political experience. The Supreme Court decision made every law in the country, even the most liberal, unconstitutional in one fell swoop. The people who prevailed said, ‘How great. We’re done. We’ve got it all. The Supreme court gave it to us.’ What happened? Opposition mounted and instead of fighting in the trenches state by state to retain restrictive abortion laws, there was one clear target to aim at, the unelected justices of the Supreme Court.”

Embedded in here there are a few criticisms, many of which have been borne out by history. One is that the move in opposition to Roe becomes the single most powerful and effective movement in the country, that attacks on the unelected judiciary become salient and organizing. And then another critique, which is not in this quote, is that she would’ve always located reproductive rights, not in the due process clause, the privacy clauses, not in the rights that she scoffs at in Roe between a doctor and a woman, but in the equal protection clause, that women cannot function as economic equals in a society where they can’t control their reproductive rights. In many ways each of those critiques is pretty prophetic. But it’s amazing that she went from being somebody that the feminist movement, at that time, in the early ’90s, found way too conservative. And now here she is—she seems to have been ahead of her time.

Prophetic is exactly the right word. Isn’t it amazing that at the time women’s groups opposed her? It’s impossible to imagine now. So she’s appointed, and the women’s groups are against her, both because of Roe and because they think she’s too minimalist, too conservative, too cautious, not enough of a crusader. But then think about how prophetic she was. The claim that Roe inspired a backlash that would energize the pro-life side and make complacent the pro-choice side in a way that stayed what Justice Ginsburg said was a movement in favor of the liberalization of abortion laws seem right. Roe came, as she predicted, to dominate our Supreme Court confirmation politics in a way that blinded people to other issues like the future of the administrative state, for example, that have proved just as salient.

And then there’s the equality rationale. It’s so remarkable that for 20 years the brightest, most brilliant legal minds in America tried to come up with an alternative rationale for Roe, an alternative to Justice Harry Blackmun’s privacy metaphor, which was problematic, both because the Constitution doesn’t explicitly protect reproductive autonomy or privacy in that sense and also because it was paternalistic, as Justice Ginsburg said, to conceive of abortion as a private choice between women and their mostly male doctors. And after 20 years of thinking, the best that the most brilliant minds could come up with was Justice Ginsburg’s claim, that it’s a violation, not just of privacy, but one of women’s equality to impose burdens on women that are not imposed on men—to prevent women, and not men, from making autonomous decisions about their life courses and careers. And in that sense, to violate the promise of equality enshrined in the Constitution. And when the court upheld Roe v. Wade in Casey v. Planned Parenthood, it invoked that equality rationale. If we’d listened to her 25 years ago, the rights of abortion would be on much stronger constitutional grounds.

To hear the rest of their 2019 conversation, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.