Ruth Bader Ginsburg opens centennial panel
Associate Justice of the Supreme Court Ruth Bader Ginsburg H ’96 spoke to students, faculty, trustees, administrators and alumni last Thursday in the Gosman Sports and Convocation Center. Ginsburg served as the opening speaker at a panel discussion on the legacy of Louis Brandeis, Supreme Court Justice and the University’s namesake. The event kicked off the University’s semester-long celebration of the centennial anniversary of Brandeis’ nomination to the Supreme Court.
Ginsburg spoke about her admiration of Brandeis’ legal style and work promoting equal rights in the work place, even as she criticized some of his work's content as sexist and pseudo-scientific. Ginsburg was followed by a panel of legal experts — including former University President Frederick Lawrence — who discussed Brandeis’ legacy and how it applies to issues today.
An hour and a half before the main event in Gosman — titled “Louis D. Brandeis, The Supreme Court and American Democracy” — a small panel of students sat down with Ginsburg for a question and answer-style discussion. These included students who had, over the last two semesters, taken or are taking either AMST 188b “Louis Brandeis: Law, Business and Politics” or POL 197a “The Supreme Court Colloquium.” The panel also included students involved in ’DEIS Impact, Student Union President Nyah Macklin ’16 and Graduate Student Association President Stephen Alkins Ph.D. ’17.
In a phone interview with the Justice, Prof. Daniel Terris (PAX), one of the moderators of the Q&A, said students asked about a range of topics including Ginsburg’s style as a justice and obstacles women face in advancing through the legal profession. Ginsburg emphasized “a strong belief in the democratic process and the need for persistence in working for change,” said Terris. In discussing the organization of the small panel, Terris said the organizers wanted students for whom “there was a clear and obvious reason for them to be there … we just had to make some call about which groups we were going to invite and we chose those as ones that we felt were most obvious and most natural. We didn't think it was practical to hold a University-wide process.”
Early into the panel, Uday Jain ’17 asked Ginsburg about Brandeis’ history fighting large corporations and asked whether she feels the same checks exist against corporations today, which are far larger than in Brandeis’ time. Ginsburg replied that the United States government is also far larger than in Brandeis’ time, but that deregulating corporate entities leads to economic troubles like the 2008 financial crisis. Terris followed up by asking whether the Supreme Court has a particular role in the process of regulation, to which Ginsburg said that, as with all issues, the Court deals with questions of regulation when they are presented to the justices.
“We don’t decide ‘Oh, this year we’re going to deal with same-sex marriage.’ It depends on people bringing the cases to us,” Ginsburg said.
At the main event at 5 p.m., Interim President Lisa Lynch introduced Ginsburg, saying, “Like Brandeis, Ginsburg has used fact-based jurisprudence brilliantly to advance social change, and both have used their opinions and dissents to educate the public about the social conditions that affect people’s lives. … She is a force of nature. Underestimate her at your peril.”
Ginsburg began her address by discussing the “Brandeis Brief” filed as part of Muller v. Oregon in 1908, in which Brandeis, as a lawyer, argued to uphold Oregon’s restrictions on women working industrial jobs for more than 10 hours a day. It was the first prominent legal brief in U.S. history to rely primarily on scientific data and testimony instead of legal citations and argument — although most of the science in the original Brandeis Brief has now been debunked, including claims that women’s blood has more water than men’s blood.
Ginsburg said that while the Muller decision was “an obstacle” to the Court recognizing gender equality as a Constitutional principle, “the method Brandeis used to prevail in that case was one I admire and copy.”
According to Ginsburg, Brandeis stressed that women needed to work shorter hours “to attend to their family and household responsibilities,” and one of the sources Brandeis quoted in the brief said that a woman returning from work “should be learning to keep house if her future household is not to be a disorderly failure.” Brandeis’ opponent in the case, on the other hand, argued that most of the disadvantages women face in the workplace are a result of social customs — an argument, Ginsburg noted, that equal rights advocates of her day embrace.
“While equal rights advocates attacked the substance of the Muller decision, they were hugely inspired by Brandeis’ method,” Ginsburg continued. “The aim of the Brandeis Brief was to educate the judiciary about the real world in which the laws under inspection operated. That same aim motivated brief writers in the turning-point gender discrimination cases Reed v. Reed decided in 1971 and Fronteiro v. Richardson decided in 1973.”
Ginsburg went on to discuss elements of Brandeis’ time on the Supreme Court that she admired, including his careful wording of decisions, his restraint about when to publish decisions and his willingness to change his mind on important issues. “He cared not only about reaching the right bottom-line judgment; he cared very much about writing opinions that would enlighten other people,” Ginsburg said. Ginsburg argued that Brandeis only published dissents and concurrences when he felt the public truly needed to hear his separate views, which gave those opinions he did publish a renewed urgency. Ginsburg also pointed out that Brandeis opposed women’s suffrage in the 1880s, but by the 1910s was “an ardent supporter of votes for women.” Brandeis’ willingness to change his mind in response to new information and ways of thinking was an admirable quality, in Ginsburg's opinion.
Finally, Ginsburg concluded by arguing how Brandeis would have responded to recent Supreme Court cases. “Brandeis, I have no doubt, would have agreed with the majority’s decision to salvage, not destroy the Affordable Care Act,” she said of the court’s 2015 decision upholding President Obama’s healthcare reform bill. “I venture too that Brandeis would have deplored the court’s 2010 decision in Citizens United against [Federal Election Commission],” Ginsburg added to applause from the audience. The Citizens United decision removed restrictions on how much money corporate entities can donate to political campaigns.
After Ginsburg left the podium to wide applause, the event transitioned into a panel discussion on Brandeis’ legacy with Massachusetts Chief Justice Ralph D. Gants; Philippa Strum ’59, a biographer of Brandeis and senior scholar at the Woodrow Wilson International Center for Scholars; staff writer for the New Yorker and senior analyst for CNN Jeffrey Toobin; and senior judge of the U.S. District Court for the District of Massachusetts Mark L. Wolf.
Lawrence, who resigned as University president last February and is now on sabbatical from Yale Law School, moderated the panel. He said that Brandeis and Ginsburg share many common traits and that were he there that afternoon, Brandeis would have told Ginsburg — herself an honorary doctor of the University — “Welcome home. Indeed, if I may be given a moment of personal privilege, he might say that to both of us tonight.”
Lawrence asked the panelists to give one example of how Brandeis’ work still resonates in American democracy. Gants pointed to Brandeis’ legacy of pro bono work for the sake of social consciousness, while Wolf praised Brandeis’ dedication to using the law to fight municipal and corporate corruption. Strum said that Brandeis was “an implacable democrat” and that “it was necessary for the law in a democracy to change as societal conditions change and as the people had to adapt themselves to new societal conditions.”
Toobin pointed out that Brandeis was born shortly after the Civil War and died shortly into World War II, arguing that his story is of his response to the changes brought by the industrial revolution in that time.
He said that Brandeis had “an almost pathological fear of bigness” in both government and business and said that due to this libertarian philosophy, Ginsburg was wrong about his opposing Citizens United. Ginsburg later rejoined the panel and responded to Toobin’s argument by saying that Brandeis constantly fought to control corporate interests.
The event was held 100 years to the day that President Woodrow Wilson nominated Brandeis to the Supreme Court. Brandeis served on the Court for 23 years.