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Jeffrey Toobin On 'Tough As Nails' Justice Ruth Bader Ginsburg

DAVE DAVIES, HOST:

This is FRESH AIR. I'm Dave Davies, in today for Terry Gross. We begin today's show by remembering Supreme Court Justice Ruth Bader Ginsburg, who died Friday at her home in Washington at the age of 87. We'll listen to an excerpt of the interview Terry recorded with Jeffrey Toobin about his profile of Ginsburg, written as she marked her 20th anniversary on the Supreme Court. At that point, Ginsburg was the senior member of the court's liberal quartet. His profile described how she united the four justices so that they spoke with a single voice. Jeffrey Toobin is a staff writer for The New Yorker and chief legal analyst for CNN. Terry spoke to him in 2013, when his profile of Ruth Bader Ginsburg was published.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

TERRY GROSS, BYLINE: Ruth Bader Ginsburg, before even getting to the Supreme Court, made her reputation litigating cases pertaining to equal rights for women. Would you just run through what some of those important cases were?

JEFFREY TOOBIN: Well, it's important to remember where the law was before Ginsburg started taking these cases in the 1970s. In the 1960s, even the so-called liberal Warren court was happy to approve laws that treated men and women differently. There's a famous case from the early '60s where a Florida law said men were required to serve on juries, but women could turn it down.

And this was a murder case involving a woman who was accused of murdering her husband, and she said, look. It's a violation of equal protection to say that, you know, women, who might be sympathetic to my argument, could get out, whereas men had to be on the juries. And the Supreme Court said no, no, no, women's real function is to be at the home, so it's OK.

And there were a lot of these patronizing laws that treated men and women differently. And Ginsburg really started challenging these laws in the 1970s. One of the first important cases involved an Idaho law that said when someone died, and a man and a woman could both be considered to be the executor of the will, the man should be preferred. And the assumption was men knew more about financial affairs. And Ginsburg wrote the brief in this case - it's called Reed v. Reed - and the Supreme Court unanimously said this was based on outmoded notions of relations between the sexes, and it could not stand under the 14th Amendment to the Constitution.

And with that she went after case after case that indicated usually sort of patronizing laws about whether women were expected to work, whether women could expect to be on juries. And she won 5 of the 6 cases she argued and established precedents that stand even today.

GROSS: You describe her approach in litigating women's rights as incremental, case by case, as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.

TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court - or so she thought - and history proved her right, at least in her case - that you don't ask for too much. So she would talk about each individual law on the merits, whether it was a law regarding pensions.

Women were expected to be dependent, so they automatically got a pension when their husbands died, but men were not expected to be dependent, so when their wives died, they had to prove that they were dependent. So she had a man client in that case, and she won that case, again unanimously. And she sort of took on the patronizing assumptions of each individual case, but she didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional.

GROSS: And she thought that she'd make more progress this way? I mean, was that a practical decision or just a belief that every law should be taken on its own terms?

TOOBIN: That's an interesting question, and I'm not sure I know the ultimate answer to that. But I think she clearly thought as a litigation strategy that when you were dealing with a court of nine men, which, of course, it was in those days, it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States. And so, you know, she did think ultimately that all these laws should disappear, and most of them have. But she didn't think the Supreme Court was the right way to rework all of American law in one fell swoop.

GROSS: So, you know, we've been talking about her incremental approach as a litigator to women's rights. She gave a lecture in 1992 that you write about. It's called "The Madison Lecture," which was delivered at the NYU Law School. And talk about this lecture and what it revealed about her legal philosophy.

TOOBIN: Well, the great women's rights landmark that Justice Ginsburg did not argue as a lawyer was Roe v. Wade, the abortion rights case. And that case was litigated and decided very differently from the way Ginsburg's cases were decided. Roe v. Wade, Justice Blackmun's opinion for the court didn't just declare the Texas law at issue unconstitutional. It said that every law in every state that barred early abortions for women was now unconstitutional.

And Ginsburg in this lecture said that she thought the court was wrong to do that in Roe v. Wade. Ginsburg is a supporter of abortion rights, but she thought the court went too far too quickly in ordering every state in the union. And she thought it set off a political backlash that actually wound up hurting the cause of women's rights. I think that's a very debatable proposition, but I think it is indicative of her careful step-by-step approach that's very different from some liberals, like say, Thurgood Marshall or William Brennan or Harry Blackmun, who wrote Roe v. Wade.

GROSS: And she wanted the legalization of abortion to be - she would have preferred that the legalization of abortion be a dialogue with legislators. What did she mean?

TOOBIN: What she meant is that she thinks that political change in the United States by and large comes from the political branches of government, that real change, substantive change that's enduring needs to come through the democratic branches, through the executive, through the legislatures, through the states and that courts imposing social change is risky and should generally be avoided.

So she has written that in the '70s, many states were liberalizing their abortion laws, and it would have been better for the court to, yes, strike down the Texas law but also let the other states progress politically towards the goal of legal abortion rights rather than just having the court impose it. Now, I think historically that's a questionable assumption. It is far from clear that all the states would eventually have legalized abortion, as Ginsburg seems to assume. But I think again, it's indicative of her cautious approach to how the courts should behave, you know, when it comes to controversial social issues.

GROSS: So in talking about Justice Ginsburg's idea that the judiciary should be in dialogue with the legislature, you know, with lawmakers, she kind of demonstrated that when she wrote the dissenting opinion in the Lilly Ledbetter case that - so why don't you just briefly describe her dissent and the argument that she made from bench kind of directly addressing legislators.

TOOBIN: It was - it's really an amazing story about the power of a dissent in the Supreme Court because she lost the Lilly Ledbetter case. Lilly Ledbetter was a woman who worked at a Goodyear factory in Alabama. And she learned, very much towards the end of her career, that she had been dramatically underpaid compared to the men, the comparable men at the factory. And she sued for violation of Title VII, which prohibits sex discrimination. And she won $3 million at her trial.

But the Supreme Court, 5-4, overturned the judgment, saying that because she filed late in her career, she had violated the statute of limitations. She brought her case too late. Now, Ginsburg in her dissenting opinion said that's ridiculous because she didn't know for years that she had been discriminated against, so how could she have sued? And so - and she said the Supreme Court was interpreting Title VII all wrong.

But what she did in her dissenting opinion was, instead of just addressing the legal niceties, she really called on Congress and said, look; Congress, you can change the law. The Supreme Court is merely interpreting your law, so you should rewrite it and make it clear. And as it happened, that opinion came out in 2007 just as the Democrats had retaken control of the House and Senate and just as the presidential campaign was getting underway.

And Barack Obama and Hillary Clinton took this case, the Lilly Ledbetter case - which had actually been very obscure, not many people were following it - but made it a cause all because of Ginsburg's dissent. And to go forward to 2009, when Obama was inaugurated, the first law that he signed as president is now known as the Lilly Ledbetter Fair Pay Act. And a signed copy of that law stands in Ginsburg's chambers with thanks from now President Obama. And it's just a remarkable success story from a case that Ginsburg lost.

GROSS: You know, in reading your profile of Ruth Bader Ginsburg, I was thinking about the interview I just did with Justice Sandra Day O'Connor. So having, you know, read your article, (laughter) your profile of Ruth Bader Ginsburg, on the same day that I interviewed Justice Sandra Day O'Connor, I found them such interesting contrasts.

You know, Ginsburg devotes so much of her judicial career litigating cases, asking for equal rights, for equality for women. And both Ginsburg and O'Connor faced a lot of discrimination when they were starting off in their legal career. They both found it very difficult to get jobs. And Sandra Day O'Connor talked about how when she got out of law school, 40 law firms or more than 40 law firms turned her down for an interview. And several of them said we don't hire women...

TOOBIN: (Laughter).

GROSS: ...Something that wouldn't even be legal to say today. But when I asked her if those - when I asked Justice O'Connor if those kinds of, you know, discriminatory experiences affected her thinking as, you know, as the first woman justice, Supreme Court justice, she said, well, I can't really answer that. That's the kind of question you'll have to (laughter) try to answer. And she also said she didn't really have to deal with a lot of issues directly related to that. Whereas, it seems like with Ginsburg, the discrimination that she faced and her kind of, you know, life's work are so connected.

TOOBIN: Totally. And, I mean, don't kid yourself. Justice O'Connor (laughter) was very aware of sexist treatment that she received both before and after her appointment to the Supreme Court. And, you know, she, like Justice Ginsburg, had excellent radar for being patronized by her colleagues, most especially Justice Scalia. So I think there is a remarkable - there are actually many more parallels between Ginsburg and O'Connor than there are differences, starting with their academic distinction and difficulties getting jobs.

Also, I think, the affection between them was so real. I remember interviewing Justice Ginsburg once during that period before Justice Sotomayor was appointed, where she was the only woman on the court. And she hated that. I mean, she really didn't like being the only woman on the court.

And she liked the fact - and O'Connor liked the fact that they were different in many ways. You know, here you have O'Connor, this tall, outgoing, rangy Westerner, and Ginsburg, this bookish Brooklynite. And they both liked the idea that it showed that women aren't just one way in the world, that women are complicated and different from one another. Yet it's important that women also be represented. And all - both of them are fierce advocates for more women judges and more women in all positions of power.

DAVIES: Jeffrey Toobin speaking with Terry Gross in 2013 about Supreme Court Justice Ruth Bader Ginsburg. Ginsburg died Friday at the age of 87. We'll hear more after a break. This is FRESH AIR.

(SOUNDBITE OF CUONG VU AND PAT METHENY'S "SEEDS OF DOUBT")

DAVIES: This is FRESH AIR. Today we're remembering Supreme Court Justice Ruth Bader Ginsburg who died Friday at the age of 87. We're listening to the interview Terry Gross recorded in 2013 with New Yorker staff writer Jeffrey Toobin, who'd written a profile of Ginsburg as she marked her 20th anniversary on the court. The story was titled "Heavyweight: How Ruth Bader Ginsburg Has Moved The Supreme Court." But it included something surprisingly personal that Ginsburg had shared with Toobin.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

GROSS: You reprint a letter that she gave you that her husband wrote after he was diagnosed with cancer, 10 days before he died. I want you to describe the backstory to this note. And then I'm going to ask you to read it for us.

TOOBIN: Well, my piece in The New Yorker - somewhat to my surprise - turned out to be in part judicial biography and in part love story. This was one of the great marriages I have ever witnessed in person or, certainly, you know, had the opportunity to report about, in part because Marty Ginsburg and Ruth Ginsburg could not have been more different in terms of their personality. Ruth is shy, retiring, bookish, sort of tries to fade into the woodwork at public occasions. Marty Ginsburg was loud, funny, outgoing, irreverent, a great chef, which he was very proud of. And they complemented each other in a 54-year marriage that to all appearances - and as far as I can tell in reality - was really just a phenomenal love story.

GROSS: So I want you to read the note...

TOOBIN: Oh, the letter. OK. So...

GROSS: ...That her husband left for her.

TOOBIN: Well, Marty, despite his ebullience, was frequently sick. He had testicular cancer even when they were in law school. So you know, his health haunted their whole long marriage. And in 2009, 2010, he had a tumor on his spine. And ultimately, he went for treatment. And it didn't - you know, it didn't take it. And he - the doctors told Ruth and Marty that there was nothing more that could be done. When Ruth was about to take Marty home from the hospital - Johns Hopkins Hospital - she found a note in his drawer of his hospital room. And this is what the note said.

TOOBIN: (Reading) My dearest Ruth, you are the only person I have loved in my life - setting aside, a bit, parents and kids and their kids. And I have admired and loved you almost since the day we first met at Cornell some 56 years ago. What a treat it has been to watch your progress to the very top of the legal world. Two exclamation points. I will be in Johns Hopkins Medical Center until Friday, June 25, I believe. And between then and now, I shall think hard on my remaining health and life, and whether on balance the time has come for me to tough it out or to take leave of life because the loss of quality now simply overwhelms. I hope you will support where I come out. But I understand you may not. I will not love you a jot less. Marty.

He died, as you say, the next week.

GROSS: That's a really beautiful letter. And it just made me think about, like - and I don't know the answers to any of this - you know, like why did he leave a letter and not tell her? Probably - you know, in my mind I'm thinking he didn't want to have a conversation about it. He just wanted to let her know in as clear a way as possible. But he's also - and this is amazing for the husband of a Supreme Court justice. He seems to be proposing the possibility of him taking his life.

TOOBIN: Absolutely. And, you know, even though it is written with so much love, there is a lawyer's precision to it as well, where he is proposing various possibilities, not deciding the issue. And, you know, Marty, as well as being a wonderful husband, was, perhaps, the top tax lawyer in the country. And there is - in addition to the great love of a husband, there is a tax lawyer's meticulousness to it as well. And it is such a rich and full picture in one short letter of a relationship. I have to say, the thing that strikes me about the letter also is two little words: you are the only person I have loved in my life - setting aside, a bit, parents and kids.

GROSS: (Laughter).

TOOBIN: And, you know, in those two little words, a bit, there is a lifetime of complexity you can see.

GROSS: But, you know, the letter also seems to me to be saying - if he's proposing the possibility of terminating his life, he's also saying it's my decision, it's not yours.

TOOBIN: And, you know, it just shows, also, that...

GROSS: And it's my responsibility. It's not yours. Like, the responsibility is not on your shoulders.

TOOBIN: That's right. And again, Supreme Court justices deal with issues of life and death all the time, including issues like when ill patients can end their own lives or be assisted to end their own lives. And, you know, this just shows how those sorts of issues are far from abstract legal controversies for most of us. I mean, all of us have - by the time we get to a certain age in life have dealt with these issues of people who are very sick and don't know whether they want to go on. And it is just - it's so painful. And it's so real. And this just shows how these play out in the messy real world.

DAVIES: New Yorker staff writer Jeffrey Toobin spoke to Terry Gross in 2013 about Ruth Bader Ginsburg as she marked her 20th year as a justice on the Supreme Court. Ginsburg died Friday at the age of 87. After a break, we'll remember the late neurologist and author Oliver Sacks, who's the subject of a new documentary that begins streaming Wednesday. I'm Dave Davies. And this is FRESH AIR.

(SOUNDBITE OF STEVE REICH'S "VARIATIONS FOR VIBES, PIANOS, AND STRINGS: SLOW") Transcript provided by NPR, Copyright NPR.