♪ ♪ (theme music plays) DAVID: Hello, I'm David Rubenstein and today we're gonna be in conversation with Jeff Rosen who is the CEO and president of the National Constitution Center in Philadelphia.

We're gonna talk about his bestselling book, Conversations with RBG.

Jeff, thank you very much for coming today.

JEFFREY: Thank you so much for doing this David, really looking forward to it.

DAVID: So your book is a series of conversations you had over how many years with, uh, Ruth Bader Ginsburg?

JEFFREY: I met her in 1991 so it's more than 25 years, nearly 30 years.

DAVID: So, were you taping these conversations over a 25 year period of time or you did it toward the latter part of her career?

JEFFREY: I met her, um, in an elevator when I was a law clerk and the conversations, uh, started informally, but I began taping the conversations one, once I became a legal journalist and most of the conversations were public, they were before audiences.

DAVID: And did she approve the text before she passed away?

JEFFREY: She did, and this is really important and it's one of the most inspiring things that I could imagine.

So I sent her the manuscripts, and then she got sick for the first time and I didn't know whether she'd be able to turn her attention to it.

Ten minutes after the Supreme Court term ended, I got an email from her saying, "The manuscript is ready and I'll have it for you on Tuesday."

And I showed up at the Court and she gave me the manuscript and every page was marked up with her beautiful pencil.

And I was literally stunned, I said, "How did you have time to do this?"

And she said, "Well, I like to meet my deadlines and I told you I would."

"But how did you do it?"

"In the back of cars when I was at the movies."

She is so attentive to detail, her, she's the most fearsome copy editor imaginable, and every single word that is in the book was carefully reviewed by her and that's why it's so meaningful to have her in her own voice.

DAVID: So let's talk about this extraordinary career.

Um, she grew up in New York?

And did she have any siblings?

JEFFREY: She had a sister who died when she was, before she was two years old.

Her sister was six and in our last interview, which is in the, paperback edition, I asked her about the sources of her empathy 'cause she's had this extraordinary compassion and concern for other people, and she said seeing the effect of her sister's death on her parents when she was so young made her realize the importance of grief and empathy.

So she didn't remember her sister but she remembered the effect on her parents and that shaped her very dramatically.

DAVID: What about her mother, how long did her mother live?

JEFFREY: Her mother died the day that she was, r, r, right bef...

The day before she was supposed to graduate from high school.

Her mother was the most important influence on her life.

She would always repeat the advice that her mother gave to her, uh, "Overcome unproductive emotions like anger, remorse, and jealousy.

They are not useful, they will distract you from productive work."

And it's a life lesson that I think about all the time, of course it's the hardest thing in the world to do, but she did that better than anyone I've ever seen.

Just mastering unproductive emotions so she could focus, like a laser, on being present in the moment and doing her work.

DAVID: So she went to Cornell, how did she do as a student there?

JEFFREY: She was first in her class.

DAVID: And did she say when she went to Cornell, "I wanna be a lawyer and go to law school"?

What was her ambition when she went to Cornell?

JEFFREY: Uh, when she went to Cornell, I don't know when she decided to be a lawyer, but she met, um, Marty Ginsburg at Cornell.

He was going to Harvard Law School, and she told the dean at Harvard that she had gone to law school 'cause she wanted to be able to understand Marty's work, and then she felt incredibly embarrassed that she'd made such a apologetic statement about, you know, why she was there when challenged 'cause she was one of only nine women in the Harvard Law School class.

Uh, but, uh, and she, she was just as intellectually engaged as Marty.

They went together and they began Harvard Law School.

DAVID: And, uh, Harvard Law School, how did she do academically?

JEFFREY: Well there were only nine other women in the class and 500 men and although, uh, it, and it wasn't ranked 'cause she left before she graduated, she did so well that she got a spot on the Harvard Law Review because of her high GPA.

And some think that...

Some estimated that she was at least second in the class.

DAVID: So, she did two years of Harvard Law School and then her husband, who was ahead of her, graduated and they got a job in New York.

Um, so she wanted to finish her last year with her husband, who I think was ill at the time, so she wanted to be with him and transfer to Columbia Law School but still graduate from Harvard Law School.

Uh, what did Harvard Law School say about that?

JEFFREY: Harvard Law School said, "No, you have to be here in person."

Uh, they later regretted that, uh, decision when they gave her an honorary degree.

So as a result she transferred to Columbia, and she graduated first in her class.

DAVID: So if you're the top of your class at Harvard Law School and you are first in your class at Columbia Law School, I assume you get lots of job offers.

So how many did she get?

JEFFREY: Well, she got, uh, zero job offers because she was a woman.

Basically no law firm would take her because of her gender.

Uh, this helped her get a job in Sweden, working on a book on Swedish civil procedure.

She couldn't get a Supreme Court clerkship even though the dean of Harvard Law School, Albert Sacks, proposed her to Justice Frankfurter, but Frankfurter said the Court wasn't ready to hire a woman.

So, in the end she was only able to get a clerkship with a District Judge, Edmund Palmieri, on the Southern District of New York because her Columbia professor Gerald Gunther told Judge Palmieri that he'd no longer recommend any clerks to him if he didn't take Ginsburg.

DAVID: All right, so she got the clerkship and then she got a lot of job offers then, right?

JEFFREY: Well not, uh, really.

She didn't go to law firms instead she began teaching and she became a, uh, professor at Rutgers Law School.

Uh, and based on her work on Swedish, Swedish civil procedure, she wrote, uh, the definitive textbook on Swedish civil procedure, another incredible example of just mastering a subject from scratch and completely writing the definitive work on it.

DAVID: If you're first in your class at Columbia Law School, I'd assume she could've taught at Columbia Law School right?

They made her an offer?

JEFFREY: Well, but not until after she'd done a lot of other work.

She basically had to first go to the ACLU and she began by doing volunteer work for the New Jersey ACLU because, again, even the ACLU wasn't hiring women, uh, who were top of their class.

Then Aryeh Neier, who was the Executive Director of the ACLU, was looking for someone to head the new Women's Rights Project that he was gonna establish, he offered her the job.

But then, at that point, Columbia Law School was intent on appointing a woman to be its first tenured female faculty member.

They offered the post to Ruth Ginsburg, she wanted to accept so Neier worked out an arrangement with the dean of Columbia, Michael Sovern, that allowed her to go to the ACLU and become the first tenured woman at Columbia Law School.

DAVID: So, she began to do a lot of work with the ACLU on its gender equality project and, uh, what was the thesis behind, uh, what she was trying to do in terms of changing the laws on gender?

JEFFREY: The basic idea was that discrimination because of sex disadvantaged men, as well as women, by limiting their opportunities based on stereotypes about the way men and women are.

So, that's why she actually represented men as well as women 'cause she thought the mostly male judges of her time would be more likely to sympathize with male plaintiffs.

One case that she loved that sort of sums up her whole strategy was called the Wiesenfeld case.

There's a guy, Matthew Wiesenfeld, whose wife dies and he wants to care for his infant son, uh, Jason, um, who, uh, he can't 'cause the social security laws in that time only give survivors benefits to women, not men on the assumption, the stereotypical assumption, that only women are gonna be caregivers.

Ruth Ginsburg challenges this law saying men, as well as women, should be able to care for their infant sons and su, persuades the Supreme Court to strike down the gender law and that became the model for striking down other laws that while purporting to favor women, actually imprisoned them in stereotypes.

DAVID: Now her role model, I thought, was Thurgood Marshall based on your, the interviews because he had done similar kinda processing, getting to Brown v. Board.

Can you explain why he was a role model?

JEFFREY: He was indeed a role model, as she noted, um, when Thurgood Marshall decided to challenge school segregation in Brown v. Board, he didn't begin with public schools 'cause that was the most controversial desegregation, lots of people had their kids in public schools and racist parents didn't wanna desegregate.

Instead, Thurgood Marshall began with law schools, fewer students.

Or public accommodations, swimming pools and so forth.

Slowly building the precedent that "separate but equal" is inherently unequal, which he did in a case called Sweat v. Painter, which was a law school case.

He then was able to argue for school desegregation once public support was willing to embrace it.

And that for Justice Ginsburg, Judge Ginsburg, Ruth Ginsburg then, was very important that courts are not gonna get too far ahead of society.

If you move incrementally, step-by-step, slowly creating the building blocks, courts can nudge or codify social change but they cannot precipitate it.

DAVID: When she was beginning to get ready to argue her first case, or any of the cases, uh, in the appellate courts, did the men say, "Well look, this is really a man's job to argue these cases and maybe we should argue these," or did they always say, "You should argue them?"

JEFFREY: I think at the ACLU she was well supported by her colleagues, uh, but she was among the first women to argue before the Court and her oral arguments are legendary, uh, v, viewers can listen to them online, they're all, uh, easily available.

And in her Frontiero argument, the Frontiero case, uh, which was really important, she spoke for nearly five minutes uninterrupted, which at the time was unheard of, uh, because she was so incredibly precise.

Although we later saw that Justice Harry Blackmun took notes on the oral argument and he wrote next to her argument, this is offensive but it's a sign of just the views at the time, uh, "Woman Jew" or something, that's what he put down as his shorthand, uh, uh, for her.

But in fact, she was considered one of the most, uh, effective Supreme Court arguments of her time.

DAVID: Now when Jimmy Carter was elected President in 1976, and I worked in the White House so I was not involved in this area, um, he noted that there were relatively few women and relatively few minorities in the Federal Bench.

Uh, he appointed a number of women including Ruth Bader Ginsburg.

At the time, though, how many women were there on the, uh, Federal Court when Ruth Bader Ginsburg actually got a, a Court appointment?

JEFFREY: Gosh, I don't have the exact number, you, but you know, David that how much of a priority it was for President Carter.

He was the first president to make the appointment of women and diverse candidates a priority, and she was part of a wave of women who ended up on the D.C.

Circuit including Pat Wald, uh, who has had a very distinguished career.

Uh, but it was a fight and she had to get political support from New York senators and, uh, it wasn't easy but she, she got appointed and served with great distinction.

DAVID: So, when she got appointed to the D.C. Court of Appeals, um, she had a colleague there named, Judge Scalia, uh, who did, she didn't agree with very much intellectually but, uh, did they become fast friends and what was the basis of that friendship?

JEFFREY: They became incredibly close friends.

Uh, the f... One basis of their friendship was opera, they both loved opera and bonded over music.

Also, as she told me and many others, um, I, he, uh, "Sometimes he drives me crazy but he makes me crack up."

They just laughed together.

He had a great sense of humor and they bonded over humor.

Later they bonded over their shared love of the Court as an institution, and they would have New Year's dinner together every year.

Um, Marty was an amazing cook, he would cook, uh, Justice Scalia would sing around the piano, he called it the really famous three tenors.

For them, ideological disagreement was less important than their shared affection for each other and their shared love of the Court and the Constitution.

DAVID: Now you mentioned earlier her husband Marty Ginsburg, uh, was he an average lawyer or was he a, an exceptional lawyer?

JEFFREY: He was one of the most respected tax lawyers of his time.

Anyone who had a serious tax, uh, predicament would be lucky to get Marty.

He practiced at Freid and Frank, the law firm, and then when Ruth Ginsburg moved to D.C. to be on the D.C.

Circuit he became a professor at Georgetown Law School.

Ross Perot, who was one of Marty's grateful clients, funded Marty's chair at Georgetown and he wrote definitive books on tax as well.

DAVID: Marty Ginsburg was also somebody that, um, I would, I think you would agree, uh, had a reputation for being different than many men of his generation.

Um, he was willing to do the cooking, he was willing to deal with the child rearing, what did she say about having a husband who was willing to do all those things?

JEFFREY: She said it was, he made her career possible and she said that women would not be truly equal until men acted like Marty.

She gave me this lesson in a really unusual way.

I wrote a piece about her in the New York Times Magazine in 1997 and she didn't wanna talk to me for the piece on the record but she invited me to just look around her chambers and see, describe it in any way I liked.

So and then she just disappeared.

So I'm looking around, it's kind of awkward and then she calls from her car and says there's one picture she wanted to make sure I saw, and it's of her son-in-law holding her infant grandson, Paul.

And she said, "That is my hope for the future."

And I thought it was kind of a platitude, but then I read her speeches and I realized she meant her hope for the future is when men take equal responsibility for child rearing the way her son-in-law did and the way Marty did, and she said until that happens women will not have true equality.

DAVID: So President Clinton, uh, is President of the United States and he has an opportunity to fill a, uh, Supreme Court vacancy.

Who were the candidates that he considers?

JEFFREY: So the candidates at the top of the short list were Mario Cuomo and Laurence Tribe.

And I went, I was a young journalist at The New Republic magazine, I went to a lunch for the law clerks in the U.S. Court of Appeals in D.C., and Justice Scalia had been there a few weeks earlier and someone asked him, "If you had to be trapped on a desert island for the rest of your life with Mario Cuomo or Laurence Tribe, who would you choose?"

And he fired back, "Ruth Bader Ginsburg."

And I wrote that up in The New Republic in a piece endorsing her as the best candidate, um, that Senator Moynihan and she later said, "had some small role in bringing her to Clinton's attention and pushing her over the edge."

And then she told the story at Justice, uh, Scalia's memorial service and said, weeks after that anecdote was published the, the President chose her.

So, it's an amazing story of her confirmation and the most amazing part about it is that as President Clinton said to Senator Moynihan, the women's groups were against her.

Some women's groups thought that she was too moderate 'cause she criticized the reasoning but not the result in Roe v. Wade, and it took the concerted efforts and I was just one of many unsolicited voices who were talking about how great she was.

It took a, it took a lot of, um, uh, pushing to bring her over the edge.

DAVID: Her, uh, objection to the way that the opinion was written by Justice Blackmun was that he kinda found a, right of, privacy and that she didn't think that that, like, that was really the right reasoning.

Is that right?

JEFFREY: That's exactly right.

She said that that Roe would've been better decided on the grounds of women's equality, that basically restrictions on women imposed burdens on them that are not imposed on men, and by forcing women to bear unwanted children, abortion restrictions deny them the same opportunities to choose their life path as man have.

And that reasoning was so f, f, far seeing, so prophetic, that the Court eventually adopted a version of it when it, when it upheld Roe v. Wade years later in the Casey vs.

Planned Parenthood case.

She had a second objection to Roe, not only the reasoning but also the breadth of the case.

She said the Court should have struck down the extreme Texas law, which had no exceptions even for the life or health of the woman, but not create an elaborate three trimester series of abortion regulations that would govern all stages of pregnancy.

And, uh, she thought that had the Court not ruled so broadly, society eventually would have liberalized abortion laws on its own and politics would have taken care of protecting abortion rights.

She was criticized for that.

I think that she was correct and history vindicated her faith.

DAVID: So when she got on the Court, did, uh, all the male justices tell her how the Court worked and everything or who was her patron or who was the person who helped her adjust?

JEFFREY: Justice Sandra Day O'Connor, who had served as the on, the first woman on the Court, uh, and immediately they dealt with practical questions like there still wasn't a women's restroom near the conference room where the justices met to discuss cases.

And as soon as Justice Ginsburg arrived finally one was created equal in size, to the men.

After her first opinion Justice O'Connor passed her a note saying that this is the first of many, um, it's a, it's a good one, and when, uh, it came time to decide gender discrimination cases that Justice Ginsburg cared a lot about, when Chief Justice Rehnquist tried to assign the opinion to Justice O'Connor, Justice O'Connor said this should be Ruth's and, uh, RBG appreciated that so much.

DAVID: Now, uh, when Justice O'Connor stepped down, uh, Ruth Bader Ginsburg was not in the majority as much as she maybe had been on some cases, uh, some issues before.

So she started writing a lot of dissents, is that something she consciously did because she thought it would educate people?

JEFFREY: Yes, it is.

And it was a big change for her.

When she was appointed, people thought she was a judge's judge, a judicial minimalist.

Some progressive groups thought she was too conservative.

But once Justice O'Connor stepped down and the composition of the Court changed and she found herself in the minority position, she did think it was her job to educate people.

And then, a few years later, Justice O'Connor left in 2006, in 2011 Justice John Paul Stevens stepped down and Justice Ginsburg became the senior associate justice for the liberal group.

And that meant that she had the power, whenever she was in the majority, to assign the decision or if she is in dissent, she could create a single dissent and persuade all the liberals to speak with one voice.

And that was really when she started becoming the Notorious RBG.

It was in the Shelby County case in 2013 where she criticized the Court's decision to strike down part of the Voting Rights Act, inspiring a young NYU law student to create a meme that went viral, uh, comparing her to the rapper The Notorious B.I.G., and then she just fired out this series of galvanizing dissenting opinions that created the, uh, Notorious RBG that we know today.

DAVID: So did she write those opinions or did she have her law clerk write them and she would edit them, how did she do that?

JEFFREY: Well... Like almost all the justices her law clerks did the first draft, but it's clear how thoroughly RBG rewrote the opinions 'cause she has such a distinctive writing style.

You'll see it's very condensed and compressed.

She'll say things... She wouldn't say the f, the spirit of the moment she would say the moment's spirit.

She got her writing style from none other than Vladimir Nabokov, who was her literature professor at Cornell, and he taught her to pay really close attention to individual word choice.

And she was always so keen on saying exactly what she wanted and precisely the words that she wanted.

So it's her opinions are entirely her own.

They're very distinctive and her, her voice just shines through.

DAVID: Now the justices, um, like to avoid politics if they can and they like to, um, get along with each other if possible.

Some are social friends, some are not.

But what was the reaction to the Court after Bush v. Gore, did that split the Court right down the middle because it was seen as so political, and what was her reaction to that decision?

JEFFREY: She was furious at the decision, uh, I know because, uh, we talked about it.

I wrote a piece for The New Republic called "Disgrace" and she signed the cover very enthusiastically, endorsing the idea that it was a disgrace.

And she, uh, said, uh, that she thought it was a complete outrage.

However, and this is striking, at Justice Scalia's memorial service, she tells the story of how after Bush v. Gore comes down she's sitting at the Court seething, furious at what she thought was an outrageous decision, Scalia calls her up and says, "Ruth, what are you still doing at the Court?

Go home and take a hot bath."

And she said, "Good advice that I promptly followed."

So she, she did get over it, um, I'm not sure Justice David Souter ever did.

You know, he wrote a piece for The Rhodes Scholar Alumni Magazine, and not that many people noticed it, uh, but he said that, um, "I've, my Court this, you know, recently decided Bush v. Gore.

I don't think I'll ever look at my colleagues in the same light again."

And he resigned, he, he was very, very upset about it.

She did get over it but she was cool-eyed about the seriousness of the divisions on the Court, she, she didn't have illusions about the, their seriousness but at the same time she did maintain her deep friendship with Scalia.

Their love and affection for each other continued and the justices went on.

DAVID: So, um, she had several bouts with cancer and other medical, uh, problems.

Why did she not just say, "Look, I got problems medically I'll just step down from the Court and I don't have to go through all of the medical treatments while, as well as having to deal with the Court, uh, challenges."

JEFFREY: I, I don't re, I, I, I don't know if it crossed her mind but she never seriously considered it.

Uh, she loved the job and thrived at it, her sense of duty compelled her to push on the same way that two days after Marty died she was back on the Supreme Court bench 'cause she said that's what he would've wanted her to do.

And then, of course, I asked her in 2013, um, after the Democrats had lost the Senate, you know, what it, what was her response to the Democrats including scholars who were saying that she should've stepped down and she said, "Well, who better than I could've succeeded me."

And once the Republicans had taken the Senate that became very true.

And then of course, once President Trump took office it was clear that probably no one might've been, uh, uh, confirmed by a Republican senate to replace her.

So that was, that was her justification of why she didn't step down.

DAVID: And, um, let's talk about her exercise routine which got a lot of attention.

Um, did she really exercise that much with a, I... Was it a court official who did the exercising with her or who was her exercise official?

JEFFREY: Her great trainer, Bryant Johnson who wrote the RBG Exercise book, was a, um, court official marshal at the U.S. Court of Appeals in D.C. who did exercise training on the side, and she started to work with him and just bossed it up so much.

I asked her about those exercises back in 2013 before they became famous and she got them from something called the Canadian Air Force Manual which was an exercise manual dating back to the '50s, but they were really tough and involved a lot of aerobics and a lot of crunches, uh, sit ups, push-ups.

And she was so tiny and weighed so little but just iron will, iron frame, and her exercises are awe-inspiring.

DAVID: Now when you interviewed her what she was most proud of, what would she say, "This is my legacy, this is what I'm most proud of having achieved.

"” JEFFREY: Well, the Supreme Court opinion that she was most identified with and she obviously was very proud of it, was the Virginia Military Institute case which struck down "separate but equal" supposedly military schools, basically said that VMI could not exclude women from its admission even if Virginia tried to set up a separate school for women.

And for her that was the culmination of a case that she'd argued back in her advocacy days in Philadelphia, where the public schools were separate.

But her broader legacy I think, as she put it so beautifully when I asked her, was to have championed a more embracive Constitution.

To have insisted that the Constitution was always embracing previously excluded groups.

Not only women but also immigrants, LGBTQ people, minorities, uh, not just grudgingly, as she put it, but with open arms.

DAVID: So, what do you think, uh, RBG's legacy will be in the end, uh, five years, ten years, 15 years from today?

JEFFREY: I think that 100 years from today she will be considered one of the most important advocates for gender equality of our time.

Think about the handful of women in American history who fought to fulfill the promise of the Declaration of Sentiments in 1848, which declared that all men and women are created equal.

And those brave women, uh, starting with Elizabeth Cady Stanton, Ida B.

Wells, uh, lawyers like, uh, Pauli Murray and Dorothy Kenyon, uh, all culminated in her advocacy before the Court.

And she achieved so much even before she joined the Court by persuading the Supreme Court to embrace gender discrimination as a classification nearly as bad as racial discrimination.

And then on the Supreme Court she became this galvanizing voice of principle liberalism, arguing always for a more embracive and inclusive Constitution.

DAVID: We've been in conversation with Jeff Rosen, who is the CEO and president of the National Constitution Center, about his book on Conversations with RBG.

Thanks very much, Jeff.

JEFFREY: Thank you, David.

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