The question facing Ruth Bader Ginsburg: Stay or go?
Who dreamed up this bit of kismet? How did the stars align to make this spot of New Mexico desert the best place in the world on a late summer evening to be Ruth Bader Ginsburg?
Ginsburg is doing what she always does this time of year. On a respite from one of her passions — the law — she is indulging the others: opera and family. Ginsburg considers the Santa Fe Opera the finest summer opera company in the world. For years, first with her late husband, Marty, and now with her children and grandchildren, she spends a week in Santa Fe, in the foothills of the Sangre de Cristo Mountains, and when she returns east she says to herself: “What happened to my sky?”
There are tours of the countryside and hikes in the hills. There is VIP access to the works of Georgia O’Keeffe. There are sumptuous dinners prepared by her daughter, Jane, that last until 2:30 in the morning.
She has gathered an eclectic and artsy circle of friends, who throw luncheons in her honor for whomever happens to be in town. Kaye Ballard, the singer who toured with the Spike Jones Orchestra in the 1940s and whose Web site advises, “By the way, not only am I still here ... I’m still AVAILABLE,” is here. She snaps photos of Ginsburg on her iPhone and insists on getting her menu autographed.
The hostess, Winnie Klotz, a former dancer and for decades the photographer for the Metropolitan Opera, startles the gathering by grabbing her 84-year-old ankle and lifting it straight above her 84-year-old head. “Do I have your attention?” she asks. Apparently unsatisfied with the response, she slides into a split on the floor of Harry’s Roadhouse.
Ginsburg says later: “She does that all the time.”
At night, there is always opera, which Ginsburg considers “the perfect art form,” and on this night, it is one that brings together Ginsburg’s worlds of law and culture. It is the closing performance of the world-premiere run of “Oscar,” a new opera about the gay playwright and essayist Oscar Wilde and his conviction in 1895 on charges of “gross indecency.”
The opera was nine years in the making and serendipitously debuted four weeks after the Supreme Court’s first rulings on same-sex marriage resulted in important victories for gay rights. No one in the audience needed reminding that Ginsburg was in the majority in those cases.
She slips into the grand, open-air opera house through a side entrance, dressed in an elegant black jacket appliqued with white silk leaves. A tiny figure, hair as always pulled straight back and secured with a scrunchie, she is dwarfed by her security entourage.
The cast has asked to meet her at intermission, and her security bubble bobs against the tide of patrons. The sophisticated Santa Fe crowd keeps its distance. But in the wake of her slow and steady movements, there is the debate that is a constant companion for the 80-year-old leader of the court’s liberals, soon to begin her 21st term.
“We need her to stay forever,” says one woman after Ginsburg walked past.
“Or,” her companion replies, “leave right now.”
There are no set rules for when a justice leaves her lifetime appointment, although for Ginsburg there is no shortage of advice. The first justice nominated by a Democratic president in 26 years when President Bill Clinton chose her, she has been nudged to leave ever since the election of another Democratic president who could choose her replacement.
The court has four consistent liberals, including Ginsburg, and four consistent conservatives, and the justice in the middle, Anthony M. Kennedy, is a Ronald Reagan-nominee who more often than not sides with conservatives. If the court’s membership does not change before the 2016 election, the new president would see a Supreme Court with four of its nine members older than 77, including half of the liberal bloc.
“The reality of the court, and the parties, these days is that Ginsburg ... should know that a justice selected by President Rubio or President Jindal or President Cruz is going to produce a very different nation than one selected by Barack Obama,” wrote political scientist Jonathan Bernstein in The Washington Post. He was not the first.
Every Supreme Court justice, of course, is an expert in how presidential politics and timing and ambition and luck combine to produce a nomination. Ginsburg, for instance, never would have made history as the second woman to serve on the high court if George H.W. Bush had won reelection in 1992.
Even with Clinton in the White House, it was hardly a sure thing. Ginsburg was far better known as the pioneering lawyer for women’s legal rights who won five of six cases at the Supreme Court in the 1970s than for the next 13 years she had spent on the U.S. Court of Appeals for the D.C. Circuit.
“I had a law clerk who said, ‘If you do nothing at all, maybe you’ll be number 25 on the president’s list. So we have to do something to put you forward,’ ” Ginsburg recalled in a recent interview.
Her husband, a nationally known and well-connected tax lawyer, “became my campaign manager,” Ginsburg said. He organized a letter-writing campaign so aggressive it earned press attention.
It shows what a different time it was in judicial politics that Ginsburg — a leader of the American Civil Liberties Union, a believer in the “evolving” Constitution and promoted by the White House as a supporter of abortion rights — was approved by the Senate, 96 to 3.
She is reminded each time she unlocks the door to her chambers; her key is on a plastic keychain with the words, “With best wishes, Strom Thurmond.” The former segregationist and Dixiecrat from South Carolina was one of the 96.
So Ginsburg understands politics but does not feel she faces a deadline to leave so that Obama, whom she admires, can choose her successor.
“I think it’s going to be another Democratic president” after Obama, Ginsburg said. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”
“She doesn’t need my advice,” said retired Justice Sandra Day O’Connor. “She can figure that out. She knows her own circumstances and her own desires and her age and her stage in life. I mean, has she done the things she’d like to do here?”
In interviews, Ginsburg has raised the question of whether O’Connor regrets her decision to leave the court in 2006, at age 75. The nation’s first female justice, now 83, has hardly slowed down since leaving, serving on commissions, spearheading a national movement to revive civics education and continuing to serve on courts of appeals around the country.
She retired when her husband, John O’Connor, was suffering from Alzheimer’s; he died in 2009.
But O’Connor doesn’t look backward. “I don’t regret it for a minute,” she said. “I felt in my case I’d had a fantastic experience, and my husband needed my care. For me, it was the time to do that.”
Ginsburg has appeared frail for years and battled cancer twice, early-stage colon cancer in 1999 and early-stage pancreatic cancer in 2009. She moves slowly, often with her head down, and speaks deliberately, with pauses that leave listeners wondering if she has finished her thought. (She also eats so slowly that Marty Ginsburg once said that if Clinton had invited her for lunch at the White House, rather than an interview, “they’d still be eating.”)
She has ended at least two terms with broken ribs from falls. And at last year’s State of the Union address, cameras caught Ginsburg, dressed in black robe and sparkly necklace she received as one of Glamour magazine’s women of the year, asleep.
But she says doctors have pronounced her cancer-free — both times she battled the disease, she never missed a day of the court’s deliberations — and she works regularly with a trainer, who says she can do 20 “male” pushups.
In Santa Fe, she said she was making do with following the Royal Canadian Air Force calisthenics routine and laughingly told friends that it was not fatigue that caused her to drift off during the president’s address.
There was a big dinner beforehand, she said — “and a very good California wine that Tony Kennedy brought.”
In fact, Ginsburg is a night owl (“Marty called me a bat”) dating to her days at Harvard Law. Not only was she one of the few women in the class, she was also a mother, and her studies ended each day at 4, when she took over care of daughter Jane.
Then Marty was stricken with testicular cancer. She nursed him through chemotherapy and typed his third-year paper after midnight.
“So it was after 2 o’clock that I started whatever was needed for my own classes,” Ginsburg said. “I came to realize that I didn’t need a whole lot of sleep and I could stretch my day.”
She is active at oral argument and is usually the first to pose a question. Her reputation is as the justice who is most familiar with the details of a case and quick to call out an attorney who she believes is shading the facts. In the most recent term, Ginsburg wrote opinions at a faster clip than any of her colleagues.
“We all laugh about how fast she is. And her work is just awesomely good,” said Elena Kagan, who, at 53, is the court’s newest and youngest justice. “In my book, she’s the consummate judicial craftsman, and I learn something from her every time we sit.”
Ginsburg made clear her displeasure with the court’s conservative majority this past term by reading dissents from the bench in five cases; it is rare for a justice to do that even once a term. In most dissents, she is joined by fellow liberals Stephen G. Breyer, Sonia Sotomayor and Kagan.
Ginsburg denies she was trying to send a message: “This court deals with what’s on its plate, and last year we had a lot of cases where I thought the court was egregiously wrong.”
Still, Ginsburg repeatedly has sounded the alarm this summer over an “activist” court under Chief Justice John G. Roberts Jr., if the measure is a readiness to “second-guess the legislature” and overturn laws.
Asked if she agrees with an emerging view of Roberts playing a “long game” of incremental changes to push the court’s jurisprudence to the right — at 58, he is about the same age as Ginsburg’s daughter — she said she doesn’t know.
“I think it’s premature to make that judgment. We’ll know a little more this term.”
Some critics say it is rich of Ginsburg to criticize the court for overturning laws when she made her reputation persuading the justices to reject statutes in which government had no good reason for treating men and women differently. And studies suggest previous courts have overturned just as many laws as the current one. The subjective nature of deciding when a law violates the Constitution was apparent in Ginsburg’s own votes on two of the court’s major decisions recently.
Ginsburg objected when the court tossed a key section of the Voting Rights Act, reauthorized by Congress in 2006. But she was in agreement when the majority overturned the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed in states where it is legal. (Kennedy was the only justice who voted to scuttle both.)
Ginsburg parses the difference this way: Because the 15th Amendment specifically gives Congress the responsibility to protect minority voting rights, it was at the height of its power in reauthorizing the Voting Rights Act.
But it has always been the states’ job to set the rules for marriage, she said. “In the DOMA case, what the court had before it was Congress saying to the states, ‘Never mind what you think or what your family law is, we’re making it uniform for the country,’ ” she said.
Ginsburg did not write either of the court’s same-sex marriage decisions — the other allowed such unions to resume in California — but seems to have become identified with them.
In Santa Fe, David Bowles, a recording producer from California, bought a ticket to the performance in the hope of a chance encounter, and it paid off when he approached Ginsburg in the Opera Club. “I got married on Thursday because of you,” he told her, and introduced his husband, Nicholas McGegan.
The identification was probably sealed in late August, when Ginsburg made the short trip across the street from her Watergate apartment to preside at the candlelit marriage ceremony of Kennedy Center President Michael Kaiser and economist John Roberts.
With the words, “Do you, John, take Michael to be your husband,” she marked a first in the 224-year history of the Supreme Court. There was a murmur in the crowd when she pronounced them married “by the authority vested in me by the Constitution and the laws of the United States.”
Ginsburg’s own marriage lasted 56 years, until Marty’s death in 2010, and is one of those inevitably described as what happens when opposites attract.
He was gregarious and outgoing, a fantastic chef, a brilliant tax lawyer and the life of the party. She is serious and scholarly, able to appreciate a joke but not likely to crack one. She is so unused to the kitchen that when Marty was sick, a friend who brought her a pan of pasta had to warn her not to put metal in the microwave.
Martin Ginsburg and Ruth Bader met as undergrads at Cornell. She was a brain, and he was more interested in being on the golf team, but both were smart enough to be admitted to Harvard Law. Ruth Ginsburg once told a television interviewer that her husband was so full of self-confidence that he figured “the person he picked to be his life partner’s got to be the cat’s meow.”
“I’m amazed at how well she has done without Marty,” said Justice Antonin Scalia. “They were married a long time, a long, long time, and he was devoted to her.”
Equally amazing, to many, is the friendship between the Ginsburgs and Scalia and his wife, Maureen, who spent many New Year’s Eves together — often with Marty cooking venison or quail or wild boar that Scalia brought back from hunting trips.
“If you can’t disagree ardently with your colleagues about some issues of law and yet personally still be friends, get another job, for Pete’s sake,” Scalia said. He believes that he and Ginsburg are especially good at such compartmentalization because of their past as academics.
“When you write a piece for law review, or a book in academia, you always circulate it to your colleagues before it’s in final form, and if they are good colleagues, they read it and make suggestions,” Scalia said. “Ruth and I used to do that with each other’s opinions and welcomed — welcomed — the assistance.”
Such an exchange took place before Ginsburg issued what is probably her most notable opinion as a justice, the 1996 ruling that Virginia Military Institute must admit women. Scalia was the lone no vote, and as is customary, gave Ginsburg an advance copy of his dissent. “It ruined my weekend, but it made my opinion so much better,” she said, by answering Scalia’s objections.
When he is not infuriating her, Ginsburg said Scalia never fails to make her laugh; he calls her “fearless.”
Scalia remembers being with her on one of the cushy summer teaching jobs that Supreme Court justices get, this one on the French Riviera. “She went off parasailing!” he said. “This little skinny thing, you’d think she’d never come down. She was sailing off a motor boat in the Mediterranean, way up in the sky, my God. I would never do that.”
Flying high in the sky is not how the public thinks of Ginsburg, he agreed.
“She has a public image of being dour, and, you know, she’s not like that. ... I mean, she can be tough; you don’t push her, especially on those issues she cares a lot about. But she’s otherwise a very gentle, likable and sunny person.”
There is something of a Ginsburg renaissance at work. Her willingness to take on the conservatives on the court has delighted liberals, who never thought she was quite liberal or bold enough. Students pack her appearances at law schools. The slightly profane Ruth Bader GinsBlog praises her every move; “Notorious R.B.G.” T-shirts are available online.
A new opera, “Scalia/Ginsburg,” will premiere next year, the work of Derrick Wang, a composer and recent graduate of the University of Maryland School of Law. Dueling constitutional interpretations, set to music.
And still, the question: When is it time to leave a lifetime appointment?
“When I can’t do the job, there will be signs,” Ginsburg said. “I know that Justice [John Paul] Stevens [who retired when he was 90] was concerned the last few years about his hearing. I’ve had no loss of hearing yet. But who knows when it could happen?
“So all I can say is what I’ve already said: At my age, you take it year by year.”
Violetta is dying. Ruth Bader Ginsburg is crying.
At intermission, Ginsburg had been a little worried about this production of “La Traviata”; the singing was glorious, but she thought soprano Brenda Rae had been misdirected in Act 1, her portrayal of the doomed courtesan too coarse to provoke proper sympathy.
Ginsburg traces her love for opera back to seeing her first performance at age 11 and recalls a thrilling moment that came decades later. She and two other justices were extras in the Washington National Opera’s production of “Die Fledermaus” with Placido Domingo.
“I was sitting with Tony Kennedy and Steve Breyer on a sofa, and Domingo was about two feet from me — it was like an electrical shock ran through me,” she said.
Ginsburg has often said she would have preferred life as a diva. But when the elementary school music teacher sorted her students, “I was a sparrow rather than a robin.”
If she could sing, she would star as the Marschallin from “Der Rosenkavalier.” It is one of opera’s most sophisticated works, about a woman giving up her much younger lover, and carries lessons about the passage of time, the ability to give up something valued in the name of love, and sacrifice and moving on.
The music stirs Ginsburg, and so, in the end, does “La Traviata,” delivering its usual effect.
“Bravissimo!” she says backstage, where the cast has assembled to receive royalty from another world. “The tears have only just now stopped.”
Robert Barnes is the Supreme Court reporter for
The Washington Post. Researcher Alice
Crites contributed to this report. To comment on this story,