A panel of state and federal judges discussed the career and legacy of United States Supreme Court Justice Ruth Bader Ginsburg at a recent CLE organized by the Nashville Bar Association in partnership with the Lawyers’ Association for Women.
The discussion, held at the Butler Snow law firm in Nashville, was centered on a screening of 2018’s award-winning documentary film “RBG,” which traces Justice Ginsburg’s life and career. Federal Magistrate Judge Alistair E. Newbern posed questions prompted by the film to a panel consisting of Tennessee Supreme Court Justice Cornelia A. Clark, Davidson County Chancellor Anne C. Martin, Tennessee Court of Criminal Appeals Judge Camille R. McMullen, and United States District Court Judge Aleta A. Trauger.
The judges offered their thoughts on Justice Ginsburg’s place in American jurisprudence and society, and also talked about their own journeys as women who had risen to prominent roles in the legal system.
Much of the discussion arose from Justice Ginsburg’s candid descriptions of the obstacles that she faced as she set out on her legal career.
“I became a lawyer in days when women were not wanted by most members of the legal profession,” Ginsburg said in the documentary.
At Harvard Law School, Ginsburg was one of just nine women in her class of over 500 students. That fact put added pressure on her in the competitive law school environment.
“You felt you were constantly on display,” she said in the film. “If you were called on in class, you felt if you didn’t perform well you were failing not just yourself but all women.”
This problem was exacerbated by the unsympathetic attitudes of some at Harvard Law. Justice Ginsburg recalls a dean pointedly asking female students what they were doing taking up spots in law school that could have been occupied by men.
Justice Ginsburg graduated from law school in 1959, many years before any of the judges on the panel did; some of the issues that Justice Ginsburg described in the film, though, were unfortunately still pertinent decades later.
When Justice Clark started at Vanderbilt University Law School, the number of female students had increased significantly from past years, but women were still a distinct minority. That environment still occasionally produced objectionable statements by people in power concerning women and the legal profession.
Justice Clark particularly remembers one teacher who had a demeaning message for female students in a large first-year class one morning.
“’I really don’t know why you women are here,’” Justice Clark recalls the person saying. ‘You need to get married, have children, and not try to take places that were meant for men.’
“That was as late as 1976,” Justice Clark said.
Judge McMullen’s experience at the University of Tennessee College of Law in the early 1990s was different in some ways, but similar in others.
Women made up a large proportion of the student body at the law school by that time, but women of color were still relatively rare. Judge McMullen was one of only three women of color in her class. As she noted, only two of those women, including herself, actually graduated.
“In terms of how I viewed my law school experience, it was very isolating,” she said.
As the judges moved from law school in to their professional careers, they faced similar headwinds.
Both Judge Trauger and Justice Clark remembered how even those law firms that were progressive enough to consider hiring women in the early 1970s still took those potential hires to exclusive men-only luncheon clubs where they would be shuffled into a back room for discussion. These back rooms were colloquially known as “Jane Crow” rooms by the women forced to use them.
“It was disconcerting,” Justice Clark said.
Judge Trauger confronted a male attorney at one of these clubs one day, asking him why men did not want women in the main dining room.
“He said, ‘You know whenever we bring our wives all they want to do is talk about shopping, and you know we need to talk about business,’” Judge Trauger said.
Judge Trauger was incredulous.
“So women lawyers are going to be talking about shopping instead of business?!” she remembers thinking.
For her part, Chancellor Martin called to mind how even in the early 1990s some old-fashioned ideas about women were still commonplace in the legal world. She referred specifically to a survey sent out to judges around that time asking if they thought women litigators should be able to wear pants in court.
“We got answers like, ‘I think it’s fine as long as they fit appropriately,’” Chancellor Martin said. “It is funny to think about how times have changed, and how even what you expect women to look like, much less act like, and what kinds of roles and opportunities they have” are different. “Even though in my generation there were so many great women lawyers and judges who came before us, it was still very traditional. That was just 25, 26 years ago.”
After exploring some of the headwinds that Justice Ginsburg faced in the early stages of her career, the film progressed into a survey of her pioneering achievements for gender equality in the 1970s, which included her successful arguments in cases like Frontiero v. Richardson and Weinberger v. Wiesenfeld.
In the latter case, Justice Ginsburg famously argued in favor of a widower who was seeking Social Security survivors benefits to help him raise his young son. At that time, those benefits were not offered to men upon the death of a spouse.
“His case was the perfect example of how gender-based discrimination hurt everyone,” Justice Ginsburg said in the film.
Justice Clark was particularly impressed with the way that Justice Ginsburg would meticulously prepare her arguments to appeal as much as possible to a given audience.
“What she was so good at that I don’t see lawyers always being good at today was studying her audience in advance, knowing everything about those judges that she could, and coming in with a plan about how to open their eyes, how to make them listen; how to start with a punch line on the front end that will make you understand this is important and allow you to just listen to what she has to say,” Justice Clark said.
Of course, Justice Ginsburg’s courtroom successes raised her profile and helped jumpstart her judicial career, which began in 1980 when she was appointed to the United States Court of Appeals by President Jimmy Carter. She would move on to the United States Supreme Court in 1993 during the administration of President Bill Clinton.
Since ascending to the nation’s highest court, Justice Ginsburg has come to inhabit a place in the popular imagination unusual for Supreme Court justices. Judge Newbern alluded to this fact near the beginning of the CLE.
“Who in this room owns a piece of RBG swag, a t-shirt, a coffee mug, a candle?” she asked the audience. Some audience members raised their hands. “Who in this room owns swag for Chief Justice John Roberts? Former Chief Justice John Marshall? Former Associate Justice Thurgood Marshall?” The lack of hands for these names helped to prove Judge Newbern’s point that Justice Ginsburg has become “the first sitting justice to have achieved such heights of popular iconography.”
The panel grappled with the consequences of that popularity, wondering if it is beneficial for judges to inhabit such roles in American culture.
While Judge McMullen disparaged the type of judicial celebrity created by daytime judge television shows, she pointed out one way in which she believes that popularity like Justice Ginsburg’s can be beneficial.
“You want people to be involved and understand what is going on in the judicial system,” she said. “These sorts of iconic figures bring young people into the field and get them interested early.”
Judge Trauger worried about the unintended consequences of elevating judges to cultural-phenom status in an age of increased partisan polarization.
“I agree it’s kind of a double-edged sword,” she said. “In this day and age with all the political divisions I think it’s probably not productive. I think it’s not productive because we don’t want people to think that courts are political and that courts go along with certain movements.” Instead, she hopes that members of the public will take Chief Justice John Roberts’s recent words to heart, when he defended the impartiality of the nation’s courts by declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Justice Clark shared Judge Trauger’s ambivalence on the subject, contemplating what happens to public perceptions of the judiciary when judges are thrust into the spotlight.
“When judges become stars in their own right, and the focus is on them and not on the opinions they are writing, then I think it can detract from the serious nature of what they do,” she said. That is especially concerning since she believes that people grow up in this country without a deep understanding of the judicial branch’s role in government.
Justice Clark concluded the event, though, not with any warnings about the pitfalls of appellate superstardom, but with an earnest tribute to the profession that she, like Justice Ginsburg before her, chose to pursue.
“As part of talking about Ruth Bader Ginsburg we are always going to talk about the strides that women have made or not made through the years, but it wouldn’t be right if we got to the end of this and I didn’t say, and I think my sister judges would join me, that the law is a great career for women,” she said. “It has been for me the whole time I’ve been in it, even though there have been some days that weren’t as good as others.”
