07.09.10

Ruth Ginsburg's Abortion Worry

At the Aspen Institute, Justice Ginsburg hailed Elena Kagan, poked at Antonin Scalia—and warned abortion rights for poor women could be in peril.

At the Aspen Institute, Justice Ginsburg hailed Elena Kagan, poked fun at Antonin Scalia—and warned abortion rights for poor women could be in peril.

Despite persistent rumors that she’s ready to step down from the Supreme Court, Ruth Bader Ginsburg didn’t sound like she’s going anywhere anytime soon in a rare public interview at the Aspen Ideas Festival.

“Maybe hope springs eternal, but I try to be as persuasive as I can with my colleagues,” the 77-year-old justice told a rapt audience that included retired justice Sandra Day O’Connor, under the gentle grilling of George Washington University law professor Jeffrey Rosen, who hailed Ginsburg as the Thurgood Marshall of the women’s movement. “And sometimes I’m successful and sometimes I’m not. I will continue to try.”

Tiny and frail—100 pounds, if that, and sorely tested by bouts of colorectal and pancreatic cancer over the past decade, to say nothing of the recent death of her husband of 56 years—Ginsburg, who has served on the high court since 1993, remains one tough lady.

“We will never go back to the way it once was,” Ginsburg declared about abortion, to huge applause.

“I’m just fine,” she announced, to raucous applause.

In a wide ranging conversation, Ginsburg also:

*asserted that abortions will continue to be safe and legal for women who can afford them, but possibly not for poor women, whether the 1973 Roe v. Wade ruling survives or not.
*warmly welcomed her old friend Elena Kagan as court’s third female member, never mind that the Senate has yet to confirm her.
*tweaked her sharp-tongued colleague, Antonin Scalia, for the occasional “invective” in his opinions.
*approvingly quoted her late husband Martin Ginsburg’s mother on successful relationships: “Marty’s mother, on my wedding day, said, ‘I’d like to you the secret of a happy marriage: It helps sometimes to be a little deaf.’ And I can tell you that that advice has stood in such good stead, not only with Marty, but with my colleagues on the court.” She said her late husband, with whom she had two children, “was the first boy I ever met who cared that I had a brain.”

Ginsburg was introduced to the crowd by an admiring O’Connor, who became history’s first female justice when she was appointed by Ronald Reagan in 1981. The 80-year-old O’Connor noted that Bill Clinton “exercised very good judgment” in picking Ginsburg for the court, and praised her “inimitable flair for legal decision-making and her excellent writing skills. She’s been a great member…I know that she is looking forward to getting another woman on the court.”

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Ginsburg told the crowd she first met Kagan when she was a law clerk for federal appeals court judge Abner Mikva, but really got to know her as an aide in the Clinton White House, when then-senator Joe Biden, chairman of the Senate Judiciary Committee, asked Kagan to help prep him for Ginsburg’s confirmation hearing.

“I’m so glad that Elena is joining us,” Ginsburg said. “I got to know her—or she got to know me—when I was nominated by President Clinton…and Joe Biden borrowed Elena and asked her to read every opinion I ever wrote and every speech I ever gave…When she was dean of Harvard Law School, she would pick one of my law clerks each term, and I have been exceedingly well served by the law clerks she chose.”

Ginsburg defended Kagan’s qualifications when Rosen asked about criticism from some Republicans that she has never served as a judge and has scant experience in court.

“The very first court that Elena ever argued before was the U.S. Supreme Court, and she was superb,” Ginsburg said. “She was wonderful in every argument she gave.”

Noting that as a law professor, Kagan once wrote that “she wished I and Steve Breyer had been a little more revealing” during their confirmation hearings, Ginsburg quipped: “She’s older and wiser now. She steered the same course that we did. I thought she was terrific.” She added that “it takes two qualities” to get through a Senate confirmation hearing. “One is patience, and the other is a sense of humor—and she showed both.”

On the landmark Roe v. Wade decision, which made a first-trimester abortion a constitutionally protected right, “We will never go back to the way it once was,” Ginsburg declared, to huge applause. “It wasn’t all that controversial. It was a 7 to 2 decision with only two dissenters.” If the court were to change its mind, “there won’t be any real change for anyone in this audience or any daughters of anyone in this audience,” Ginsburg said. “The only women who would be truly affected are poor women. Because even at the time before Roe, women who wanted abortions could have a safe, legal abortion…Women could travel from one state to another and didn’t have to go to Japan or Cuba…Whatever the court may do, it’s only the poor women who will suffer. When people realize that, maybe they will have a different attitude.”

When Rosen asked if she considers herself less “pro-business” than some of her colleagues, Ginsburg riposted: “I thought you were going to ask me about how did I let Jeffrey Skilling off the hook in the Enron case.” Last month, Ginburg wrote the unanimous opinion ruling that Congress’ “honest services” law was too broadly applied in the former Enron executive’s fraud and conspiracy conviction. “Congress had written a statute that made it a crime to deprive another of ‘honest services.’ It was so vague that you could make that a criminal offense. So I don’t regard myself as pro-business or anti-business. I just call them as they come, as best as I can.”

She agreed with Rosen that Scalia is one the more “activist” justices on the court, voting strike down federal and state laws with much more frequency than the relatively restrained Ginsburg.

In a reference to Scalia’s poison pen in comparison with her own rhetoric, “I did not say about the other side, ‘This opinion is profoundly misguided’ or ‘This opinion is not to be taken seriously,’” which Rosen pointed out were two trademark Scalia jabs at O’Connor, who replied, “Sticks and stones will break my bones…”

“I never used that kind of invective,” Ginsburg added.

But it was also clear she really likes and enjoys Scalia.

“I think Sandra will back me up on this: Of all the places I’ve worked, all the faculties I’ve been a member of, there is no workplace that I found more collegial than the U.S. Supreme Court. We are, in a real sense, a family. And no matter how strongly we disagree one important questions—and we do—we genuinely respect and like and care about each other.”

Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.