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Transcript: Into Ruth Bader Ginsburg and the ACLU Years

The full episode transcript for Into Ruth Bader Ginsburg and the ACLU Years.

Trymaine Lee: Ruth Bader Ginsburg died on Friday at the age of 87, on the eve of Rosh Hashanah, the Jewish New Year. She spent 27 years solidifying her place in history as an associate justice of the United States Supreme Court.

Bill Clinton: I am proud to nominate this path-breaking attorney, advocate, and judge to be the 107th justice to the United States Supreme Court.

Lee: It was June of 1993 when President Bill Clinton stood in the rose garden to introduce his nominee. Ruth Bader Ginsburg would become the second woman to join the country's highest court, following Sandra Day O'Connor in 1981, and the court's first Jewish woman justice.

Ruth Bader Ginsburg: The announcement the president just made is significant, I believe, because it contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one at a time performers.

Lee: As she accepted the nomination, Ruth Bader Ginsburg dedicated the moment to her mother, who died just as Ginsburg was graduating high school.

Ginsburg: I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve, and daughters are cherished as much as sons.

Lee: And in her Senate confirmation hearings, she passionate defended women's rights, including the right to an abortion.

Ginsburg: This is something central to a woman's life, to her dignity. It's a decision that she must make for herself.

Lee: For Justice Ginsburg, the fight for women's rights was lived. Decades earlier at Harvard Law School, she was one of only nine women in her class of 500. In her last year she transferred to Columbia Law, following her husband, Marty, to New York for his job as a tax attorney.

Despite graduating first in her class in 1959 with stints on the Harvard and Columbia Law Reviews, no law firm in New York would hire her. Ginsburg has said that she, quote, "Struck out on three grounds." She was Jewish, a woman, and a mother.

So she clerked and eventually taught at Rutgers and Columbia Universities before joining the American Civil liberties Union. And it's those years that would become foundational not only to her career in public service, but to the effort to end gender discrimination in America.

They began in 1972 when Ginsburg signed on as the founding director of the ACLU's Women's Rights Project. She began serving as general counsel for the organization in 1973. At the ACLU, Ginsburg argued over 300 gender discrimination cases, six of which came before the Supreme Court.

She won five of them. Ginsburg left in 1980, appointed by President Jimmy Carter to the U.S. Court of Appeals for the District of Columbia. But in those years with the ACLU, she set the stage for some of the most important legal victories of women's movement.

Ginsburg: Sex, like race, has been made the basis for unjustified, or at least unproved assumptions concerning an individual's potential to perform or to contribute to society.

Lee: I'm Trymaine Lee, and this is Into America. Today, as the nation mourns the passing of Justice Ginsburg and descends into political gamesmanship over the Court's future, a look at this critical part of her legacy, her years with the ACLU.

Kathleen Peratis was a friend and former colleague to Ruth Bader Ginsburg. Their working relationship began in 1974, when Kathleen joined the ACLU and succeed Ginsburg in her role as director of the Women's Rights Project. I asked Kathleen about the first time she met Ruth Bader Ginsburg, just a year earlier.

Kathleen Peratis: It was in 1973. I had been practicing law for a couple of years. I lived in Southern California, and The Ford Foundation sponsored a conference of feminist litigators, of whom there was, you know, a handful or two. Ruth was not famous. Nobody was famous.

Women's rights law was sort of percolating, but it was a very niche practice, and we had as many failures as successes. But we felt like we were on the march. And that's when I met her. And she asked me at that conference if I would be interested in applying for the job of succeeding her at the ACLU. And I moved to New York, and I've been here ever since.

Lee: Wow. And so at that point she wasn't, she didn't enjoy the kind of celebrity status in the legal world, or the world in general. But was she a big deal in your circle? Like, did she stand out?

Peratis: Yeah. She was definitely a big deal, because she had already won a couple of cases by that time. And she's a very powerful personality. She was small, and quiet, but with a great deal of dignity. You knew when you met her that this was not somebody that you messed with. She was very strong. She was dear. She wasn't nasty or mean ever. But she had a lot of rays of power exuding from her, even then. And she was young. I was under 30 and she was under 40.

Lee: Wow.

Peratis: She was known in this sort of rarefied circle, which got bigger and bigger as the years went on. But she was known as the force to contend with in constitutional law. There was lots of other stuff going on in women's rights law, but in constitutional law, she was already at the top of the heap.

Lee: So let's go back a little bit before she handed the baton to you and asked you to join the ACLU. What drew Justice Ginsburg to the ACLU in the first place? Give us some context around the co-founding of the Women's Rights Project.

Peratis: She was a civil libertarian. She was a liberal. She was interested in constitutional law. But she had this sort of pivotal moment when her husband brought to her a tax case in which a man had been discriminated against because of his gender. And Marty came to hear about it and brought it to Ruth.

And they did this case together. It didn't go to the Supreme Court, but it was a tax case. It was gender discrimination, and it was successful. So I believe that at that moment, which was in 1970, she got the idea that there were dragons to slay in this area of discrimination against women, official discrimination against women by the government, and especially by the federal government. And she took another case the next year and was successful. And that just opened the path. I'm not sure it would've happened if Marty hadn't brought her that case in 1970.

Lee: Wow. And so when you think about those early days in the '70s, we all hear about how, you know, back in the day women couldn't even open up a credit card or a bank account without their husband's permission, and a bunch of other, you know, very unfair practices socially and legally. But what was the general state of women's rights and the activism around women's rights at that time?

Peratis: Well, the state of women's rights was pretty dismal, but the activism was extraordinarily electric, and definitely moving the public. Some people think, I think, that Ruth won a few cases in the Supreme Court and then women's rights law was established and that was that.

That's not exactly accurate. There was a great deal of foment going on. There was activism in the streets, and as Ruth often said, some variation of, "You have to make us do it." There has to be a strong public presence if there's going to be a change in the law.

The women's movement, including marches in the streets, including lots of legislative activism, including lots of activism in the courts, that's what started moving the tide. It wasn't her alone, it was a lot of people, as she acknowledged over and over again. But she established the most prominent frame, which was saying, "The federal government can't do this anymore."

Lee: And let's talk about the Women's Rights Project, which was central into this bigger push for women's rights. And let's go to 1971 with the case of Reed v. Reed. Ginsburg wrote the plaintiff's briefs in that case. But explain to us, like, the significance and the outcome of that case.

Peratis: Well, it was the first case that Ruth and the ACLU took to the Supreme Court. We were amicus. We weren't representing the party. But it had to do with whether it was constitutional to prefer men as administrators of estates. And it was the first case she took.

She said, "There's no reasonable explanation for saying that men are presumptively better to be the administrators." And that was a very important case. There was not a majority for the highest standard of review, but there was a plurality for a high standard of review. And the Women's Rights Project hadn't really been established yet. But with that success and Ruth's pushing for the ACLU to devote more resources to the issue of gender equality, that was sort of the first step along the way.

Lee: So Reed v. Reed is significant in a number of ways. But in her brief, Ginsburg named Pauli Murray and Dorothy Kenyon as co-authors, even though they didn't contribute directly to it at all. Who were Murray and Kenyon, and what was the significance of that move?

Peratis: Well, Pauli Murray was an extraordinary person. I never met her, but Ruth was always in awe of Pauli Murray. She was an African American woman. She became a lawyer. She became a pastor. She wrote academic writings about the intersectionality of race and gender and law and also sexuality.

And she understood how all of those identities worked together to keep women, to keep African Americans, to keep gay people down. And as you said, she didn't actually write the brief, but Ruth was awed by her, how foresighted she was. She was exploring these topics in the '40s and '50s. It was just extraordinary.

Lee: You know, a lot of times when we're talking about women's rights and the suffrage movement, we were kind of by default talking about white women, right? And there are a lot of women of color and Black women especially who were pushing on this. How clear-eyed was Justice Ginsburg on that intersection, and kind of disentangling, you know, women writ large and Black women and minority women in this push?

Peratis: Well, she didn't do cases that, at the ACLU, that explicitly had to do with race. But her debt to Pauli Murray is proof that she understood the importance of the intersectionality. But she was single-minded on just dealing with the gender issue. And the ACLU did race litigation, but that wasn't part of the Women's Rights Project.

And you're right, in the '70s the women's movement tended to be pretty white. There were women of color who were important to the movement, often in politics rather than in this constitutional fight. But that wasn't her main focus.

Lee: So Justice Ginsburg argued six cases before the Supreme Court during her time at the ACLU as general counsel, with the first coming in 1973, Frontiero versus Richardson. Could you explain that case and what the meant? And what were Ginsburg's arguments in that case?

Peratis: Sharon Frontiero was in the Army, and she wanted housing benefits for her spouse. Men got housing benefits for their spouses automatically, because their spouses were assumed to be dependent. Sharon Frontiero wanted housing benefits for her spouse, but she couldn't get them unless she could prove that he was dependent.

And the lawsuit was why should she have to prove it when men didn't have to prove it? And the government's response was that it was easier to do it that way, it was administratively convenient. If the government had to examine whether a spouse was or was not dependent on a case-by-case basis, it would be too expensive. But the fact is, the government didn't examine that when it came to men wanting housing benefits, they just made the assumption. So Ruth's argument was they should either do it for everybody or do it for nobody.

Ginsburg: Opponents believe that appropriate interpretation of the Fifth and Fourteenth Amendments would secure equal rights and responsibilities for men and women. But they also stressed that such interpretation was not yet discernible, and in any event, the amendment would serve an important function in removing even the slightest doubt that equal rights for men and women is fundamental constitutional principle.

In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimke, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

Peratis: She won that argument, that administrative convenience was not a good enough defense. And the Army had to extend housing benefits to everybody, and did.

Lee: And that sounds like a big deal. And I wonder how that victory set the stage for what would come next in terms of women's equality.

Peratis: It was such a big deal, because it was the first time the Supreme Court ever acknowledged that there was such a thing as gender discrimination, and that it was unconstitutional. Sharon Frontiero's housing benefits were obviously not such a big deal, but the acknowledgment of these nine men, for the first time in history, that gender discrimination existed, and that it was unconstitutional, it was an earthquake. It was cataclysmic. And that set the path.

Lee: I think what's amazing and equally crazy is, like, this is 1973. It's not 1873.

Peratis: People have a very short memory. Look at the, look at what's happening today. Let me just say here that times have been as bleak as they are now in the past. Ruth often said that the symbol of America should not be the eagle, it should be the pendulum.

Because the pendulum always swings. The pendulum is, on many issues and for many of us, at one far end now. And it's bleak and it's scary. But it is a pendulum. Once it gets too far to one side, it's got nowhere to go but toward the other side. It's sort of like the arc of history. And it's the same idea. Things have been terrible and they get better.

Lee: We'll be right back with Kathleen Peratis. We're back with Kathleen Peratis. She told me about the kinds of gender assumptions Ginsburg tried to dismantle as she made her arguments at the Supreme Court.

Peratis: Every single case she did, every constitutional case she did, almost every successful employment discrimination case, the core of it is stereotypes. And for LGBT cases also, and for race cases often, the idea is that the law, that the legislature, or constitutional precedent, has a stereotypical assumption about how women are, how men are, how straight people are, how gay people are.

And those stereotypes don't fit everybody, and sometimes they fit a small number of the people who are part of that identity. And her argument always was, "The stereotype might apply to a lot of people, and it's not fair to apply it to people for whom the stereotype doesn't fit."

Lee: You know, we talk about these baked in kind of stereotypes where otherwise intelligent, well-meaning people believe in these stereotypes. And I have to wonder, were there, and I don't wanna overstate the word enemies, but were there enemies made in chipping away at the structural inequalities? Was there, like, was she developing a reputation?

Peratis: I think there were enemies. I think there were groups of people who explicitly wanted to keep women in a subordinate role. But I think the main opposition wasn't enemies of that sort. The main opposition was people who just didn't understand the damage that these stereotypes were doing, or thought that laws that drew a line between men and women, many of them were beneficial for women.

They thought that protective legislation was good for women. Ruth has often talked about how she had to be sort of like a kindergarten teacher with the nine men on the Supreme Court, teaching them something they really didn't know, which is that there is such a thing as gender discrimination, and that the stereotypes which they thought were doing women a favor were not doing women a favor at all. She said, "You think you're putting us on a pedestal, but actually you're putting us in a cage."

Ginsburg: This case, more than any other yet heard by this court, illustrates the critical importance of careful judicial assessment of law-reinforced, sex role pigeonholing defended as a remedy. In practical effect, laws of this quality help to keep women not on a pedestal, but in a cage. They reinforce, not remedy, women's inferior position in the labor force.

Peratis: And it was that process of education that made so much difference.

Lee: Obviously she had something inside of her, a spirit, right? Something that was indomitable. But actually in the courtroom, what was her whole style? How did she get people to actually respond positively to the arguments that she was making?

Peratis: I think the reason her arguments were so effective, I mean one of the reasons, is that she worked so hard getting ready. She knew exactly what every justice on that court had done and said in the past. Some people say, "Nobody says on their deathbed that they wished they had spent more time in the office."

Well, Ruth would never say that, because she spent all of her time in the office, and she absolutely loved it. (LAUGH) It's not just she walked in the courtroom and she was brilliant, she was, but what preceded that argument was hundreds and hundreds of hours of knowing every damn thing.

She was nervous before the argument began in every case, as far as I know, and I was with her on several. But once she started talking, she was in total command of the material. And that didn't come from just being smart, it came from working her ass off.

Lee: And she also brilliantly used men as kind of a cog in the machine driving towards women's rights. So let's talk about the 1975 case of Weinberger v. Wiesenfeld. You were the director of the Women's Rights Project. What was the strategy and argument in that case, and what were the basics of that case?

Peratis: The basics in the case are that Mr. Wiesenfeld, his wife had died in childbirth, and he wanted to get survivors benefits, and the benefits for being the caregiver for the child of a deceased Social Security-covered worker, the rules were then that they were available to widows.

The widow was assumed to have been the dependent when her hundreds died. And so when she was in charge of a child, she was entitled to survivors benefits for the widow and the child. So Stephen Wiesenfeld wanted to stay home and take care of his child and not go to work full-time.

But he was a man and not a woman. Ruth's argument wasn't that he was the victim of gender discrimination, her argument was that Paula Wiesenfeld, the deceased wife and mother, was the victim of gender discrimination, because she had worked, she had contributed to Social Security, and then she passed away.

And her account, her Social Security account, was not going to give the protection to her family that the account of a male worker would've given. So it wasn't the Stephen was the victim of gender discrimination, it's that the family of a woman was being disadvantaged compared to the family of a man.

Ginsburg: But there could not be a clearer case than this one of the double-edged sword in operation of differential treatment accorded similarly situated persons based grossly and solely on gender. Paula Wiesenfeld, in fact the principal wage earner, is treated as though her years of work were of only secondary value to her family.

Stephen Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with a father able and willing to provide care for him personally, is treated as an infant not entitled to the personal care of his sole surviving parent.

Peratis: It was just a brilliant strategy. And it crystallized how the stereotypical assumptions hurt everybody. They hurt the woman as the wage earner. They hurt the man as the survivor, taking care of a child. And this was and extremely sympathetic case. This was a man with a little child who'd lost his wife and wanted to be home with his baby. So it had real jury appeal, the jury in this case being the Supreme Court.

Lee: How revolutionary was that idea, that gender discrimination is not only hurting women, but it's hurting everyone?

Peratis: I don't think it was a seismic shift in social theory. I think feminists have always understood that stereotypes hurt men as well as women. And it's so obvious that they do. Men too are subject to the stereotype of having to be macho, having to be in charge.

All of the demands that are made on men because of their gender, that's not fair either, and it's not even accurate. But I think for the Supreme Court to see it and acknowledge it and render this massively important ruling, after Wiesenfeld, it was hard to imagine losing a constitutional case in which there was a gender line in a federal statute. After Wiesenfeld, they were all gonna fall. It was just a matter of time.

Lee: But still, there is so much, you know, fight left to be had when it comes to equality on so many fronts, including women's rights. And I wonder, when we think about Ruth Bader Ginsburg's legacy, and she became The Notorious RBG, and she had been this massive figure, what advice do you think she would have for young lawyers today who are still fighting for equal gender rights?

Peratis: Well, she did it many times. She had scores and scores, maybe hundreds of interviews over the last ten years during these last ten years when she became The Notorious RBG and the meme and the icon and the hero of millions and millions of women. She said, "Do what your passion tells you to do. Fight hard, and work hard, and do good. Make the world a better place." That was always her advice.

Lee: And she had such a huge impact on our society, but also on you personally. I understand you named your daughter after (LAUGH) Ruth Bader Ginsburg?

Peratis: Yeah, yeah. My older daughter, who is now, oh, I should probably not. Well, yeah, I think she's 44. I keep forgetting how old my children are, I have four. And her middle name is Ruth, and Ruth gave me a baby shower when I was pregnant with her. And she, yeah, she's a good person.

Lee: Kathleen, thank you so much for your time. We really appreciate it. Obviously sometimes these luminary figures seem to loom so large, but I think you brought us into who she was as a person and a lawyer. So thank you very much.

Peratis: Thank you, Trymaine. It was a pleasure speaking with you.

Lee: That was Kathleen Peratis, friend and former colleague to Justice Ruth Bader Ginsburg. Today she's a partner at Outten and Golden, specializing in sexual harassment and workplace discrimination cases. Justice Ruth Bader Ginsburg will lie in repose at the Supreme Court this week.

NPR legal affairs correspondent Nina Totenberg reported that the justice had dictated the following statement to her granddaughter just days before she died. Quote, "My most fervent wish is that I will not be replaced until a new president is installed."

The president and Republican Party leadership do not plan to honor that wish. President Trump said Monday that he would name a nominee to replace Justice Ginsburg by the weekend. Any confirmation will not happen without a fight in the Senate. But if the president's pick is confirmed, it will be his third Supreme Court justice named to the bench.

Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I'm Trymaine Lee. We'll be back on Wednesday.