Tribute to Ruth Bader Ginsburg: The editors of the Case Western Reserve Law Review respectfully dedicate this issue to Justice Ruth Bader Ginsburg.

• Author: Entin, Jonathan L.
• Position: Testimonial

A TRIBUTE TO RUTH BADER GINSBURG: A LAW CLERK'S REFLECTIONS

I was privileged to know Ruth Bader Ginsburg for more than forty years. I was one of her earliest law clerks, and we stayed in periodic touch after that. The editors of the Case Western Reserve Law Review have invited me to provide a few personal reflections. I am honored by this request and hope that what follows does honor to Justice Ginsburg and fulfills the editors' expectations. The discussion proceeds in three stages: first, I will explain why I applied for the clerkship; next, I will describe some aspects of the clerkship and my continuing connections with her; finally, I will offer some observations on her judicial record and her place in our nation's law and history.

I

When I started law school I had no interest in clerking. But several of my professors encouraged me, with increasing levels of insistence, to throw my hat into the ring. I applied to Justice Ginsburg because she was a distinguished legal scholar who also directed a remarkable litigation campaign that resulted in a series of Supreme Court rulings that transformed the law of gender discrimination.

Let's begin with Professor Ginsburg, the scholar. She made her mark early with significant articles on complex procedural subjects in leading law reviews (1) as well as a highly regarded book and several other articles on Swedish law. (2) Indeed, her work on Swedish law led to her receiving an honorary degree from Lund University that was presented to her by King Gustaf VI of Sweden; she hung the diploma on the wall of her chambers. But she also published numerous works on constitutional issues (3) and coauthored the first law school casebook on gender discrimination. (4)

Those latter projects grew out of her work as a lawyer, leading an effort to combat the gender discrimination that was pervasive in our law. When she began her work, the Supreme Court had never in its entire history found a sex-based law to be unconstitutional. But the Court had decided quite a few cases that rejected challenges to such laws. For example, in 1873 the Court upheld the exclusion of women from membership in the bar. (5) One of the opinions in that case, written by a supposedly progressive justice, said that women were too fragile to be lawyers: "The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." (6) Sometimes the Court refused to take gender-discrimination claims seriously. In a 1948 case challenging a Michigan ban on women working as bartenders, the Court said that "to state the [legal] question is in effect to answer it." (7) And as late as 1961, the Court upheld the effective exclusion of women from jury service because they were "the center of home and family life." (8)

That changed in the 1971 case of Reed v. Reed, (9) which struck down an Idaho law that preferred men over women as administrators of estates. Professor Ginsburg did not argue that case, but she wrote the brief. This seemingly small case--and a tragic one, involving the aftermath of a teenager's suicide (10)--was the first time that the Supreme Court found any form of gender discrimination to be unconstitutional. (11) She soon built on that foundation in a series of cases that she argued and others in which she wrote amicus briefs and often advised the lawyers who did argue.

Her first oral argument at the Supreme Court came in Frontiero v. Richardson, (12) decided in 1973, which struck down a discriminatory Air Force rule about housing and similar benefits: married male officers could automatically qualify for those benefits, but married female officers could get them only if they could show that their husbands depended on them for more than half their support.

Two years later, she won the case of Weinberger v. Wiesenfeld, (13) which struck down a provision of the Social Security Act that gave benefits to the widowed mother of small children but denied them to widowers who had small children. Stephen Wiesenfeld's wife died in childbirth, leaving him to raise their son alone. Justice Ginsburg always said that Wiesenfeld was her favorite client; he testified at her Supreme Court confirmation hearing, and in 2014 she performed Stephen Wiesenfeld's second marriage--with his son Jason in attendance (she also had performed Jason's marriage some years earlier). (14)

And in 1976, she advised the lawyers and wrote an important amicus brief in Craig v. Boren, (15) which established intermediate scrutiny as the constitutional standard for gender-discrimination cases. This was an unusual case, because it involved a state law that required men to be twenty-one before they could buy low-alcohol beer but allowed women to buy the same product at eighteen.

There were other cases along these lines, (16) and by the end of the 1970s the Supreme Court had made clear that gender discrimination was no longer trivial but instead required a substantial legal justification. Ruth Bader Ginsburg was primarily responsible for this dramatic transformation. Not only did she make creative and ultimately persuasive legal arguments, but she also devised a brilliant litigation strategy. She proceeded incrementally, sometimes with male plaintiffs and sometimes with married couples. She understood that she had to persuade nine middle-aged and older men to take gender discrimination claims seriously, and she recognized that they would be more open to doing that if she could show them that traditional notions of gender roles affected men as well as women.

II

I did everything wrong in applying for my clerkship with Justice Ginsburg during my second year in law school. Based on incomplete information, I assumed that she was already on the United States Court of Appeals for the District of Columbia Circuit so sent my application to her in Washington. Some time later, I got a nice letter from her--on her Columbia Law School letterhead--explaining that her nomination had only recently been sent to the Senate. But she also asked me for more information. After I sent that material, she asked for more, so I sent that. Then she invited me to interview at her New York home, even before she was confirmed.

When I arrived shortly after 9:30 a.m. on June 18, 1980, her son welcomed me by saying: "I was going to ask why you want to clerk for an unconfirmed judge, but I can't do that. The Senate just confirmed her a few minutes ago." So I was the first person she saw outside of her family after receiving that news. Our conversation was repeatedly interrupted as she took congratulatory phone calls. Eventually she made me the offer, which I happily accepted.

Although my clerkship would not begin for another year, she made sure that I received all the slip opinions from the D.C. Circuit so that I would know what the court had been up to when I started. She even welcomed my having caught a faulty citation in one of her opinions. (17)

Justice Ginsburg was a superb judge and a great boss. She didn't have formal rules. For example, her office manager told the previous clerks that they couldn't leave work while the judge was still there. Justice Ginsburg was not a morning person--I rarely saw her before 10 a.m. all year except on days when she heard oral arguments--and she worked very late. One evening around seven o'clock she came out of her office to get a cup of coffee and saw that all the clerks were at their desks. She asked why they were still there at such a late hour. They told her what the office manager had said about not leaving while she was still in chambers. The judge laughed and said that she had no...