In his new book, National Constitution Center president Jeffrey Rosen shares an intimate look at the life and views of his friend Supreme Court Justice Ruth Bader Ginsburg. In Conversations With RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law, Rosen shares a series of frank conversations with Ginsburg on topics including the future of Roe v. Wade, the cases she would most like to see overturned, how to be a good listener, and, as you’ll read in this excerpt, how the #MeToo movement took her by surprise.
JR: What are your thoughts on the #MeToo movement, and will it prove lasting progress for women’s equality?
RBG: Sexual harassment of women has gone on forever, but it didn’t get headlines until a woman named Catharine MacKinnon wrote a book called Sexual Harassment of Working Women, and that was the start of litigation under Title VII [of the Civil Rights Act]. A few cases came to the Supreme Court, and women prevailed. But still, women were hesitant. A principal reason for the hesitancy was that women feared they would not be believed. The number of women who have come forward as a result of the #MeToo movement has been astonishing. My hope is not just that it is here to stay, but that it is as effective for the woman who works as a maid in a hotel as it is for Hollywood stars.
JR: Many women are wondering, will this prove a lasting advance for women or, like previous discussions of sexual harassment in the ’90s, will this advance pass?
RBG: I think it will have staying power because people, and not only women — men as well as women — realize how wrong the behavior was and how it subordinated women. So, we shall see, but my prediction is that it is here to stay.
JR: Why is it happening now? Is there something about what millennials are doing that has caused the #MeToo movement, or is it something else?
RBG: I think we can compare it to the gay-rights movement, when people stepped up and said, “This is who I am, and I am proud of it.” They came out in numbers instead of hiding, disguising. That movement developed very rapidly, and I think we are seeing the same thing with sexual harassment.
JR: Did you see this one coming?
My hope is not just that [#MeToo] is here to stay, but that it is as effective for the woman who works as a maid in a hotel as it is for Hollywood stars.
RBG: No. And why did it happen just when it did? I’ve heard from women who told stories about Harvey Weinstein many years ago. And then, one ﬁne day, the Times decided to do a big story on it. I think it was the press ﬁnally reporting something they knew long before that propelled #MeToo to the place it now holds in the public arena.
JR: What is your advice to all women about how to sustain the momentum of the movement and to make its changes lasting?
RBG: I have heard from lawyers about women coming forward with reports of things that happened many years ago, even though the statute of limitations is long past. These cases are being settled. One interesting question is whether we will see an end to the conﬁdentiality pledge. Women who complained and brought suit were offered settlements in which they would agree that they would never disclose what they had complained about. I hope those agreements will not be enforced by courts.
JR: What are the legal changes necessary to make these reforms permanent?
RBG: We have the legal reforms; we have had them for a long time. Title VII. It was argued early on that sexual harassment has nothing to do with gender discrimination. Everyone knows boys will be boys, and that was that. There are state and federal laws proscribing harassment. The laws are there, the laws are in place. It takes people to step forward and use them.
JR: You’ve told your own #MeToo story, about an encounter at Cornell long ago.
RBG: I was in a chemistry class at Cornell. I was not very adept in the laboratory, so a teaching assistant decided to help me out. He offered to give me a practice exam the day before the actual exam. The next day, I picked up the actual exam paper and found that it was identical to the practice exam. I knew immediately what this instructor expected as a payoff. So, instead of being shy, I confronted him and said, “How dare you do this?” That is one of many, many stories every woman of my vintage can tell.
JR: What would you advise women to say in a similar situation? Should they be similarly strong?
RBG: Yes. Say: “This is bad behavior. You should not engage in it, and I will not submit to it.” But I think it is easier today because there are numbers to support the woman who says so. We no longer hear as often as we did in the past, “She’s making it up.”
JR: What is your advice to men in this new regime where people are trying to behave well and ﬁgure out what the new norms are?
RBG: Just think how you would like the women in your family to be treated, particularly your daughters. And when you see men behaving in ways they should not, you should tell them this is improper behavior.
JR: There is a debate both among women and among men about what sort of behavior should be sanctionable. One group is saying that it’s wrong to lump together violent behavior like Harvey Weinstein’s with less dramatic forms of sexual misconduct, and others say that all misconduct is wrong and should be sanctioned.
The more women that are out there doing things, the better off all of us will be.
RBG: Well, there are degrees of conduct, yes. But any time a woman is put in a position where she is made to feel inferior, subordinate, there should be — she should complain, she should not be afraid.
JR: What about due process for the accused?
RBG: Well, that must not be ignored, and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that, at the same time recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard. That’s one of the basic tenets of our system, as you know: everyone deserves a fair hearing.
JR: Are some of those criticisms of the college codes valid?
RBG: Do I think they are? Yes.
JR: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality.
RBG: It’s not one or the other. It’s both. We have a system of justice where people who are accused are entitled to due process. So one must apply to this ﬁeld what we have applied generally.
JR: What is your message to the next generation of feminists? What goals remain to be achieved?
RBG: Eliminating unconscious bias. It’s powerfully hard to root out. Unconscious bias — well, my favorite illustration is the symphony orchestra. When I was growing up, you never saw a woman in a symphony orchestra except perhaps the harpist. Howard Taubman, a well-known music critic for the New York Times, swore he could tell the difference, blindfolded, whether it was a woman or a man playing the piano, or the violin. Someone had the bright idea of putting him to the test. He was blindfolded and what happened? He was all mixed up. He identiﬁed a pianist as a man when it was a woman, and he was good enough to admit that unconscious bias was operating. So someone got the even brighter idea to put up a curtain between the people who are auditioning and the judges. And that simple device almost overnight led to women showing up in symphony orchestras in numbers.
Now, I wish we could have a drop curtain in every ﬁeld of endeavor. One example of the unconscious bias that still exists was a Title VII suit brought in the late ’70s. The plaintiffs were women who had not succeeded in getting middle-management jobs at AT&T. They did very well on all the standard criteria, but they ﬂunked disproportionately at the last stage. What was that last stage? It was what was called a “total person test.” The “total person test” was an executive interviewing the candidate for promotion. And why were women dropping out disproportionately? The executive experienced a certain discomfort in dealing with someone who is different. If he’s interviewing a man, well, he sort of knows “this person is just like me,” and he’s comfortable. But if it’s a woman, or a member of a minority group, he feels uncomfortable. This person is a stranger to him, and that shows up in how he rates the candidate.
JR: So the solution to unconscious bias is to bring men and women together?
RBG: Well, the more women — this is something that Justice O’Connor often said, that women of our age should get out there and make a good show, and that will encourage other women, and the more women that are out there doing things, the better off all of us will be.
Jeffrey Rosen is president and CEO of the National Constitution Center. Rosen will discuss Conversations With RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law (Henry Holt & Co.) with Dahlia Lithwick, veteran Supreme Court reporter, on Wednesday, Nov. 6 at 6:30 p.m. A book sale and signing will follow the program. constitutioncenter.org.